Melton Borough Council (19 011 941)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 31 Mar 2020

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint which alleged fault with the Council’s decision to grant planning permission for a development as well as its handling of planning enforcement matters.

The complaint

  1. Ms X complains about the Council’s decision to grant planning permission for a development as well as its handling of planning enforcement matters she raised. Ms X wants the following matters examined by the Ombudsman:
    • The adequacy of the members’ register of interest as operated by the Council.
    • The effectiveness of declarations of interest for public and council transparency.
    • The robustness of officer advice – notably legal and professional advice.
    • The adequacy of the Council’s adherence with legal requirements for consultation on planning proposals.
    • The adequacy of the Council’s enforcement of planning conditions.
    • The adherence of the Council with its adopted local plan and relevant neighbourhood plan policies.
    • The responsiveness of the Council to concerns and petitions raised by local people.
    • The professional behaviour of officers in respect of the planning application and subsequent iterations.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
  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

  1. I reviewed the complaint and information provided by Ms X and the Council. I sent a draft decision statement to Ms X and the Council and invited the comments of both parties on it.

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What I found

  1. The Council granted planning permission for development of a parcel of land on three separate outline planning applications in 2016 and 2017. The applications proposed development of 35 houses on the edge of a village. A complaint about these decisions is caught by the time restriction on the Ombudsman’s power to investigate complaints but I refer to these applications for background only.
  2. In 2018, the Council granted full planning permission for an application that proposed three houses on a part of the same land.
  3. Later in 2018, the Council also considered an application that sought to consolidate the outline approvals. The application sought full planning approval for a development of 36 houses.
  4. Ms X does not live close to the application site. The Council publicised the application through a combination of a site notice and neighbour notification. It received two objections from the public.
  5. The applicant made amendments to the application. The Council publicised the amendments. This time it received a higher number of objections. It also received a petition signed by over a hundred residents including Ms X. The application was referred to the planning committee. The first hearing of the application before the committee was in May 2019.
  6. Ms X registered to speak at the committee meeting. She said the committee should make a decision consistent with the original permissions. She said:
    • there would be a net gain of seven houses;
    • there should be a commitment to retain hedges and footpaths;
    • the rural character of the area would be destroyed;
    • a hedge had already been destroyed;
    • the development would be out of keeping with the rural community;
    • there would be a loss of amenity;
    • there would be a loss of a nature corridor;
    • the applicant should stay within the original approvals which are more consistent;
    • if the Council granted planning permission for the proposal they would appeal to the Secretary of State regarding the loss of the footpath.
  7. The report to the planning committee set out national and local plan policies that applied to the proposal. The report stated the main issues for the application were the position under the development plan policies; the principle of development; the impact upon the character of the area; impact on residential amenities; highway safety; ecology; impact on hedges; and impact on the public footpath.
  8. The report then set out officers’ views on these issues. The report recommended a grant of planning permission.
  9. The minutes of the meeting show there was extensive discussion of the application by members of the committee. Members asked questions of Ms X, the applicant’s agent as well as planning and legal officers.
  10. The committee decided to defer the application as members wanted more information on various matters including density of the development; car parking and road safety; school places; maintenance of hedgerows; ecology; height of houses and land levels.
  11. Officers reported back to the committee at its next meeting in June 2019. They provided the information the committee sought.
  12. With regards to density, officers explained the land subject to previous approval for 28 houses retained the same number while an area that had permission for four houses would now have eight houses.
  13. Three plots were 2.5 storeys in height and designed to have roof lights. The applicant’s agent suggested that these could be set above 1.7metres above the finished floor level to prevent overlooking. This would be secured by condition.
  14. The applicant explained there would be additional 2.5 storey dwellings through the site to vary the streetscape. The eaves line of the 2.5 storey dwellings would be set above the first floor windows.
  15. The applicant offered to reduce the roof ridge of the houses to 9.2m above ground finished floor level on the 2.5 storey dwellings on three plots 5,6,7 & 8 if the committee considered this would make the scheme acceptable when coupled with a 27 metre separation distance.
  16. In terms of play provision, officers explained the site was 420 metres to the play area next to the village hall and 300 metres to a recreation ground. But officer pointed out there was 450m2 available space on site for a play area if the committee wanted to secure a play area.
  17. In terms of highways matters, officers said car parking, design of driveways and garages were all matters that could be secured by condition and the County Council had not raised any objection to the proposal.
  18. In terms of ecology, officers said alterations to the layout and hedge were necessary to provide a single planning application that combined the three previous outline approvals.
  19. Members had raised a concern regarding a ditch and so officers explained the submitted drainage scheme would ensure storm water would be pumped to a sewer outfall.
  20. Ms X addressed the committee again. She said 80% of the proposed houses within the development should be 2-3 bedroom houses and bungalows rather than 4-5 bedroom houses. She said the local plan required 47% of the proposed houses to be affordable housing. Ms X said the houses were not suitable for disabled people and parking was not up to standards. She said the proposal was deficient in terms of landscaping, design, appearance, layout, density, impact on the countryside, overshadowing; and loss of outlook.
  21. Ms X said the applicant did not commit to a child play area; the submitted plans were not accurate regarding the hedge and there were extensive gaps in the remaining hedge. Ms X said the application did not adhere to the neighbourhood or local plan.
  22. Ms X was questioned by the committee as well as Assistant Director for Strategic Planning and Regulatory Services.
  23. The committee asked questions of planning officers. A council proposed refusal of the application but the motion was not seconded. A motion to grant permission led to a split vote. The committee chair had the casting vote and decided to grant planning permission.

Findings

The adequacy of the members’ register of interest as operated by the Council & the effectiveness of declarations of interest for public and council transparency

  1. These are matters for the Council’s monitoring officer to address. It is not for the Ombudsman to consider a complaint about the adequacy of the members’ register of interest. Rather, the Ombudsman’s role is to consider the way the Council considered the complaint. This would involve considering whether the monitoring officer investigated the complaint in accordance with the Council’s policy.
  2. If a complaint is made to the monitoring officer and then referred to the Ombudsman in future we will consider whether a complaint is time barred depending on when Ms X was aware of the matter she complains about.

The robustness of officer advice – notably legal and professional advice

  1. Ms X says the Council’s solicitor advised the committee that there was no basis for refusal and consistently stated the outline approval for development had been granted. Ms X says the solicitor was oblivious to the fact that this was not in dispute but that ‘what was put on the development’, as one councillor put it, was the key question. Ms X says the solicitor’s advice was erroneous as there are plentiful reasons within the local and neighbourhood plans to deny the application.
  2. Ms X says a councillor stated he had gone to the meeting expecting to vote against the application but felt he had no alternative than to vote to approve the application on hearing the solicitor’s advice. Ms X says councillors attempted to challenge issues but were batted away by officers with inadequate and incorrect responses.
  3. Ms X says a senior planning officer told the June 2019 meeting that he was interested in why there was a fuss from local people and so had visited the site. He then said the proposal would be no different to other developments built in the village in the past and he could not see a problem. Ms X says he misled councillors as the developments he referred to are of a lower density and are bungalows.
  4. Ms X says the same officer told the committee that if the issue was about the height of the proposed houses then what was 1.8 metres and held out his hand to demonstrate what he considered 1.8 metres was. The officer repeatedly spoke in the meeting as though he was an elected member. The officer said ‘we have ways in making that go away and it not being an issue’ in response to concerns about the public footpath and the intent of residents to bring forward an objection.
  5. It is for legal and planning officers to advise the committee as they see fit. I recognise Ms X does not agree with their advice and the way in which they advised the committee. But that disagreement does not mean there was fault by officers.
  6. The solicitor’s role at the meeting is to ensure the committee makes a legally defensible decision. The solicitor was concerned about the reasons being stated for refusal of the application by members during their discussion. It is not fault because the solicitor expressed the view that those reasons were not defensible.
  7. Planning officers similarly express their opinions on a planning application both in the committee report and orally before the committee. There is no statutory stipulation setting out the way in which they should do so. While Ms X disagrees with the officer’s comments and his interventions at the meeting, I cannot conclude there is fault by the Council.
  8. As to the officer’s alleged comment that ‘we have ways in making that go away and it not being an issue’ I cannot conclude there is fault based on a second-hand report. That is hearsay.

The adequacy of the Council’s adherence with legal requirements for consultation on planning proposals

  1. The Council publicised the application through a combination of a site notice and neighbour notification. I do not find fault with its publicity arrangements.
  2. When the Council received amendments to the application, it did not initially publicise the changes but later did so through the urgings of Ms X and others.
  3. Where an application is amended it is up to the local planning authority to decide whether further publicity and consultation is necessary in the interests of fairness.
  4. I do not find fault because the Council initially decided not to publicise the amended application. In any event, it did publicise the amended application and so I do not find Ms X suffered an injustice that now warrants further consideration of this matter by the Ombudsman.

The adequacy of the Council’s enforcement of planning conditions

  1. Ms X says the developer departed from the conditions of the planning permission. This was acknowledged by enforcement officers but nothing was done.
  2. Ms X contacted the Council in August 2019 to say a hedge was being removed and destroyed.
  3. The Assistant Director for Planning and Regulatory Services sent a reply to Ms X. He said he had looked into the background of the issue and visited the area. He said an Ash tree had been removed because it was in dangerous condition. The officer did not believe there was a hedge at that part of the boundary. The officer said the area was part of the application site for the 2018 application involving three houses rather than the 2018 application for 36 houses.
  4. Ms X sent a reply to the officer in which she iterated there was a hedge and it had been destroyed. Ms X said she had walked on the footpath close to the site and it was now dangerous.
  5. The officer, in turn, iterated the hedge featured in the debate surrounding the 2018 application for 36 houses but said it was not part of that site. With regard to the 2018 application for three houses, the officer said there was provision for the hedge and a two metre wildlife buffer to be fenced off from an adjoining domestic garden. The officer said the developer had removed the hedge without seeking the agreement of the Council. The officer said the developer had agreed to replace the removed hedge.
  6. There was further correspondence between the officer and Ms X which raised other enforcement matters.
  7. I do not find fault with the way the Council dealt with Ms X on the enforcement matters she raised. I note Ms X says the officer denied a hedge had been removed but that is Ms X’s interpretation of the officer’s response. The officer was making a distinction between the hedges in the two 2018 planning applications. When it was clear to the officer that Ms X referred to removal of a hedge on the site of the 2018 application involving three houses, the officer correctly referred to enforcement action the Council took to secure a replacement hedge.

The adherence of the Council with its adopted local plan and relevant neighbourhood plan policies

  1. All decisions must be made in accordance with the local plan unless material considerations indicate otherwise. It is for the decisionmaker to decide the weight to be given to any material consideration in determining a planning application.
  2. The Council set out the national and local plan policies that applied to the 2018 application involving 36 houses in the committee report. Ms X also said the application did not accord with the local plan in her presentation to the committee.
  3. I am satisfied the decisionmakers were aware of the local plan policies. It was for the committee to determine the application having weighed up the recommendation of planning officers and the views of third parties like Ms X. I do not find the Council failed to adhere to its local plan because the committee decided to approve the application.

The responsiveness of the Council to concerns and petitions raised by local people

  1. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
  2. I recognise Ms X is disappointed with her experience with planning officers but I cannot conclude there was fault by the Council as a consequence. Local planning authorities are supposed to take account of the views raised by third parties when determining a planning application. I am satisfied Ms X and others had the opportunity to comment on the application and their views were considered by the planning committee.

The professional behaviour of officers in respect of the planning application and subsequent iterations

  1. This point replicates the previous points regarding the responsiveness of the Council to the concerns and petitions raised by local people and the robustness of officer advice – notably legal and professional advice.
  2. I can only repeat my earlier remarks that it was for officers to advise the planning committee as they considered necessary. Such advice can only be subjective and displeasing to an observer who does not share officers’ views.
  3. I do not find the behaviour of officers amounted to fault.

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Final decision

  1. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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