Summary: The Ombudsman found no fault on Mr J’s complaint against the Council about the way it considered a planning application for a housing development on land to the rear of his home. I am satisfied the Council properly assessed this application before granting consent.

The complaint

1. Mr J complains the Council failed to properly consider a planning application for a large housing development on land to the rear of his home; as a result, he suffered a great deal of stress and anxiety dealing with the Council about it and considers his amenities will be affected by the development.

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The Ombudsman’s role and powers

2. 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)
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)

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Council’s Core Strategy

4. The Core Strategy is part of the Council’s local development frameworks. These are a series of documents which replaced its previous local plan.
5. Policy S14: This states applications for new development in open countryside will only be allowed where it is likely to be sustainable under policy S3 and it is essential to support farming and other countryside based enterprise and activity, promotes recreation, and supports the retention of sustainable communities or, supports the conservation and enhancement of the countryside. An applicant must show they have done the sequential test in policy S2, that no other site is available, and where it involves the loss of the best and most versatile agricultural land, the loss is unavoidable.
6. Policy S2: This lists the locations for new development that should be selected from 1 (previously developed land and buildings within certain urban areas) to 4 (other suitable sites adjoining sustainable village centres).
7. Policy S3: Before allocating sites or granting consent for new development, the Council needs to satisfy itself that the sustainability criteria are met. It sets out 6 criterion.
8. Policy S1: This provides the location and scale of new development should follow a settlement hierarchy and reflect the services present, accessibility, and character of each settlement. It names locations which fall in to each of the following hierarchies; the main rural service centres; secondary rural service centre; sustainable village centres; local needs centres; the countryside where development is generally limited to the reuse of existing buildings and includes everywhere outside of a town or village listed in the other hierarchies. The aim is to avoid unnecessary loss of greenfield land.

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Draft Local Plan

9. This is the Council’s new single local plan which guides planning until 2036 but, it is still going through the approval process. It will replace all district and county council local plans and Core Strategy documents.
10. Policy STP 1: This refers to delivering sustainable development which enhances the vitality of communities, supports economic growth, and conserves and enhances the environmental assets.
11. Open Countryside: This is defined as land beyond settlement boundaries, where they are specified on the policies map, and land not within, or immediately adjacent to, the built-up form of settlements where limits are not specified.

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How I considered this complaint

12. I considered all the information Mr J sent, the notes I made of our telephone conversation, details about the planning application available on the Council’s website, and the Council’s response to my enquiries, a copy of which I sent him. I sent Mr J and the Council a copy of my draft decision. I considered Mr J’s response.

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What I found

13. To the rear of Mr J’s home is an area of open land. The Council notified him of a planning application it received to build a large housing development on the site. He sent representations about the scheme to the Council. These included concerns about: the impact on amenities; loss of view; housing density; devaluation; traffic/pollution; drainage; lack of services; and lack of local employment. He also expressed disappointment with the applicant’s community consultation for the application as views expressed were, he felt, ignored.
14. The planning committee granted consent. Mr J is unhappy with the decision and the way it was reached. I now consider his individual complaints:

Presumption of development:

15. Mr J is unhappy with the planning officer’s report referring to a presumption in favour of sustainable development.
16. In response to his complaint, the Council explained this presumption exists under the National Planning Policy Framework (NPPF) (paragraph 10). This means approving development proposals that meet with an updated development plan. Where there is no plan, or it is out of date, consent is given unless, there are clear reasons for refusing it or, any adverse impact would significantly and demonstrably outweigh benefits when assessed against the NPPF.
17. The Council noted the planning officer’s report considered this and listed relevant local and national development plans and emerging planning policy. These are referred to through the report.

Analysis

18. Planning applications must be decided in line with a council’s Local Development Plan, unless there are good reasons not to do so. It includes the Local Development Framework for that area and any ‘saved policies’ from its own Local Plan. The Alnwick District Local Plan (1997) and the Alnwick District Core Strategy (2007) form part of the adopted Local Development Framework for the former Alnwick District. The Council also has an emerging Northumberland Local Plan (the NLP) which is at the public examination stage.
19. The NPPF states for decision-making, the presumption in favour of sustainable development (paragraph 10) means:

• Approving schemes that accord with an up to date development plan without delay;
• Where there are no relevant development plan policies, or the ones most important for deciding the application are out of date, consent should be granted with 2 exceptions. These include where the NPPF policies protecting areas or assets of particular importance provide a clear reason for refusing the scheme or, the adverse impacts of granting it would significantly and demonstrably outweigh the benefits when assessed against the NPPF policies. (paragraph 11).

20. The NPPF also states a council can give weight to policies in the emerging plans, depending on the preparation stage, how it aligns with the NPPF, and unresolved objections. (paragraph 48)
21. The agent’s statement of community involvement noted the site was chosen for residential development under the local plan but, this policy (H3) was not saved and included in the adopted development plan. It argued policies in the local plan were out of date and carried little weight.
22. The planning report considered the principle of development and noted the village is a Sustainable Village Centre (S1 Core Strategy) and a Service Village (STP1 of the NLP). While the report considered the scheme came within the 4th category of the Core Strategy (Policy S2), the officer gave it little weight. Instead, the report noted STP3 and HOU2 of the emerging NLP reflected the NPPF.
23. The report also considered Policy S3 of the Core Strategy which states the site should be accessible to homes, jobs, services, the transport network, and travel other than by car, for example. It noted jobs locally were limited but, also noted it was close to other towns. The size of the development was towards the ‘upper end’ of what might be acceptable under its policies.
24. I make the following findings on this complaint:
1. The NPPF gives a presumption in favour of development. This, therefore, was the correct starting point for the Council to take on this application;
2. Under the NPPF, the Council had to consider what weight to give the emerging NLP as its development plan was out of date, but in the process of being updated;
3. The Council also had to consider whether the scheme came within either of the 2 exceptions for the presumption in favour of development. It had to consider whether policies in the NPPF that protect areas provide a clear reason for refusing the development or, the adverse impact of doing so would significantly and demonstrably outweigh the benefits when assessed against the NPPF as a whole;
4. The officer’s report found no reasons in the NPPF for going against the presumption of development. Nor did it identify the development would lead to an adverse impact which would outweigh its benefits; and
5. I am satisfied the Council properly assessed the presumption of granting consent for this development. This was set out in the planning officer’s report which went before the planning committee to consider. I found no fault on this complaint.

Settlement boundary/open countryside:

25. Mr J believes the Council wrongly assessed the site as not being in open countryside and within the settlement boundary of the village. He argued the Council should not have granted consent as it was in open countryside.
26. The planning officer’s report noted the NLP proposed settlement boundaries to better control the location of development. This helps protect the countryside from development and helps maintain the character and form of settlements. The site was not described as open countryside in the Core Strategy.
27. The Council explained to Mr J it did not consider the site open countryside. This meant it did not need to assess it against Policy S14 of the existing plan. Policy S14 states new development in open countryside is only allowed if it meets certain conditions. The Council concluded it was not ‘open’ or part of the countryside because of the level of enclosure and separation. Nor was it likely to impact on the feeling of open countryside on the outskirts of the village.
28. It decided full weight should not be given to Policy STP1 of the emerging NLP because of the NPPF.

Analysis

29. The planning officer’s report described the site as having a boundary with agricultural land on two sides, a processing site on another, and residential development and allotments on another side. It also noted the site is located outside of, but immediately adjacent to, the proposed settlement boundary for the village.
30. In response to my enquiries, the Council confirmed the scheme would:

• Be open countryside under the emerging NLP but, not within the settlement boundary; and
• Not be open countryside under the existing plan nor within the settlement boundary.

31. I found no fault on this complaint. The planning officer’s report noted under the existing plan, the site would not be open countryside and would not be assessed as such. This was due to the level of enclosure and separation provided by the vegetation and strong landscaping buffering around the site. The site is not, therefore, likely to impact on the feeling of open countryside on the outskirts of the village.
32. The officer decided not to give full weight to the NLP (policy STP1) because of paragraph 48 of the NPPF. The allows a council to give weight to policies in the emerging plans, depending on the preparation stage, how it aligns with the NPPF, and unresolved objections.
33. I am satisfied the decision not to class this site as open countryside was a matter of judgement for the officer and the planning committee.

Amenities:

34. Mr J is unhappy with the way the Council considered the scheme’s impact on residents’ amenities. He does not consider the 22-metre separation distance between new and existing properties adequate.
35. The report had a section titled, ‘Impact on neighbour amenity’. This referred to provisions in the NPPF about amenity in terms of achieving well-designed places. The report considered the separation distances between the buildings proposed, and the layout and scale of the scheme, satisfactory.
36. It also referred to policy QOP2 of the NLP which is about good design and amenity. It refers to avoiding development resulting in unacceptable adverse impacts on the amenity of neighbouring uses. Explanatory paragraphs for this policy set out assessments need to be proportionate and considered in context. The report concluded that subject to conditions, the scheme complies with policies in the development plan, the NPPF, and those in the NLP.

Analysis

37. I am satisfied the Council properly considered the impact on amenities when assessing this application. In reaching this conclusion, I note the following:
1. The drawings sent with the application show only the western boundary and a small section of the south-western side having existing residential properties backing on to the site. There were no other residential properties near the site’s boundaries.
2. The report considered the impact on amenities. The plans sent in support of the application show the scale, and therefore size, of the gardens of the new properties whose rears face existing properties.
3. The plans also show the layout of windows facing Mr J’s house. The ones to the rear have a velux window in the roof. There is an upper floor bedroom window and a ground floor smaller kitchen window. At the distances shown, the impact on privacy, overlooking, and light to his house will not be significant.
4. The separation distances Mr J complains about, more than 21 metres according to the drawing his neighbour sent for example, are not unusual separation distances between habitable rooms.
5. The design and access statement referred to ‘generous separation distances’ between existing and proposed dwellings with the rear gardens of existing properties helping with it.

Housing supply need:

38. The Council told Mr J the scheme would add new housing stock to the local market through a mix of affordable and market homes of varying sizes. Mr J argued there was no need for this scheme because, the Council has enough land identified for housing supply for the next 12 years. Under the NPPF, the Council must show each year a supply of sites that could provide 5 years’ worth of housing against its housing requirement. Where the Council cannot show a 5 years supply, there is a presumption in favour of development.
39. The planning officer’s report accepted the Council had a, ‘plentiful five-year housing and land supply’ and went on to state it had a housing land supply of just over 11 years.

Analysis

40. I found no fault on this complaint. The Council had to assess and decide the application received. There was nothing to prevent it granting consent for further housing even though it could show it had a 5-year housing supply.

Lack of services:

41. Mr J complained about the potential impact on local services by a large development of additional housing.
42. The Council explained to Mr J the scheme includes a pub and a school.

Analysis

43. I found no fault on this complaint. In reaching this conclusion, I took the following in to account:
1. The planning officer’s report noted the local health clinical commissioning group suggested a single payment contribution from the developer to allow medical facilities to expand to allow adequate provision for the increase in the local population.
2. The report also suggested a contribution from the developer to cover the expansion of a local school, which was already oversubscribed.
44. I am satisfied the Council considered the impact this development might have on key local services.

Footpath:

45. Mr J is concerned about the way the Council considered a footpath on the site when granting consent.
46. The agent’s Transport Statement referred to a public right of way near the eastern boundary which connects to another one to the south.
47. The Council also explained, in response to Mr J’s complaint, the footpath was in the presentation to the committee and raised by a councillor.

Analysis

48. I found no fault on this complaint. I note the planning officer’s report referred to the Countryside/Rights of Way officer’s response, a copy of which I have seen. This raised no objection to the application on the condition the 2 bridleways are protected.

Affordable housing:

49. Mr J is unhappy with the amount of affordable housing provided by the scheme as he says under policy S6 of the Core Strategy, the target of affordable housing should have been 35% of the total units on site.
50. The Council told him the scheme had a mix of discount market value and rented properties. In response to my enquiries, it said policy S6 did not comply with the NPPF and should not, therefore, be applied. The figure of 17% is based on evidence gathered during the preparation of the NLP.
51. The planning officer’s report noted:

• The scheme is a ‘major development’;
• The scheme includes an off-site affordable housing contribution amounting to 17% of the site;
• This scheme would provide a minimum of 6 affordable homes some of which will be made up as affordable rented properties; and
• While it accepted it did not provide the level of affordable housing set out in the Core Strategy (policy S6), this was satisfactory as it complied with the NPPF requirements.

Analysis

52. I found no fault on this complaint and in reaching this view, took the following into account:
1. The planning report shows the local need for affordable housing was a consideration. It explained the location is an area where the provision of affordable housing needed to be treated with caution. There was not currently a need there for certain tenures. The developer agreed to make the remainder of the affordable housing on site rented properties. It went on to note some requirements for affordable housing under existing policies are old and based on out of date evidence.
2. It considered evidence used for the NLP and referred to the Northumberland Strategic Housing Market Assessment Update in June 2018. This found the need for 17% of new homes to be affordable. The Update gave a detailed market analysis of housing needs within the county and across local housing market areas. It found half of affordable properties should be for rent, and the other half for types of home ownership.
3. The report noted the NLP reflected this new position so there are different affordable housing requirements based on housing viability areas.
4. I am satisfied the Council carefully considered what level of affordable housing was needed for this location taking account of the evidence gathered in preparation of the NLP.

Ecology:

53. Mr J is unhappy with the way the Council dealt with the ecology assessment of the site
54. The agent sent the Council an ecology assessment and habitat report. This involved carrying out a breeding bird survey, surveying plants, and a great crested newt survey, for example. It consulted the ecology officer at the Council before sending the application. The surveys also found 24 species of bird on site during the breeding season but no great crested newts or badgers.
55. The scheme would remove hedgerows to the northern and western boundaries but not the eastern one. It noted any loss of habitat for some of the breeding birds found would be countered by new residential gardens, landscaping areas, and areas of public open space which will increase the possible foraging and nesting resources on site. Disturbance from human occupation was considered low because of the retention of trees and hedgerows.
56. The assessment made suggestions to mitigate the scheme’s impact. This recommended: new hedgerow planting; new planting of trees and shrubs; nest boxes; works to clear the land to be done outside of bird breeding season. The agent also provided a habitats regulations assessment.
57. The Council’s response from its ecology team noted the agent’s updated report did not fully address concerns it raised earlier. This involved concerns about the indirect impact of the development on coastal sites, for example. It was concerned about the surveys having been done 2-3 years earlier; garden landscaping was not enough to mitigate the impact on bird species of ‘principal importance’ under the Natural Environment and Rural Communities Act 2006; the need to keep at least one pond; a lack of enhancement through bat roosts or landscaping; the need to remove some plants was not set out; the lack of information about the impact on bats and the need for dark corridors, for example; lack of details about the presence of early purple orchid on site which is rare.
58. The agent carried out a further updated ecology survey which it sent to the Council. The Council’s ecologist responded by stating while some matters remained unresolved, the Council could deal with these by planning condition. The response noted there was no sign of the rare orchid first reported on site and suggested some conditions, such as when vegetation clearance works could not be done without agreement because of bird nesting.

Analysis

59. The planning officer’s report noted:

• Its ecologist could not find evidence of the rare flower the applicant’s ecologist claimed to have found on the site. The applicant’s ecologist said it appeared to have been lost due to fluctuating water levels of the pond.
• The Council ecologist concluded it was no longer present on site or had been a different type of flower altogether. The ecologist also concluded the proposal would not have a significant ecological impact subject to planning conditions.
• It considered the potential impact on the nearby coastal special protection area.
• Considered the NPPF (paragraph 170) which required the planning system to contribute to and enhance the natural and local environment by minimising impacts.
• Considered policy S3 and S12 of the Core Strategy and ENV1 and ENV2 of the NLP.

60. I am satisfied proper consideration was given to ecological matters. The planning officer consulted the Council’s ecologist before making a recommendation. This information was before the planning committee when it reached its decision. I found no fault on this complaint.

Community engagement:

61. Mr J was unhappy with the developer’s community engagement on the application. The Council told him the applicant held a consultation event as an early informal engagement.
62. The agent’s statement of community involvement said they had sent letters to local councillors to make them aware of the application. In addition, they set up a consultation website with an online questionnaire and sent a detailed information booklet to residents about the proposals. They also posted them out. It received 14 completed hard copy questionnaires but most chose to respond electronically. It also carried out consultation with Parish and Town Councils.

Analysis

63. I found no fault on this complaint. The consultation Mr J complains about was carried out by the developer’s agent, not the Council, which was done pre-application. Mr J was notified of the application and had the opportunity to make representations.
64. The Council’s Statement of Community Involvement (2015) states it will encourage a prospective applicant on any proposal which could be controversial or affect significant numbers of people, to consider the communities concerned first and then submit, with an application, an explanation of how they took the comments in to account. The evidence shows the developer carried out consultation.

Highways:

65. Mr J has concerns about highway safety as the entrance to the site is on a bend with a bus stop nearby. He is also concerned there is an entrance along a lane to the neighbouring processing site used by agricultural vehicles.
66. The agent sent the Council a Transport Statement it carried out.
67. The highways consultation response concluded the development would not have a severe impact on highway safety and as such had no objections to it. Despite securing some alterations about access and internal layout, other minor changes can be secured by condition. Additional plans and minor changes to the Transport Statement have no material impact on previous comments from highways.
68. The planning officer’s report noted the NPPF (paragraph 109) says development should not go ahead on transport grounds when its cumulative impact is ‘severe’. It went on to consider policy S11 of the Core Strategy and found it compliant. It has access to bus stops, is close to a school and other local amenities. The Highway Authority was consulted to ensure it does not have an adverse impact on the safety of users of the highway and the highway network. The Council is also the Highway Authority and decided it would not have such an impact on the highway.
69. In principle, there were no objections to the scheme subject to concerns about access and the internal layout. The Council received amended plans making some changes which it could secure by way of condition.

Analysis

70. I found no fault on this complaint for the following reasons:
1. The report noted the Highways Authority checked the proposal did not adversely impact on the safety of all users of the highway, the highway network, or other assets.
2. There were no objections from the Highways Authority to the development although revised plans were received dealing with previously raised concerns. These included changes to the junction geometry, for example, and the re-design of the access to the processing site, along with some changes to the internal road system. Highways later confirmed minor changes could be dealt with by conditions.
71. I am satisfied the planning officer consulted with the highways team who gave its views on the proposal. This information was before the planning committee when it granted consent. Highways raised no other concerns that could not be dealt with by way of planning condition.

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Final decision

72. The Ombudsman found no fault on Mr J’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman