London Borough of Hackney (20 001 757)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 31 Mar 2021

The Ombudsman's final decision:

Summary: Ms E complained the Council excluded her from the planning process by not informing her about a planning application for a development near where she lives. She also complained about how the Council dealt with her complaint. We find there was no fault in the Council not informing Ms E about the planning application. However, the Council was at fault as the case officer’s report did not sufficiently consider the impact of the planning application on Ms E’s amenity. This did not cause her a significant injustice. There was further fault in the way the Council dealt with Ms E’s complaint. It apologised to her and confirmed it had reminded relevant members of staff about the correct complaints procedure to follow. This is a suitable remedy.

The complaint

  1. Ms E complained the Council excluded her from the planning process by not informing her about a planning application for a development near where she lives. She says the Council changed its planning procedures to suit the applicant. She also complains about how the Council dealt with her complaint.
  2. Ms E says it has caused enormous distress and anxiety. She adds the development will affect her quality of life because of the noise disturbance. She also has concerns about her safety because the development blocks the streetlight to her property.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  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)

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How I considered this complaint

  1. I considered information Ms E submitted with her complaint. I made written enquiries of the Council and considered the information it provided in response.
  2. Ms E 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

Planning permission

  1. The Town and Country Planning Act 1990 gives local authorities the power to decide if planning applications should be approved, refused or approved subject to planning conditions.
  2. Councils delegate most planning decisions to a planning officer. The officer’s report on each application should show they have considered all relevant matters. It is for the officer to decide how much weight to give to any material consideration when determining a planning application.
  3. Material considerations relate to the use and development of land in the public interest, and not to private consideration such as the reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.

What happened

  1. Ms E lives near a development site that has a long planning history.
  2. The Council received a retrospective planning application (Application A) to erect three air conditioning units on the rear wall of a building near to where Ms E lives. The application also proposed two units on the roof of the building at first floor level and the erection of acoustic enclosures around the proposed units. The Council granted planning permission subject to conditions which included that the development had to be carried out according to submitted plans. The applicant also had to provide the Council with full details of the specifications of the acoustic enclosures.
  3. The applicant submitted various applications to the Council after Application A. The Council discharged the condition from Application A about the acoustic enclosures as the applicant submitted the relevant details. It refused a different application to vary the condition about the plans from Application A because the proposal would have resulted in unacceptable noise nuisance to neighbouring occupiers.
  4. The Council received a further application (Application B) to vary a condition from Application A. The applicant wanted to install three separate acoustic enclosures around the units rather than one single acoustic enclosure. The applicant also wanted to remove the roof units from the proposals.
  5. The case officer referred to the measurements of the acoustic enclosures in his report. He noted that although they would be relatively large, the design was acceptable and not disproportionate to the character of the area. He also noted that because of the height of the enclosures, they would not cause an unacceptable loss of light or have an overbearing impact on residential properties.
  6. The Council granted planning permission subject to conditions. One condition was that the applicant had to provide the Council with acoustic information to show how that the proposals would not cause unreasonable noise nuisance for neighbouring occupiers.
  7. The Council received another application (Application C) to discharge the condition for noise from Application B. The applicant provided the Council with an acoustic report. The Council granted the application and discharged the noise condition. The case officer noted the acoustic report showed that neighbouring occupiers would be shielded from excess noise.
  8. The case officer received one external comment about the size of the enclosures. He noted in his report that while the enclosures were bigger than the design from Application B, they needed to be that size to prevent noise disturbance. The height and depth of the enclosures remained the same from the design in Application B, but the width had nearly doubled in size.
  9. Ms E complained to the Council in January and said:
  • The case officer’s report from Application C included an external comment about the measurements of the enclosures. She asked where the comment came from.
  • She was not informed about the planning application to discharge the noise condition and therefore the Council had prevented her from submitting her objections.
  • The case officer’s report from Application B stated the smaller measurements were a determining factor in granting the application, as bigger enclosures would have a negative impact on the character of the area.
  • Granting planning permission for the bigger measurements would result in an unacceptable loss of outlook and light.
  1. The Council’s planning department responded to Ms E’s complaint in February. It said:
  • Application C was an application to discharge conditions for which public consultation is not required.
  • While it did not undertake a public consultation, Application C was on its website and members of the public could comment if they wished.
  • The external response referred to in the case officer’s report was from a member of the public through correspondence with the enforcement team.
  • That if she was not happy with its response to her complaint, she should contact the Business Analysis and Complaints team.
  1. Ms E emailed the Business Analysis and Complaints team in February. She said the Council had not answered all her questions.
  2. The applicant submitted a further application (Application D) to the Council. The applicant proposed to vary the condition from Application A by installing two roof units without acoustic enclosures. The Council refused the application because it was concerned about noise nuisance. The case officer referred to the increased measurements from Application C in his report. He reiterated his previous comments from Application B that the height of enclosures would not cause an unacceptable loss of light.
  3. The Council’s planning department responded to Ms E’s complaint in April. It said that case officers must assess the proposal’s bulk mass, and scale in line with relevant planning policies and guidelines. It also said that the acoustic report concluded the size of the enclosures was required to prevent excessive noise disturbance. Finally, it said occasionally information provided in response to an application to discharge conditions differs from the information provided in a full planning application.
  4. Ms E emailed the Council and asked why it did not refer her to the Ombudsman, considering her complaint was addressed to the Business Analysis and Complaints team.
  5. The Council’s planning department responded to Ms E’s email and said her email from February was treated as a follow up response to her initial complaint, rather than a request to progress her complaint to stage two. It said the issue of design can be subjective and planning applications are assessed in line with relevant planning policies.
  6. Ms E emailed the Council in July and said she was not happy with the Council’s response to her complaint. She said the Council had failed to follow its complaints procedure because she had received not a response from the Business Analysis and Complaints team as she should have done.
  7. The Council issued its final response to Ms E’s complaint in August. It said it had had answered all her questions when it responded to her complaint in April. It also said when it received her email in February, the complaints team decided the planning department needed to provide a further response. It said it should have informed her it was doing this and apologised for not doing so. It also said it had reminded officers in the complaints team about the process they needed to follow regarding follow up cases and the need to keep complainants updated.

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Analysis

  1. There is no statutory obligation for councils to publicise applications to discharge conditions. Therefore, the Council is not at fault. It considered the information the applicant submitted and decided it was appropriate to discharge the condition about noise. That is a decision it was entitled to take and therefore I have no grounds to criticise it. I also agree with the Council’s comment that when deciding to discharge conditions, it needs to focus on the required result, which in this case was protecting neighbouring occupiers from excessive noise disturbance.
  2. The case officer’s report from Application C notes the enclosures were bigger than the previous design from Application B. It was necessary for them to be that size to accommodate the units. However, the case officer did not consider in his report whether this would have an impact on Ms E’s amenity. This is fault.
  3. I do not consider this fault caused Ms E an injustice. The case officer had already noted in Application B that because of the height of the enclosures, they would not cause an unacceptable loss of light. The height of the enclosures had not changed in Application C, it was only the width.
  4. I also note that although the Council refused application D, the case officer referred to the increased measurements from Application C in his report. He reiterated that although the enclosures were big, they were not disproportionate to the area and the height was a key factor in determining whether there was an unacceptable loss of light. Application D came before the units were installed. Therefore, I consider even if the Council had considered the impact of the bigger enclosures on Ms E’s amenity in its report on Application C, it would have still discharged the condition and granted planning permission.
  5. The Council was at fault in the way it responded to Ms E’s complaint. It did not follow its complaints procedure and failed to explain to her why it was not following it. However, it apologised to Ms E for this error. It also said it had spoken to officers and reminded them about the process they needed to follow regarding follow up cases and the importance of keeping complainants updated. This is a suitable remedy for the injustice caused by fault.

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Final decision

  1. The Council was at fault as it did not sufficiently consider the impact of the development on Ms E’s amenity. However, this did not cause her a significant injustice. The Council was also at fault in the way it dealt with Ms E’s complaint, but it offered a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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