Summary: The Ombudsman found fault by the Council on Mr F’s complaint of it failing to notify him of a neighbour’s planning application. It sent an incorrectly addressed letter, the press notice gave no deadline for submissions, the site notice was not erected in a location residents might see it, and it failed to keep a record of its location. It delayed dealing with his formal complaint. It also failed to show it considered the need to restrict any potential commercialisation of the facilities. The agreed action remedies any outstanding injustice.

The complaint

1. Mr F complains the Council failed to:
1. notify him and other residents by letter of a planning application for a nearby site;
2. erect a site notice on or near the application site;
3. correct inaccurate and misleading information in the planning application; and
4. respond promptly to his correspondence about these failures.
2. As a result, he lost the opportunity to make representations and have them considered before the Council gave the application consent.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I considered all the information Mr F sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr F and the Council. I considered their responses.

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What I found

6. Mr F’s property shares a boundary with his neighbour’s land. The neighbour has a nearby field which he wished to develop (the site). Running alongside both is a bridleway. As this passes Mr F’s house, it joins a private lane which goes on to join an adopted road. The road shares the name of the lane and passes to the front of the neighbour’s property.

Complaint a) and b): notification by letter and site notice

7. Mr F complains he, and other residents, were not told about the neighbour’s planning application for the construction of private recreational facilities on the greenbelt site.
8. While the Council notified Mr F of previous applications for the site, he is unhappy it failed to do so for this application. Nor was there a site notice publicising it. This meant he lost the chance to make representations before the Council granted consent. He argues the Council failed to identify errors on the application and he is unhappy with its responses to his complaint.
9. The Council accepted it had not used Mr F’s ‘precise address’ when it sent him a notification letter. The letter did not include the number of his property but, gave its correct name. It expressed surprise the letter was not delivered to him.
10. The Council erected a notice near the site and sent notification letters to nearby residents. This was denied by Mr F who says he and other neighbours walk their dogs along the bridleway daily and saw no notice. The Council, in its response to Mr F’s complaint, confirmed it could not say where it erected the notice. It accepted it likely was not adjacent to the site or on the lane leading to nearby houses.
11. In response to my enquiries, the Council explained the case officer recalled the location of the site notice but, took no photograph at the time showing it in position. All officers are instructed to do this. The location chosen was due to its prominent position on the adjacent highway at the junction with the adopted highway and the public footpath. The Council accepted it was not the most appropriate location.
12. The Council has a Statement of Community Involvement. This sets out how it engages with the community when, for example, deciding planning applications. It will send letters to all adjoining occupiers. It will extend this to other nearby properties when the proposal may have a significant impact on neighbours. The Council maintained it complied with the notification requirements and did not need to consider wider notification as the proposal would not have a ‘significant impact’.
13. The Council issued a press notice in a newspaper but, Mr F notes this was not a local one.
14. It accepted the Geographic Information System (GIS) it uses for identifying properties contained inaccuracies and failed to accurately reflect some of the addresses.

Analysis

15. I make the following findings on this complaint:
1. The law sets out the publicity required for certain types of applications. (Regulation 15, The Town and Country Planning (Development Management Procedure) (England) Order 2015) For this application, the Council carried out the highest level of notification. This is because what was proposed went against its own local development plan. This meant it had to publicise it by a site and press notice.
2. The Council issued a press notice in the Manchester Evening News, for consistency, which it said has a wide circulation in the area. Oldham is a large town in Greater Manchester which is about 6 miles away. The Council noted the newspaper reports on the Council’s planning committee.
3. The Council’s Statement of Community Involvement states, ‘Local press advertisements are undertaken’. While I appreciate why the Council chose to use the Manchester Evening News, Oldham does have 2 local newspapers, The Oldham Chronicle and The Oldham Times. The Council confirmed it did not make individual choices about publications to use on a case by case basis. By not considering in individual cases whether it should place notices in the local newspapers, I consider the Council fettered its discretion by only using the Manchester Evening News.
4. I am not satisfied it caused Mr F an injustice in these circumstances, as there is no guarantee he would have bought the local newspapers or seen the notices,
5. While the press notice explained the application could be viewed on its website for those wishing to make representations, it failed to give the timescale for doing so. This breached its own guidance in the Statement of Community Involvement which states press notices, ‘normally request that any representations are made within 14 days of their publication’. (section 8.18) This was fault.
6. As someone whose property adjoined the site, the Council sent Mr F a notification letter. It failed to properly set out his address as it did not include the number of his property. This was fault.
7. The Council erected a site notice. The law requires a site notice to, ‘be displayed in at least one place on or near the land to which the application relates for not less than 21 days’. (Regulation 15, The Town and Country Planning (Development Management Procedure) (England) Order 2015) Under its own Statement of Community Involvement, a site notice is posted, ‘on, or near to, the application site where it is considered necessary to do so and appropriate publicity cannot be achieved through direct neighbour notification letters’. (section 8.16) It gives an example where the proposal would have wider reaching implications for the area.
8. I consider it fault for the Council to place the only site notice to the front of the applicant’s property. This is because residents most likely affected by the proposal were unlikely to walk down the adopted road past the applicant’s property. They were more likely to see the notice had the Council erected it at the junction where the unadopted lane and the adopted road meet. This was because residents living along the unadopted lane were more likely to see it when they drove, or walked, to and from their property. This was the only access/exit to the adopted road. The Council should have considered erecting the site notice, or a second site notice, at this location. It could also have considered whether it needed to erect one where the unadopted lane and bridleway met.
9. The Council also failed to make, and retain, a record of the site notice in place. This is fault.
10. I am satisfied these failures caused Mr F an injustice. He lost the opportunity to make representations to the Council on the application. He now has the uncertainty of not knowing whether the outcome of the application would have differed had the Council considered them. It caused frustration and damaged his confidence in the Council to deal with the application process properly.

Complaint c): inaccurate/misleading information

Analysis

Information on the application:

16. Mr F complains:

• information on the application form was misleading and inaccurate. For example, it gave no address only a postcode which did not match the site location. In addition, the neighbour gave the wrong grid reference;

The Council confirmed there were inaccuracies in the application, including the grid reference. When the application is completed online, the grid reference is automatically generated when the address and postcode are added. While the address was correct, the postcode was wrong. It explained when validating an application, officers use the red edged site plan to identify the site’s location and neighbouring properties. It does not do this by using the postcode; and

• the description of the site on the application gave the impression it was accessible from a main highway rather than a bridleway.

17. The Council noted the disagreement about whether the site is off the lane referred to in the application. The application says the land is off the lane which is the nearest named highway providing access to the site. The Council says it is unclear what other description the applicant could have given.
18. I make the following findings on this complaint:
1. The application form does not contain a site address but shows a postcode.
2. I read the planning statement sent with the application. This describes the site and referred to access from a track parallel to a lane. The site has a detached agricultural building with concrete area which is all fenced off. The statement states access will continue from the lane, an unclassified road. What the statement failed to make clear was access to the site would be from the unadopted road and then along the bridleway. While the statement could have been clearer on this point, I note the Council had not drafted it. I am satisfied officers had sufficient information and awareness about the site to understand the access to the site.
3. The planning officer’s report describes the location of the site as land off the named lane within the greenbelt. It goes on to explain it is off a bridleway tract which eventually merges with the land to the north.
4. I am satisfied the Council was aware of the exact location of the site from information on the application form and submitted plans. I found no fault on this complaint.

Consideration of access:

19. Mr F complained the Council failed to properly assess access to and from the site. The only access to the site is from a bridleway used by walkers and cyclists. He argued creating this facility will increase the amount of traffic on the bridleway.
20. In response to my enquiries, the Council explained the highways officer raised no objections when consulted. It also explained the applicant owns the land just off the bridleway. The site has an existing barn, which it agreed could be converted to a residence, and the bridleway track historically was access to it for the landowner. The Council also noted it is a criminal offence to drive a mechanically propelled vehicle on a footpath, bridleway, or restricted byway without lawful authority. This is unless they have the consent of the landowner. Even if consent is given, such use cannot cause a public nuisance to other highway users, including walkers, cyclists, and horse riders.
21. The Council argued the owner may well already have legitimate rights of vehicular access to the site. Any potential conflict with horse riders and pedestrians on the bridleway, for example, often occurs in the countryside anyway and there is clear visibility along it to ensure safe passage. This would not be a material planning ground to refuse the application. The planning officer recognised the limited impact of the development on highway safety and resident amenities. It did not consider imposing conditions to limit traffic because the National Planning Policy Framework and guidance make it clear conditions need keeping to a minimum and only where they meet certain tests. In the judgement of officers, they were not needed.
22. I make the following findings on this complaint:
1. The planning officer’s report noted the highway engineer had no objection to the proposal.
2. I have seen the highway’s response. It noted existing public rights of way (a bridleway and a footpath) passing near the site. It referred to statutory obligations to ensure the applicant maintains free passage of the public along them.
3. The access of vehicles to the site was a material consideration and one for the highways team to have highlighted in its consultation response.
4. I note the plans showed access from the public highway edged in red as required by the national verification and its own local verification checklist.
5. I also considered the Council’s response to my enquiries that the track historically would have provided access for the landowner. It found no evidence that legitimate rights of vehicular access to the site do not already exist for the landowner and authorised visitors.
6. On balance, therefore, I found no evidence of fault on this complaint. This is because I am satisfied the Council considered the issue of access.

Consideration of amenities:

23. I also considered his complaint of the Council failing to properly assess the potential impact of the proposal on the amenities of residents. Mr F’s concerns included the only access to the site is from a bridleway which will increase the amount of traffic on the bridleway.
24. I make the following findings on this complaint:
1. The planning officer’s report referred to planning policy 20 (residential amenity and design) of its Joint Development Plan Document. The report went on to consider the application’s visual impact, land level works, and concluded it was not an intrusive feature in the landscape.
2. The report considered the layout of the surrounding land, and the separation distance of 30 metres between it and the nearest future dwelling, which had previously received planning consent. Other dwellings, including Mr F’s, were further away than this from the site and would not be affected.
3. The highways engineer had no objections to it because it would only have a limited impact on highway safety and amenity.
4. I saw nothing on the application or plans showing floodlights on the facilities.
5. On balance, I am satisfied the Council properly considered the impact of the development on the amenities of residents. I found no fault on this complaint.

Future commercialisation of site:

25. Mr F was concerned with the Council’s failure to consider, and restrict, the future commercial use of this facility. He is worried the neighbour could use it as a business which would impact on the amenities of residents. He considers the Council should have imposed a condition preventing the neighbouring from expanding its private use to a future commercial use.
26. The Council explained the supporting information from the applicant showed the facility was for private use only. There was nothing to show use for commercial purposes considering the limited scale of the facility. Officers considered the proposed size and decided its minimum size was suitable for private use only. The Council provided weblinks to companies which confirmed the size proposed was adequate for most domestic needs only.
27. The Council did not consider the tests for applying a condition, such as necessity, relevance to planning and the development permitted, enforceability, precision, and reasonableness, were met.
28. The Council maintained a commercial use would need separate planning consent.
29. I make the following findings on this complaint:
1. While the Council says it considered the size, and decided it was suitable for private use only, I saw no evidence this was considered at the time. This is fault.
2. There is no evidence the Council considered and explored whether there was a need to apply a condition about future commercial use of the site. This is fault.
3. There is nothing to show the Council considered the possible risk of the neighbour arguing in the future that changing the use of the facilities to a more commercial use did not need a planning application at all because it was fell within the same class of use for which they had consent. This is fault.
4. The highways officer confirmed her advice would have differed if she had been asked to comment on the potential for the site to be used commercially. This is because she would have looked at the facilities on site for parking and turning of larger vehicles, for example. As the application she was asked to assess was not for commercial, this was not considered. It was too small scale to be used commercially.
30. I consider the identified fault did not cause Mr F a significant injustice. This is because it is speculation whether the neighbour will develop the facilities commercially as feared.

Complaint d): complaint/responses

31. In August 2019, Mr F wrote to the Council complaining about its handling of the planning application. He complained about notification and errors on the application.
32. The following month he chased the Council for a response. The Council responded saying it had passed it to a team leader.
33. In October, he wrote to the Council again having heard nothing further. The following day the Council replied apologising for the delay and responding to his complaint. It ended by saying he could contact the complaints team if he remained dissatisfied. Mr F replied the same day, confirming his disappointment with its response. The Council emailed back saying it was investigating the publicity used for the application as there appeared to be some deficiencies with the addressing of notification letters. Mr F then raised the issue of access to the site from a bridleway.
34. The Council apologised later the same month accepting failures with publicity.
35. In November, the Council sent him a further complaint response. This explained the planning team had struggled to cope with workloads in recent months because of staff leaving and recruitment problems. It now had full staffing levels working on the backlog of applications and other correspondence. It apologised for the level of service he received.

Analysis

36. The Council’s complaints procedure states:

• A complainant will receive an acknowledgement within 5 days;
• Where the complaint is straightforward, it aims to send a response as soon as possible, which may mean the same day for some cases;
• If the complaint is more complex, the complainant may be asked to agree a statement of complaint which helps the complaint investigator ensure it is fully agreed;
• The complaints team will then arrange for an investigation; and
• When the Council sends its final response, the complainant can complain to us.

37. I found fault on this complaint. Mr F waited 2 months for a response to his complaint. During this time, he had to chase the Council for a response after a month had passed.
38. I am satisfied this failure caused him some distress (frustration and inconvenience, for example).

Agreed action

39. I considered our guidance on remedies.
40. I also considered the Council telling Mr F its GIS system contained inaccuracies as it did not accurately reflect addresses, and it would investigate this to ensure the failings are not repeated. The Council also gave instruction to officers to ensure photographic evidence of the site notice in its location is placed on file.
41. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Mr F a written apology for failing to: use his precise address; have evidence of the exact location of the site notice; have an accurate GIS system; consider whether it needed to use a notice in a local newspaper; ensure the press notice contained a date for the submission of comments; show it considered the facilities size and the need for a condition restricting future business development of the site; follow the complaints procedure properly.
2. Review the need to give officers guidance about the use of discretion for placing press notices in newspapers other than the Greater Manchester News.
3. Review the need to show evidence of what officers considered when reaching the view a condition restricting future business use was not needed.
4. Pay Mr F £150 for the distress the fault caused (uncertainty, lost opportunity, frustration, and inconvenience)

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Final decision

42. The Ombudsman found fault on Mr F’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman