Summary: The Ombudsman found fault by the Council on Ms F’s complaint of it failing to notify her of a neighbour’s planning application. A newspaper 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 also failed to show it considered the need to restrict potential commercialisation of the facilities. I found no fault in the way it dealt with her complaint. The agreed action remedies any outstanding injustice.

The complaint

1. Ms F complains the Council failed to:
1. notify her and other residents by letter of a planning application on 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 her correspondence about these failures.
2. As a result, she 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 Ms 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 Ms F and the Council. I considered their responses.

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What I found

6. Ms F owns a property which she rents to tenants. It is close, but not adjoining, to her neighbour’s field which he wished to develop (the site). Running alongside both is a bridleway. As this passes Ms 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. Ms F complains she, and other residents, were not told about the neighbour’s planning application for the construction of private recreational facilities on the greenbelt site.
8. Ms F says there was no site notice displayed near the site residents or her tenants were likely to see. This meant she lost the chance to make representations before the Council granted consent. She argues the Council failed to identify errors on the application and is unhappy with its responses when she raised concerns.
9. The Council said Ms F was not entitled to a notification letter as her property did not adjoin the site. It did send a letter but, the address was incomplete. It failed to include the number of the property but gave its correct name. It expressed surprise the letter was not delivered to her or a neighbour whose property shared the same address except for the number.
10. The Council erected a notice near the site and sent notification letters to nearby residents. The Council, in its response to Ms 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.
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 for consistency in the Manchester Evening News which it said had 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 local newspapers, I consider the Council fettered its discretion by only using the Manchester Evening News.
4. I am not satisfied it caused Ms F an injustice in these circumstances, as there is no guarantee she 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 Ms F’s property does not adjoin the site, the Council had no obligation to send her a notification letter. It is unclear from the neighbour notification list whether the Council intended to send her or her tenants a letter. This is because the address on the letter was incomplete. It missed her number off but, a neighbour who was entitled to notification shares a similar named address, the only difference between the two being the number of the property. On balance, I am not satisfied the Council intended to send Ms F a letter. I found no fault on this complaint.
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 met. 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 meet.
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 Ms F an injustice. She lost the opportunity to make representations to the Council on the application. She 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 her confidence in the Council to deal with the application process properly.

Complaint c): inaccurate/misleading information

Analysis

Information on the application:

16. Ms 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.

• 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 give.
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 says 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 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 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 impact on greenbelt:

19. Ms F was unhappy the Council granted consent for a development within the green belt.
20. In response, the Council said the planning officer’s report addressed the impact on the openness of the green belt. It concluded the proposal was appropriate use in the green belt and the works to land levels would have only limited impact on its openness. It was satisfied the report also properly considered the potential impact of the proposal on the amenities of residents and concerns about access.
21. 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 Ms 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 highways safety and amenity.
4. The planning report noted representations from the parish council which included its impact on the openness of the green belt. The report referred to the National Planning Policy Framework (paragraph 145) which states construction of new buildings in the green belt is inappropriate with several exceptions. These include outdoor recreation if they preserve the openness of the green belt and do not conflict with the purposes of including land within it. The report noted the recreational purpose of the proposal. It considered land level changes minor which would not impact on the nature of the openness of the green belt. A separate section in the report considered the impact on the green belt. It noted the development would be seen from long range views but concluded the design was a modest addition to the landscape, typical of other existing buildings.
5. I am satisfied the officer, after properly considering the potential impact of the development proposed, was entitled to form a view it would have a neutral impact on the green belt, and would not be out of character with the area. In the absence of fault, the Ombudsman cannot challenge a properly taken decision.
6. On balance, I am also 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:

22. Concern was raised about the Council’s failure to consider, and restrict, the future commercial use of this facility. The concern is the neighbour could use it as a business which would impact on the amenities of residents. The question was raised about whether the Council should have imposed a condition preventing the neighbour from expanding its private use to a future commercial use.
23. 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.
24. 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.
25. The Council argued a commercial use would need separate planning consent.
26. I make the following findings on this complaint:
1. While the Council says it considered the size of the works 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 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 commercial future use of the site. 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 non-commercial, this was not considered. It was too small scale to be used commercially.
27. I consider the identified fault did not cause Ms F a significant injustice. This is because it is speculation whether the neighbour will develop the facilities commercially as feared.

Complaint d): complaint/responses

28. At the end of October 2019, Ms F wrote to the Council about her concerns with the way it dealt with the planning application. The Council responded on 19 November explaining if she remained unhappy, she could complain to us.

Analysis

29. 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.

30. I found no fault on this complaint. The Council replied promptly to her complaint within 15 working days of receiving it. I consider this is a reasonable time frame within to respond.

Agreed action

31. I considered our guidance on remedies.
32. I also considered the Council confirming its GIS system contained inaccuracies as it did not accurately reflect the addresses, which it would investigate to ensure the failings are not repeated. The Council also gave instructions to officers to ensure photographic evidence of the site notice in its location is placed on file.
33. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
1. Send Ms F a written apology for failing to: 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.
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 Ms F £100 for the distress the fault caused (uncertainty, lost opportunity, frustration, and inconvenience)

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Final decision

34. The Ombudsman found fault on Ms 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