Summary: Mr X complained about the Council’s decision to vary a planning condition that controls the use of the building next to his home. There was no evidence of fault in the way the Council made its decision.

The complaint

1. Mr X complains the Council failed to properly consider an application to vary a planning condition for the use of the building next to his home. Mr X says that, as a result of the Council’s decision, he and other residents will be disturbed by increased:
• noise from those that use the site;
• disturbance and inconvenience from increased vehicles visiting the site.
2. Mr X also believes that, because there were so many objectors, the decision should have been made by a planning committee, rather than an officer using delegated powers.

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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. 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)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the delegation scheme and the case officer’s report.
6. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. After a planning permission is granted, it is possible to apply to vary a planning condition.
12. Regulations set out the minimum requirements for how councils publicise planning applications.
13. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
14. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
15. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
16. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.

Background

17. Mr X lives next to a building that was once a house but is now used by a business. The use of the building has the potential to attract visitors and generate noise. The Council had previously approved the use of the site subject to conditions to limit the number of individuals who could use it during the working day.
18. The site owner/operator applied to vary the condition which controlled the number of people who could use the site.
19. The Council publicised the application to give the public and other consultees an opportunity to comment. Mr X objected to the application, because the increase in visitors would cause harm to his amenity from noise and increased traffic movements.
20. A planning case officer wrote a report, setting out their considerations and recommendations.
21. The case officer report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
22. Mr X says the highways officer’s judgement was flawed, because it did not have up-to-date traffic survey information and relied on reports that were several years old. He also says the applicant’s proposals relating to protecting amenities, were ‘spurious’ and should not have been accepted by the Council.
23. The highways officer took account of the planning inspector’s reason for imposing a limit on the number of people using the site for amenity reasons. This was because of concerns about the impact on amenity, such as noise, rather than highway safety issues. The highways officer did not object to the application.
24. The public protection officer initially had concerns that increased numbers of people would have a harmful impact on amenity, particularly by causing noise. The officer’s concerns were satisfied by imposing time and number limits on certain parts of the site.
25. The decision was approved by a planning officer using delegated powers. Mr X says the decision should have been taken by planning committee, because of the large number of residents who objected to the application.

My findings

26. Mr X believes the Council has made a poor decision. He believes that, based on the information available to them, the Council’s officers should have acted differently.
27. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. In the absence of fault in the process, we cannot comment on the judgements that are made by the Council and its officers.
28. I checked the Council’s delegation scheme and found no reason why the decision to vary the planning condition should not be made by an officer using delegated powers. The scheme includes several triggers for when decisions should be decided by planning committee, but the number of objections is not one of them.
29. I read the planning case officer’s report, which included:
• a summary of relevant planning history, including a decision by the planning inspectorate;
• comments from neighbours and other consultees, including public protection and highways officers;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and public protection matters;
• the officer’s recommendation to approve the application, subject to planning conditions.
30. Mr X responded to a draft of this decision with detailed comments on why he thinks the application should not have been delegated or approved. The case officer’s report shows the Council’s reasoning and it is not for me to comment on the judgements it has made.
31. I can see that before it made its decision, the Council has taken account of material planning considerations and followed the process we would expect, and in these circumstances, I find no fault in the way it made its decision.

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Final decision

32. I completed my investigation as there was no fault in the process by which the Council made its decision.

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Investigator's decision on behalf of the Ombudsman