Herefordshire Council (20 003 865)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 17 Feb 2021

The Ombudsman's final decision:

Summary: The Council followed the correct process to determine a planning application. The Council was entitled to rely on the views of Highways England on the grounds of road safety; this professional consultee raised no objection to the development.

The complaint

  1. The complainant, who I will call Mrs B, says the Council wrongly accepted a planning application for determination because the wrong ownership certificate was used. The Council did not consider all site history relevant to the application and did not consider and answer her concerns about road safety. The Council did not reasonably assess road safety risks relating to a 300% increase in usage of a shared drive. The Council did not consider its Highways Guide. The Council did not address all parts of her complaint. The Council relied on a drawing that does not show the shared driveway. Wheelie bins are stored in the shared access, which reduce the space for vehicles to pass, this has not been considered. Even though Highways England may have had no objection, the Council still has a duty to consider all relevant evidence to reach its decision.
  2. Mrs B says because of the Council’s failures the access drive to her property is now unsafe due to its shared use, there is no passing points and no visibility, so if you are part way down the drive and another vehicle is coming the other way you will have to reverse, which could include reversing out onto a busy highway.

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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 provided by Mrs B and the Council, including relevant documents such as the case officer’s delegated report and responses from Highways England.
  2. Mrs B 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

  1. A planning applicant asked the Council as the Local Planning Authority to consider an application for development of two houses at land adjacent to Mrs B’s home. The Council must decide the planning application in line with its development plan, unless there is a good reason not to. The development plan incorporates the Local Development Framework for the area and any saved policies. The Council must also consider national planning policies and guidance.
  2. The Council must publicise and consult on the planning application, to allow a period for comments on the application. The Council did this and Mrs B put in comments.
  3. The Council’s planning officer visited the site and produced a report setting out their analysis. The report set out the relevant planning policy considerations, and consultation comments, including Mrs B’s objections. The Council consulted relevant statutory consultees such as Highways England who is responsible for the Strategic Road Network, which is the major road this development accesses from.
  4. Mrs B says the Council should not have accepted the planning application because the applicant used the wrong ownership certificate as they do not own the access road to the development site. The applicant submitted the required plans and drawings and ownership certificate, declaring they owned all the land to which the application relates. The location and site plan showed the application site as only the parcel of land in the applicant’s ownership and did not include the access road which is owned by another party. The Council says the applicant used the correct ownership certificate. The Council says at validation it is not always possible to tell if additional land is required for access, in this case there is an existing access so works were not required to create an access.
  5. Mrs B says the Council did not consider all site history relevant to the application Mrs B says the Council dd not refer to planning applications from 1993, 1994 and 1996. The case officer’s report only referred to a recent application for the same site which was refused. Councils must consider relevant site history.
  6. Mrs B says these issues mean there is inconsistency as an earlier application only allowed use of the exiting driveway to serve a single dwelling, and regarding the width of the driveway and visibility onto the main road.
  7. Mrs B says the Council did not consider and answer her concerns about road safety. Mrs B’s main area of concern is the access road to her property will now be shared with two other properties, but there are no passing points on the road. The access road is onto a major road and Mrs B has concerns of safety if a vehicle must reverse out to allow another to pass, as has happened with construction vehicles to allow her to exit. Mrs B says the shared drive usage will be increased by 300%.
  8. The Council explains the shared driveway is not a public highway that it is responsible for, it was also an existing driveway and not a new build. Highways England considered the intensification the shared driveway would create onto the major road. Highways England considered the visibility onto the major road, and the passing point at the entrance/exit of the shared drive onto the major road which allows two vehicles to pass away from the major road. Highways England had no objection to the development.
  9. Mrs B says the Council failed to consider that an increase in wheeled bins stored in the entrance to the driveway reduces the visibility onto the major road. Mrs B explains it also reduces manoeuvrability within the access area to the shared drive. The Council explains the waste collection is not a reason to withhold permission of the planning application. It will be for the homeowners to make suitable arrangements for the collection of their waste. There is suitable storage within the individual plots for the storage of bins.

Was there fault causing injustice?

  1. The declaration of ownership is a matter for the applicant. It is an offence to complete a false or misleading certificate knowingly or recklessly. The Council satisfied itself the applicant provided relevant documents to validate the application. The Council could see the access road on the location plan, and the development site on the development plan. Even if the Council was wrong, I do not consider validation by the Council affects the outcome. If the Council had asked for a different certificate and site plan showing the access road as part of the site plan and declaring other landowners were involved, I do not consider that would have changed its consideration on the merits of the application. So, the impact on Mrs B would be the same regarding the approval of the development.
  2. It is not fault that the Council did not include the planning applications in the site history that Mrs B refers to. The Council must include what it considers to be relevant, not all site history. The cases Mrs B refers to are over 20 years old and relate to the development of her property.
  3. Mrs B raised concerns about road safety and the lack of passing places on the shared driveway as objections to the development, so the Council considered these issues when reaching its decision that the application was acceptable. That is not to say it is perfect, but that there was not a good reason to refuse. The Council must determine the application put before it. The presumption is in favour of development unless there are reasons linked to planning policy to refuse it.
  4. The Council has not commented on the reduced visibility because of the bins on collection day, only to say the waste collection was not a reason to refuse. Many households experience some reduced visibility because of wheeled bins at the kerbside on collection day. As they are not a permanent fixture blocking sight lines, I can see no reason to challenge the Council’s decision.
  5. There will undoubtedly be challenges living in one of the properties off this shared driveway. Large deliveries will be difficult as there is no turning or passing places. At times you will meet another vehicle on the road and one vehicle will need to reverse to let the other pass. You will need to drag your wheeled bin along the road to present it at the junction with the major road for collection. But the Council did not consider these householder challenges were material planning considerations to warrant objection of the development. The Council also did not consider the lack of passing spaces, turning circle, or storage of bins on waste collection day, was reason to reject the application.
  6. Although Mrs B has significant concerns and strong views, that is not enough for me to say there was fault in how the Council reached its decision to approve the planning application.
  7. The Council considered Mrs B’s objections which included the concerns in this complaint, along with relevant consultees responses. The Council allowed time for further information as required by Highways England, which allowed the applicant to allay the concerns Highways England had and Highways England removed its objection. The Council considered relevant planning policies and conducted a visit of the site before reaching its decision. As there is no fault in how the Council reached its decision, there is no reason for me to question or criticise it, even though Mrs B strongly disagrees with it.
  8. The Council was entitled to rely on the comments from Highways England in relation to highway safety issues and visibility splays.

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Final decision

  1. I have completed my investigation on the basis there was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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