Summary: Mr C complains the Council failed to properly consider a planning application for an extension to a nearby supermarket. Mr C says he will suffer from noise and disturbance from construction work and from the loading area being brought nearer to his property. We have found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to properly consider a planning application for an extension to a nearby supermarket. In particular, Mr C says the application was similar to one the Council had previously refused and the Council did not make clear some aspects of the proposals.
2. Mr C says because of the Council’s fault, he will suffer from noise and disturbance from construction work and from the loading area being brought nearer to his property.

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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 read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. Councils are required to give publicity to planning applications.  The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website.
9. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
10. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
12. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made.

Key events

13. The Council had refused a previous application at the site for two reasons. The first reason was because the transport statement failed to address concerns about the increase in traffic likely from the increased store size and decreased car parking would have a detrimental impact on access and the flow of local traffic and a particular junction. The second reason was the detrimental impact on the character and appearance of the street scene.
14. The Council received a new planning application for the extension of an existing food retail store with associated changes to the existing car parking, access, servicing and landscaping.
15. The Council has provided details of its publicity for the new application. This included a list of addresses it used to send neighbour notification letters which included Mr C’s address, a copy of the template letter and a copy of the site notice dated 12 September 2019.
16. The description of the proposals set out on the site notice and neighbour notification letters was ‘Extension of existing food retail store (Class A1) with associated alterations to existing car parking, access, servicing & landscaping. The application includes the incorporation into the A1 site of 2 adjoining residential properties and part of the garden of a third’.
17. Mr C made a representation about the application. Mr C objected to the proposals and noted they appeared fundamentally the same as a previous application which was refused. Mr C asked to speak at the Planning Committee if the application was to be decided by the Committee. Mr C raised concerns about noise for an extended period during the demolition and restructuring works and that there were only minor changes to the access arrangements which did not resolve the serious highway concerns. Mr C raised specific concerns about the work to the south elevation and the close proximity to residential properties.
18. The case officer’s report for the application sets out that the existing retail site was next to residential properties including those on Mr C’s road and included a 42 metre square extension to the service area along the southern elevation for a new loading dock, extension/relocation of the existing car park and formalising a new access. The report also set out the planning history of the previously refused application and highlights the issues of highway safety and the amenity of neighbouring residential properties. The report refers to the amended layout to address concerns about access to the site and its relationship with a particular junction together with a detailed transport statement to justify reduced car parking provision and support that there was no severe impact on the highway. The report also refers to the inclusion of boundary landscaping to provide a buffer around the site and help screen neighbouring gardens as vehicles manoeuvre and park. The report also refers to the noise assessment provided with the application that concluded there would be no significant impact to the amenity of neighbouring properties subject to conditions controlling the demolition and construction timings and restrictions on the delivery times would help mitigate any disturbance. The report considered the proposals were acceptable and recommended approval subject to conditions.
19. The minutes of the Planning Committee meeting record that Mr C spoke at the meeting opposing the application. Members of the Committee raised concerns about noise disturbance both from the construction work and deliveries and sought mitigation through conditions. The Committee resolved to provide delegated authority to grant planning permission subject to a satisfactory coal mining report and relevant conditions including to mitigate the impact of construction and restrict the hours of demolition/construction, opening and deliveries.
20. The decision notice included conditions restricting the hours of demolition and construction work and commercial vehicle movements; the requirement of a construction method statement to be provided with details of the measures to mitigate the impact of construction on the amenity of residents; and details of landscaping including acoustic fencing.
21. Mr C complained to the Council in early April 2020 about the application being approved when it was so similar to the application which had been previously refused and that there was no reference to extensive work on the southern elevation. This complaint was posted to the Council during a period when its offices were closed due to COVID restrictions and was not received. Mr C emailed his complaint to the Council in early May. The Council provided a response in early June but Mr C remained unhappy.
22. The Council provided a response in mid-July at stage one of its complaint procedure which dealt with Mr C’s concerns about the application and the Council’s complaints procedure. Mr C remained unhappy with the response. The Council provided its final response to Mr C towards the end of August.

My assessment

23. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
24. The Council has provided good evidence of its publicity for the application which included a site notice and neighbour notification letters. Mr C has raised a concern about the description of the development as not highlighting the potential impact on neighbouring properties. There is no requirement to provide the level of detail suggested by Mr C. The purpose of publicising an application is to invite comments from people who may have information otherwise unavailable to a council which could influence its decision. Councils will, however, be unconcerned with the number of people who object or support the application. It will be determined according to weight of argument, not weight of numbers. I am satisfied the Council met the statutory publicity requirements for this application.
25. It is important to note that earlier decisions do not set precedents. Each planning application must be decided on its own merits against planning policies and other considerations that exist at the time. It is also possible for different decision makers to reach different decisions without fault.
26. The case officer’s report sets out that a previous application with the same description had been refused. The report goes on to say the application had improved the proposed landscaping to include a landscaping scheme around the site to soften the appearance of the car park in the street scene and this would be subject to condition with a requirement to be maintained. The report also noted the application had amended the layout and provided a detailed transport statement providing justification for the reduced car parking and which showed no severe impact on the highway and was now acceptable subject to conditions. I consider the case officer’s report provides enough information for its assessment that the new application overcame the previous reasons for refusal. The report also refers specifically to the impact of the extension on the southern elevation and provision of a new loading dock.
27. It is clear the Committee was aware of the previous planning history including Mr C’s representation highlighting his view that there was little difference between the two applications. Mr C also addressed the Committee to highlight his concerns. It was for the Committee to weigh the information and reach its own view of the planning merits and I consider it had enough relevant information to do so.
28. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so including Mr C’s representations. I have seen no evidence of fault in the way the Council reached its decision to grant planning permission for the development.

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Final decision

29. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman