Summary: Mrs F complains of multiple faults in the Council’s consideration of a planning application for an agricultural building in a field next to her home. We find fault in how the Council summarised certain matters in a planning report and for omitting certain conditions to its planning permission which it said it would do. However, we do not find these faults caused Mrs F an injustice and so we have completed our investigation.

The complaint

1. I have called the complainant ‘Mrs F’. She complains about the Council’s decision to approve planning permission for an agricultural building in a field next to her home. Mrs F says the Council acted with fault in its consideration of the planning application because it:

• put a site notice advertising the application in the wrong location;
• did not adequately consider the justification for the building; Mrs F says the Council did not follow its local planning policy requiring this;
• did not properly consider the impact of the building on her; in particular, by not requiring the applicant to plant screening around the building;
• did not properly consider the potential for the building to cause nuisance from noise, light and/or dust;
• did not properly consider the potential for the building to cause flooding problems;
• did not properly consider the impact of increased traffic on the road serving the development;
• did not properly consider the potential for damage to a gas pipe which runs under the development site;
• wrongly advised committee members considering the application about circumstances where permitted development rights allow for agricultural buildings;
• failed to apply conditions on the development which it had included in an addendum report to the planning committee;
• delayed in answering Mrs F’s complaint.

2. Mrs F says the Council has therefore approved a building which will have a negative impact on her and on other residents in the village where she lives. Mrs F considers the building will have an unacceptable impact on her outlook and cause potential nuisance through noise, light and dust. She also considers it may cause flooding problems for her garden. She says increased traffic movements will cause damage to the lane serving the building which also runs past her house.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we consider:

• fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

7. Before issuing this decision statement I considered:

• Mrs F’s written complaint and any supporting information she provided;
• information available in the public domain on the Council’s website about the planning application at the centre of Mrs F’s complaint;
• further information provided by the Council in reply to my written enquiries;
• relevant national planning guidance and local planning policy – both referred to in more detail below;
• any comments made in response to a draft decision statement setting out my proposed findings which I sent to both Mrs F and the Council in March 2020.

Back to top

What I found

8. I have considered each part of Mrs F’s complaint in turn.

The complaint about the site notice

9. I have not pursued enquiries into this part of the complaint. Mrs F pointed out that photographs taken by the planning officer show the adjacent field to the development site. They also show a site notice advertising the application in this location. This information suggests therefore, some misunderstanding by the Council about the location of the proposed development at the outset of its consideration of the case.
10. However, I did not find any potential injustice would result to Mrs F from the Council placing a site notice in the wrong location. Mrs F (and other residents of the village where she lives) contacted the Council with representations and objections to the planning application. The purpose of a site notice is to publicise an application and encourage comments from members of the public potentially affected by it. I do not find the site notice’s position therefore had any negative impact on Mrs F’s ability to comment on the application.
11. Nor did I find other evidence to suggest the Council misunderstood the application’s location as it went on to consider it in detail. For example, the later report to a planning committee clearly showed the Council understood the siting of the proposed building and its relationship to Mrs F’s house as its nearest neighbour.

The complaint about the business case

12. I find fault in the Council’s consideration of this matter. However, I do not find it caused injustice to Mrs F.
13. The planning application at the centre of this complaint proposed an agricultural building around three miles from the applicant’s main farming complex. The applicant proposed use of the building as a dedicated store for a crop where they have a contract to provide this product to a particular supplier.
14. The applicant and/or their agent said the need for this separate store resulted from:

• Having outgrown temporary storage facilities.
• Wanting to site the store close to where the farming operation took place.
• Wanting to ensure bio security and avoid contamination with other food stocks (for example animal feeds).
• New rules, regulations and codes of practice.

15. The applicant provided a letter of support from the contractor’s agronomist. The letter said “having the long term store nearer the area of production […] has benefits for both harvest management and bio security”.
16. In objections to the planning application Mrs F said the applicant had not established a justification for the building away from the main farm complex. Mrs F consulted with experts in the field, including the Animal & Plant Agency and Red Tractor scheme (a food assurance scheme) and shared their advice. This suggested the crop did not require a separate store to other food stuffs, although it suggested this as desirable. It did not suggest a separate geographical location necessary for storage (i.e. that a store building could be anywhere on a farm). Another objection made by Mrs F was that the applicant would bring product from other parts of their farm to store in the building. She has drawn my attention to the size of the farming business and says the applicant farms the crop from other locations as well as the field next to her home.
17. The Council asked its planning committee to consider the merits of the planning proposal. The committee received a report from planning officers recommending approval. This set out in full a local planning policy ‘RUR2’ which covers applications for new agricultural buildings. This says:

• “New agricultural buildings should be integrated into the existing farm complex wherever possible to reflect the traditional clustering of rural buildings.
• Where there is justification for a new farm building to be built in isolation from existing building, permission will be granted subject to other criteria”.

18. Those ‘other criteria’ require the Council to consider the building’s setting in the landscape, planting and appearance.
19. The report went on to say the policy “only requires applicants to submit a justification for an agricultural building outside of the existing buildings of a farm complex”. I consider this an over-simplification. I find policy ‘RUR2’ clearly creates a two-stage test. First it asks if there is a justification for a new farm building. Second, is there is a justification for building in isolation from the existing farm complex. Simplifying the policy could dilute its clear intent, which is to encourage building within the main farm complex where possible.
20. I find that because the Council over-simplified the policy test, the argument for justification merged the two considerations. I am satisfied the applicant provided evidence relevant to answer the two tests set out in policy. But I do not consider the Council examined their case sufficiently. In particular, the Council did not establish:

• Details of the farming operations to find out where the applicant grows the crop for contract. It relied only on general statements about this.
• The location of the existing temporary store and the feasibility of storage at the main farm complex. It asked no questions about this.
• What rules, regulations and code of practice the applicant referred to. It asked no questions about this.

21. I consider these lines of enquiry necessary to make a robust decision on whether the applicant could satisfy the two tests set out in the relevant policy. Because the Council did not ask them I cannot say it took all relevant information into account before approving this development. So, I must find fault with its consideration of this matter.
22. However, I do not consider the fault has caused injustice to Mrs F. This is because I could not say a more robust examination of the applicant’s case is likely to have led the Council to reach a different decision. In turn, this is because:

• A decision on the planning application rested on an analysis of several relevant planning considerations. Planning policy ‘RUR2’ while clearly relevant was only one such consideration.
• While the planning policy creates a presumption against siting agricultural buildings away from the main farm complex, it does not bind the Council’s hands. Even if the applicant’s case was not totally persuasive on the need for a separate building away from the main farm complex it would not prevent the Council making an ‘exception to the rule’.
• I find the applicant provided evidence which went at least some way to satisfying the tests of the policy. They may have provided more if asked. It would be speculative to suggest they could not have provided this.
• I do not find the evidence compiled by Mrs F could have dealt any fatal blow to the potential justification of the building. For example, the expert advice Mrs F obtained cast doubt about whether there were relevant new rules, regulations or a code of practice relevant to the application. But they did not cast doubt on the desirability of a separate store or that the applicant’s contract may require this.

The complaint about the visual impact of the building

23. I do not find fault in the Council’s consideration of this matter.
24. The agricultural building’s proposed location lies around 40 metres at its nearest point from Mrs F’s home. The building will be around 22 metres in length when viewed from her home. It will be around 7.5 metres high. It is a standard design for an agricultural building. There are no windows or doors in the side of the building which will face Mrs F’s home. The plans propose construction from a combination of concrete and wooden panels.
25. Mrs F does not welcome the prospect of viewing the building from her home. She considers that when approving the development, the Council should have required the applicant to plant screening around it.
26. The planning report to committee set out the Council’s consideration of the impact of the building on neighbours. Officers noted the separation distance and design features I have listed above. They said this meant the building created no potential for overlooking and was not overbearing. Further the report said the building was typical of agricultural buildings found throughout the district, which has a rural character. Consequently, officers considered it would not cause harm to Mrs F’s amenity or have a negative impact on the landscape of the surrounding area.
27. I consider this judgment one that Council officers could reasonably reach on the facts. It follows that I also consider Members of the planning committee could therefore support that judgment. I cannot see that officers introduced into the report any factually inaccurate or irrelevant considerations when weighing up this impact of the development. Nor did they overlook anything relevant. Local planning policy required them to evaluate the impact of the proposal on neighbours and more widely on the landscape. But it placed no presumption on requiring screening. I consider the Council could choose not to require the applicant to plant screening when giving planning permission.
28. It follows from what I have said above that I consider the Council approached this part of its decision making correctly.

Complaints about potential nuisance associated with the building

29. I do not find fault in the Council’s consideration of this matter.
30. There are three potential nuisances associated with the use of this building that Mrs F has concerns about. I have considered first the potential impact of nuisance from light. During its consideration of the application the Council asked the applicant what lighting they proposed, because as part of their farming business they will sometimes use the building during hours of darkness. The Council set out details of the applicant’s response in the committee report.
31. The report said the limited lighting proposed, over the entrances to the building (neither of which face Mrs F’s home) were not a “significant material planning consideration”. This was because the lighting was not of a brightness which would impact on Mrs F or any other nearby resident.
32. I consider that was a reasonable judgment the Council could reach on the facts. So, I find it considered this matter properly.
33. The second and third concerns Mrs F has centre around noise. Work at the farming business can start in the early hours of the morning. Mrs F thinks it likely this could encompass the use of the agricultural building. She notes the Council imposed a condition requiring construction of the building only take place within set working hours. Mrs F finds it perverse the Council would not impose a similar condition on the building’s use.
34. The Council has explained that it does not impose planning conditions limiting the hours of agricultural buildings. It points to “the nature of agricultural businesses which are unrestricted and seasonally may take place at any hour of the day”. It considers any limit on working times unreasonably restrictive taking account of government guidance which advises when planning authorities should use planning conditions (which I consider further below). It also notes that permitted development rights (where the applicant does not need planning permission) apply for many agricultural buildings. The permitted development regime imposes no limits on the hours of use of such buildings.
35. I consider these reasonable factors for the Council to take account of. I note also that in this case the proposed use of the agricultural building would not be one specifically associated with night-time working. Any night-time working will likely be the exception and not the rule. On balance therefore I am satisfied the Council did not need to consider imposing a condition on hours of operation in its planning permission.
36. The other noise issue relates to the potential use of a grain dryer as part of the use of the building (which Mrs F considers may also cause a dust nuisance). The activity proposed in the building could necessitate a grain dryer. Also, in a presentation to the local parish council the applicant reportedly said they would use a grain dryer in the building. The Council’s environmental health service advised imposing a planning condition which would require separate planning consent for use of a dryer in the building.
37. Council planning officers rejected this advice. They did so after noting a grain dryer formed no part of the application. They also received advice from the applicant’s agent that a grain dryer would not be used. The committee report reflects this. The Council argues that in these circumstances a condition would not meet the six tests in government advice of being:

• necessary;
• relevant to planning;
• relevant to the development;
• enforceable;
• precise;
• reasonable.

38. The Council also says that if the applicant goes on to use a grain dryer and this causes unwanted noise for Mrs F that she can report it to its environmental services. They can consider if noise (or dust) from the dryer is a statutory nuisance as defined by the Environmental Protection Act 1991. If so, then in some circumstances the Council can enforce to try and prevent the nuisance.
39. On balance, I am satisfied the Council’s position is one it can reasonably take. I am not convinced that a condition against installing grain drying equipment in the future would have fallen foul of the ‘six tests’. However, I consider without any certainty such equipment will be on site the Council could view a condition as unnecessary. This is after giving weight to the Council making extra checks of the applicant in this instance.
40. Where the Council has two reasonable courses of action open to it, I will not find fault in its choice of one over the other.

The complaint about the Council’s consideration of flood risk

41. I do not find fault in the Council’s consideration of this matter.
42. The application site lies in Flood Zone 1. In her objections to the development Mrs F drew attention to build-ups of standing water on the field where the building will be located. Mrs F thinks any development may worsen this. And that it may affect her adjacent garden in turn.
43. That is an understandable concern. But I find the Council properly consulted the local County Council as part of its consideration of the application, which is the lead local flood authority. The County Council did not object to development. Although it did ask the Council to impose a planning condition requiring the applicant to show how they would prevent surface water run-off on to the lane serving the site. The Council went on to do this.
44. Mrs F said in a discussion with a planning officer she understood the Council would also ask the applicant to undertake percolation tests before development began. The Council says this is wrong. It says the officer said the Council may ask for such tests, if recommended by the County Council. But as the County Council did not request this condition, the Council thought it unnecessary to do so.
45. I cannot resolve a dispute about a disputed conversation. But overall, I am satisfied the Council did not need to do more. I think it would have been preferable had the report to committee also addressed wider concerns about drainage. Mrs F’s concerns went beyond the lane serving the development.
46. But without evidence pointing to a risk of the development worsening surface water on the field, then I cannot see the Council had any duty to go further in its consideration of this matter.

Complaint about traffic impacts

47. I do not find fault in the Council’s consideration of this matter.
48. The lane serving the development is narrow. The development will inevitably lead to more traffic using the lane. That will be either because of the applicant delivering crop to the store or the contractor collecting that stock. The applicant also proposes using some of the store for machinery and this too will presumably lead to more traffic movements.
49. The Council planning policy DEV3 says that it can refuse development if proposals result in a “severe impact in terms of road safety and increased traffic congestion”.
50. The Council decided this development would not have such an effect. It did so after consultation with the County Council which is the local highways authority. The County Council recommended a planning condition requiring any gate serving the entrance to the building open inward (which the Council adopted). It also proposed another condition around hardstanding surfacing which I return to below (which the Council did not adopt). But it did not raise objections to the proposal based on concerns about the numbers of traffic movements.
51. I consider the Council could reasonably rely on the County advice on this matter. It clearly saw no congestion concerns arising from the development.

Complaint about the gas pipe

52. I do not find fault in the Council’s consideration of this matter.
53. A main gas pipe runs under the development site. The applicant proposes siting the agricultural building away from the pipe. But the development proposes an area of hardstanding for vehicles entering the site and turning above the pipeline. Mrs F has concerns the heavy vehicles which will use the site may pose a health and safety risk to the pipe.
54. The Council consulted the local gas distributor to advise them of the plans. They raised no objection. Mrs F says this consultation took place before the applicant presented any details about the nature of the hardstanding next to the building. Therefore, it would not necessarily have been obvious to the distributor that vehicles may turn above the pipe.
55. While I note Mrs F’s concern, I consider it would be obvious to the gas distributor that its pipe lay within the ‘red line’ of the development and where vehicles may drive and turn. I consider it could therefore have sought more information from the Council about the applicant’s plans for any vehicle entrance or turning area if it thought it necessary. Consequently, I consider the Council could reasonably decide the application without further consultation.

The advice given to committee on permitted development rights

56. I find fault in the advice given to planning committee. However, I do not consider this caused injustice to Mrs F.
57. As part of the report to committee the Council invited Members to consider what the applicant could build without planning permission under ‘permitted development’ rights. The Council explained planning permission is not always needed for agricultural buildings up to 12 metres high and up to 1000 square metres in area. The building here is around 300 square metres. The report explained the applicant needed permission here because the proposed building would be within 25 metres of a road. This meant permitted development rights did not apply. But by implication the applicant could erect the same agricultural building elsewhere in the field without permission.
58. I do not find the advice given to committee contained any wrong information. I also think it acceptable as a principle, for the Council to sometimes compare proposed development with that which an applicant could build without permission.
59. However, as Mrs F says, the advice given to members in this case was incomplete. There are further qualifications which apply before an applicant can build an agricultural building under permitted development rights. For agricultural units of over five hectares applicants must still tell the Council of their intent. The Council then has 28 days to decide if it is necessary to give ‘prior approval’ for the building. If a building “is likely to have a significant impact on its surroundings” then the Council may require “the formal submission of details for approval”.
60. I consider it was fault for the report not to add reference to this qualification. It reads as if ‘permitted development’ automatically conferred the right for the applicant to erect this building more than 25 metres from the road. However, while I consider Members should have been more thoroughly advised of the law, I do not think it would have made any difference to their consideration of this application. This is because:

• This is a district with a rural character. I would expect Members encounter many applications for agricultural development. They should already have familiarity therefore with the permitted development regime for agricultural buildings.
• Even if the report had provided a more qualified summary of permitted development rights, the Council could still have indicated that it did not consider a similar development elsewhere on the land would have a significant impact on its surroundings. So, the comparison with permitted development rights would remain valid.

The failure to apply conditions

61. I find fault in the Council’s failure to apply conditions to the planning application that it said it would. However, I do not consider this caused injustice to Mrs F.
62. As well as the main report to planning committee Members received an addendum report. This proposed two further planning conditions. One on advice from the County Council highways authority asked the applicant to provide the access “in bituminous or cement bound materials” for “at least eight metres”. This was in the interests of highway safety.
63. A second said “notwithstanding the approved plans” the applicant had to construct the building in the way described.
64. Also, the Council said that it would add to the ‘approved plans’, one which showed the extent of hardstanding and location of a proposed drain across the access.
65. The committee approved the recommendation to approve development, including with the proposed conditions in the addendum report. But the Council then failed to add the conditions in the addendum report to the decision notice. It also failed to include the plan showing the extent of hardstanding and proposed drain to the list of ‘approved plans’ contained in the decision notice. It recognises it was at fault for this.
66. However, the Council says this oversight will not have caused injustice to Mrs F. This is because:

• The approved plans and application form provide sufficient planning controls.
• It still has control over the drainage from the site given the planning condition which refers to this.

67. It sits uncomfortably that the Council which has defended vigorously not imposing certain conditions wanted by Mrs F, should seek to lessen the impact of its error here. This might suggest the proposed conditions were not necessary to begin with when the Council has stressed the need to only impose conditions when they are necessary.
68. However, I agree with the Council’s analysis that none of these failures need have a harmful impact on Mrs F. I note the Council said in its decision notice the applicant should build in accord with the “approved plans” and included in that list was the application form. This describes construction materials and using ‘gravel and hardcore’ to form an access drive and area of hardstanding. Therefore, I do not consider the Council has lost all control over the construction of the entrance to the site.
69. The County justified the condition specifying a method of construction for the access for reasons of highway safety. I assume a concern for highway safety would be the potential for large agricultural vehicles or trucks to deposit mud on the road. This is something Mrs F already highlights as a problem (she has given me photographs to show this). I assume that a less exacting method of construction may still run this risk. However, I think it reduced so long as the applicant still provides hardstanding as set out in the application form. So, I cannot see this issue will worsen the current road condition for Mrs F.
70. I also agree with the Council that the applicant remains obliged to provide a method of drainage to prevent water flowing on to the highway because there is a relevant planning condition requiring this. So, this too means the Council keeps control over that aspect of the development despite not including the plan showing the method of drainage with the approved plans.

Delay in complaint handling

71. I have not pursued enquiries into this part of the complaint. Mrs F has shown the Council did not meet its published timescales for acknowledging or responding to her complaint. So, it may have been at fault here. However, I find any delay in response amounted to a week or less. While I recognise this may have caused some frustration to Mrs F I do not consider this significant enough to be considered an injustice.

Conclusion

72. In summary therefore I find some evidence of fault in the Council’s consideration of the planning application at the centre of this complaint. But I find none of these errors likely to have influenced the final decision by committee to approve the application at the centre of the complaint. I encourage the Council to reflect on how it can learn lessons to avoid over-simplification in planning reports of the tests required by its local planning policy or explanations of matters such as permitted development for agricultural buildings. It might also consider how it can avoid a repeat of the error which led it to omit planning conditions it agreed to add to a development in an addendum report.

Back to top

Final decision

73. For reasons set out above I find fault by the Council but this did not cause injustice to Mrs F. I have therefore completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman