Summary: Mrs B complained the Council granted planning permission for a school to develop its site without considering an objection from an environmental health officer. She said the school’s vehicle access near her property has been used more since. Mrs B said this has increased pollution, damaged her property, and lowered its value. We found fault with the Council’s complaint response. The Council had already taken suitable action to remedy any injustice to Mrs B.

The complaint

1. The complainant, who I refer to as Mrs B, complained the Council granted planning permission for a school to develop its site without considering an objection from an environmental health officer.
2. She said the school’s vehicle access near her property has been used more since. Mrs B said this has increased pollution, damaged her property, and lowered its value.

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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 considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Mrs B and the Council’s comments on a draft decision were considered before making a final decision.

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What I found

Legislation and guidance

8. The law says councils, that are local planning authorities, should approve planning applications which are in accordance with policies in their local development plan unless other material planning considerations indicate otherwise. (Planning and Compulsory Purchase Act 2004)
9. Material planning considerations must have a planning purpose and may include issues such as the impact on the neighbourhood.
10. Matters such as perceived loss of property value, the loss of a view, private rights to light and rights of way are not material considerations and cannot be taken into account. The council must be able to show it has considered the material planning considerations that are engaged by the planning process. (Town and Country Planning Act 1990)
11. Councils must provide reasons for their planning decisions. These can be in the planning officer’s report or in the decision notice or in a combination of both. Reasons may be brief, but they “must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved.” (South Bucks District Council and Another v Porter (No 2) 2004)
12. In April 2020, Buckinghamshire Council replaced the five former councils in Buckinghamshire, including Wycombe District Council. The Council has a two-stage complaint procedure:
• Stage one: a senior officer will oversee the investigation and provide a written response within 20 working days.
• Stage two: the deputy monitoring officer will oversee the investigation and provide a response within 20 working days.

What happened

13. This chronology includes key events in this case and does not cover everything that happened.
14. In March 2017, a school made a planning application to develop its site. The application included rearranging parking spaces in a car park which used a vehicle access. Mrs B lives opposite the vehicle access.
15. The Council prepared a report for its planning committee. It included a summary of the application, policy considerations, an assessment of the key planning issues, details of the consultation process and the representations received. Material considerations included transport matters and the amenity of existing and future residents.
16. Below is a summary of the report’s comments on matters relevant to this complaint:
• The highway authority was satisfied the development was acceptable.
• The environmental health department had no objection subject to two conditions: the Council would approve an air ventilation system before the development was used and electric vehicle charging points were incorporated in the development.
• The planning application could not deal with resident’s concerns that streets near the school were already congested with parking associated with the school. This was a long-standing issue that predated the planning application.
17. The planning officer decided the application complied with relevant national and local planning policies and guidance and recommended it for approval by the planning committee subject to planning conditions. These conditions included:
• The school needed a scheme for parking, manoeuvring and loading or unloading vehicles before the development was used to minimise danger, obstruction and inconvenience to users of the adjoining highway.
• The Council needed to approval a construction management plan before works began to minimise any inconvenience to residents during the construction period.
• Electric charging points needed to be incorporated into the development to support the Council to meet its Air Quality Management Area (AQMA) target and reduce the impact of the development on the health of residents.
18. The school made amended applications in January and April 2019. The Council consulted relevant public and statutory consultees about the amended applications, including the environmental health department. The department confirmed it had no objection to the application subject to the planning conditions.
19. Members of the Council’s planning committee visited the site the day before their meeting. The presenting officer took photographs of the site for those who could not attend.
20. On the morning of the Council’s planning committee meeting, an environmental health officer emailed the planning officer with concerns about congestion, air pollution and pedestrian safety. The planning officer spoke to the environmental health officer. There is a difference of opinion between the two officers about this conversation. The environmental health officer believed his concerns would be passed on to the planning committee. The planning officer thought the environmental health officer did not want to change the environmental health department’s formal consultation response and therefore his comments did not need to be given to the committee.
21. The Council’s planning committee considered the amended planning application in June 2019. The Council provided the planning officer’s report. It updated the committee with the County Council’s Education Service response to the application. Committee members listened to representations made by a local councillor, the applicant, and a member of the public who objected to the application. The committee granted planning permission subject to conditions, including:
• The scheme for parking, manoeuvring, and the loading and unloading of vehicles will be decided before the development is used, and these areas will not be used for any other purpose.
• Implementation of a Construction Traffic Management Plan.
• Instillation of three electric vehicle charging points.
22. The decision notice recorded, “members noted the update and then voted in favour of the motion to approve the application subject to conditions.”
23. In July 2020, Mrs B complained the Council:
• did not give enough weight to the Air Quality Management Area (AQMA);
• ignored the objections of residents to the planning application;
• failed to consider an objection made by an environmental health officer; and
• did not explain why lorries were using the entrance opposite her home to access the school rather than the dedicated waiting area.
24. Mrs B said the access opposite her house was being used more since the works on the development started and this had increased air pollution and the risk that her property would be damaged.
25. The Council provided a stage two response in September 2020. It apologised that its investigation took longer than expected. It explained:
• It was for the Council to decide what weight to give individual material planning considerations. Members of the planning committee were aware of the AQMA, the access arrangements and the general layout of the proposed development. It advised the committee had the environmental health officer’s extra comments before it considered and approved the application, and members had the opportunity to raise questions about this issue.
• Objections relevant to the planning application were included in the planning officers report.
• The planning officer spoke to the environmental health officer that raised concerns about the application. The officer confirmed he did not wish to change his department’s formal consultation. As the formal response from the environmental health department did not change, the comments in the planning officer’s report were correct and there was no need for any further update on the matter.
• The Construction Traffic Management Plan showed construction traffic would access the site by the entrance opposite her house.
• It was not expected that the development would create unacceptable levels of pollution even if the entrance in front of Mrs B’s house was used more.
26. The Council did not uphold Mrs B’s complaint. It told Mrs B how to report planning breaches to the Council and make a claim for any damage to her property. It advised her to report any vehicles causing an obstruction to the police.
27. The environmental health officer said the Council misquoted him in its stage two response. Mrs B complained the Council’s stage two response contained false statements.
28. The Council responded to Mrs B. It told her it had spoken to the environmental health officer and the planning officer. The Council confirmed the environmental health department’s formal response to the application did not change. It advised the environmental health officer’s concerns were noted by the planning officer but not referred to the committee as there had been no change to the department’s decision. The Council said it had not found any inconsistencies or procedural matters that called the planning process into question. It confirmed its decision not to uphold her complaint.

Analysis

29. The Ombudsman is not an appeal body. We look for fault in the process by which decisions are made and do not criticise judgements made by the Council’s officers and members if there is no fault.
30. In this case, the Council presented the planning committee with a report that considered:
• relevant policy and guidance;
• material planning considerations, including the impact of the development on air pollution and the amenity of residents; and
• consultation responses and representations, including objections.
31. The Council gave the planning committee the planning officer’s report and an update by the Council about the County Council’s Education Service response to the application. The committee heard representations from a councillor, the applicant, and a member of the public.
32. On the balance of probabilities, if the Council had made the planning committee aware of the environmental health officer’s concerns it would not have altered the committee’s decision to grant planning permission. The planning officer’s report considered the impact of the development on congestion and pollution, including that the development was in an Air Quality Management Area. It also listed the objections made by residents, these included concerns about congestion and pollution. Therefore, the committee was aware of the matters raised by the environmental health officer when it decided to grant planning permission. Indeed, it granted permission subject to conditions aimed at addressing these matters. Granting planning permission was a decision the committee was entitled to make. I have not seen any evidence of fault in how the committee reached its decision and so I cannot question its merits.
33. The Council should have responded to Mrs B’s stage two complaint in 20 working days. Instead, it took 40 working days to respond, this delay was fault. The Council’s apology was a suitable remedy for any injustice caused to Mrs B by the delay. In the Council’s stage two complaint response it mistakenly told Mrs B the planning committee had a copy of the comments the environmental health officer sent the morning of the planning committee meeting, this was not the case. The Council sent Mrs B a letter correcting its mistake. This was a suitable remedy for any injustice caused to Mrs B by its error.

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Final decision

34. I have completed my investigation and uphold Mrs B's complaint. There was fault by the Council which caused injustice to Mrs B. I am satisfied the Council has taken action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman