Summary: Mr and Mrs F complain the Council failed to properly determine an application for prior approval of a change of use of buildings next to their home. They say as a result they will suffer increased noise and traffic, have been caused stress and have wasted money objecting to the application. The Council has accepted there was fault in processing the application and has already apologised. This is a sufficient remedy.

The complaint

1. Mr and Mrs F complain through their professional representative, Mr J, that the Council failed to properly determine an application for prior approval of a change of use of buildings next to their home. In particular they complain the Council delayed issuing notification letters. As a result, their objections were due in four days after the statutory deadline for the Council to determine the application. This meant the approval was granted by default without conditions to protect their amenity.
2. Mr and Mrs F say the change of use will increase traffic and noise outside their home. They also say the Council’s error has caused them stress and to waste money on representations objecting to the application.

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The Ombudsman’s role and powers

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. 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)
5. 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

6. I spoke to Mr J about the complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Town and Country Planning Act 1990
• The Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Order”)
7. Mr and Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Permitted development

8. Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority. The Order sets out the classes of development for which permission has been granted. This includes change of use of agricultural buildings to flexible commercial use.
9. For some types of permitted development rights applicants must obtain ‘prior approval’ from the council to authorise certain elements of the work before carrying out the development. For change of use of agricultural buildings to flexible commercial use the developer must apply for prior approval of transport and highways matters, noise impact, contamination and flooding risks.

Consultees

10. Where the application relates to prior approval as to transport and highways, the authority must consult the local highway authority.
11. The local planning authority must give notice of the proposed development to any adjoining owner or occupier for not less than 21 days.
12. The council must take into account any representations made by consultees when it determines the application. It may grant prior approval unconditionally or subject to conditions.

Deadline for determining the application

13. The Order says the authority must decide the application within eight weeks beginning with the day immediately following that on which the application is received.
14. In 2019 the High Court ruled that the proposed development could begin, without being subject to conditions, following the expiry of the 56 days if no decision had been made by the authority. (Warren Farm (Wokingham) Ltd, R (On the Application of) v Wokingham Borough Council [2019] EWHC 2007 (Admin) (31 July 2019))

What happened

15. Mr and Mrs F’s neighbour submitted an application for prior approval for the change of use of agricultural units to flexible commercial use. The Council accepts it received the application on 19 June 2019. This meant the application had to be determined by 13 August 2019.
16. The Council validated and acknowledged the application on 15 July and sent consultations to the local highway authority. It sent consultation notices to adjoining residents, including Mr and Mrs F, on 25 July, giving three weeks to comment, i.e. until 17 August. The Council accepts this was an error as this was four days after the 56-day statutory determination period was due to expire.
17. The Highway Authority recommended refusal as there was insufficient detail in the application and no full assessment of impacts on the highway had been provided. It considered the development was likely to result in a material increase or change in the traffic in the vicinity of the site.
18. The Council sent these comments to the applicant on 8 August. The case officer also asked the applicant to agree to extend the determination period to 21 August. The Council has accepted this was an error, as case law says a decision must be made within the statutory determination period and this cannot be extended.
19. Mr and Mrs F appointed Mr J to make representations on the application. Mr J submitted the following objections on behalf of Mr and Mrs F on 15 August:
• It was questionable whether the agricultural structures could be categorised as 'buildings' for the purposes of conversion to Class B8 use
• There was no professional transportation and highways assessment in the application, and a lack of information about how traffic speed had been assessed. In addition, the number of accidents recorded near the site was wrong.
• It had not been proven that the change of use would not result in severe impacts on the road network and Mr J disputed that the change in vehicle movements would be negligible. The applicants had constructed two further agricultural store buildings so the number of vehicle movements was likely to double.
• The speed of traffic combined with severely restricted visibility represented a clear highway danger.
• The applicant’s proposed internal one-way system would be dependent upon the applicant’s good will, which was an insufficient protection.
• There had been no noise assessment report. Conversion of the units would generate additional noise and they were extremely close to Mr and Mrs F’s home, separated only by a low brick wall.
• There were contamination risks on the site due to probable asbestos being present.
20. The applicant responded to the Highway Authority's concerns on 20 August. This said the applicant would agree to conditions in relation to the one-way system, working hours, and HGVs. It was expected there would be four additional vehicle movements per day.
21. The next day the officer recommended prior approval be granted without conditions. The officer’s report noted that unconditional prior approval must be given as the statutory determination period had passed. Nonetheless the report set out the case officer’s considerations. It noted that the Highways Authority had given no regard to the fact that the traffic movements would be replacing existing agricultural vehicle movements of a similar nature and frequency. The report said parking was sufficient and it would be possible for vehicles to exit the site without reversing. It concluded therefore there would be no significant impact on transport and highways. The report said there would be no building work on the units so there was no contamination risk. The structures were deemed to be buildings as they had roofs and were enclosed on at least two sides. The noise impact would not be significant given the existing use and the small size of the units.

Mr and Mrs F’s complaint

22. Mr and Mrs F complained through Mr J on 29 September 2019 that the default decision meant the Council could not apply any conditions to the permission, such as hours of work, to protect their amenity. In addition, the Council had been unable to consult the Highway Authority on the applicant’s further information.
23. As a result, they said they had wasted money on appointing a professional consultant to make representations objecting to the application, had been caused stress and upset, and would suffer from a potential increase in traffic and noise from the new planning use. They asked for the development not to proceed and for compensation for the costs of the objections and the stress, anxiety and inconvenience suffered.
24. The Council’s response to the complaint accepted it had not consulted adjoining landowners until 25 July and had therefore set an incorrect deadline for representations. The Council did not however consider this fault in the processing of the application had had any bearing on the outcome of the application.
25. Mr and Mrs F remained dissatisfied and asked for their complaint to be escalated to the next stage. The Council asked the Highway Authority whether the additional information from the applicant would have changed its recommendation. The Highway Authority said its view would not have changed. Whilst the new information addressed some issues, the highways officer remained concerned about visibility, how the number of trips and type of traffic was calculated, and a lack of a Road Safety Audit. She said as a minimum she would expect a sign warning of slow turning vehicles.
26. However, the Council considered the proposed use would not have a significantly greater intensity in terms of traffic movements than the existing use of the premises. The Council’s final complaint response of 25 November 2019 therefore accepted there had been some fault, for which it apologised, but it considered the outcome of the application would have been the same. It therefore did not consider there was any case for compensation.
27. Mr and Mrs F complained to the Ombudsman through Mr J in January 2020. The length of our investigation was affected by the coronavirus pandemic.

My findings

28. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. My role is to determine whether there has been administrative fault in the way the decision was made.
29. The Council has already accepted there was fault in the way the application was considered. It set a deadline for representations that was beyond the statutory deadline for determination. This meant it was not able to fully consult the local highway authority on the proposals. It also meant that whilst it received Mr and Mrs F’s objections, it was unable to use them to consider whether the application should be refused or whether any conditions should be set, as the development had to be allowed without conditions. That is their injustice.
30. The Council says it would have nonetheless approved the application without conditions.
31. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. When the case officer wrote his report, he had Mr and Mrs F’s objections, was aware that the highways authority had recommended refusal and had the applicant’s further information. His report explains why in his view the change of use would not have a severe impact on the highway or on noise. I realise he was unable to set conditions or refuse the application, but on the balance of probabilities I do not consider the planning outcome would have been any different if there had been no fault and the objections had been able to be considered. I therefore find that no significant injustice was caused to Mr and Mrs F.
32. Mr and Mrs F say they wasted money appointing Mr J, as their representations could never be taken into account due to the Council’s fault. I understand their frustration.
33. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. In this case, I do not consider that the cost of appointing Mr J was caused by the fault. At the time they appointed Mr J, Mr and Mrs F were unaware there had been any fault and I therefore consider they would have appointed him anyway. I therefore do not find that the fault has caused the injustice claimed. The Council has already apologised and I am satisfied this is a sufficient and proportionate remedy.

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Final decision

34. There was fault causing injustice. I am satisfied the Council’s apology has remedied that injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman