Summary: Mr X complained the Council approved a planning application that is contrary to the Local Plan, failed to consider his objections and failed to respond to breaches of planning control. We find the Council was not at fault.

The complaint

1. Mr X complained about the Council’s decision to approve planning permission at a site next to his home. He said the Council failed to:
• consider a supplementary planning document (SPD) that was part of the Local Development Plan;
• refer the application to planning committee despite being a departure from the local plan;
• complete the appropriate risk assessments on the site before agreeing planning permission;
• properly consider the loss of outlook and privacy to his property; and
• respond to unlawful development between his property and the site.
2. Mr X said the Council’s actions means the development is not in keeping with the area, his property is overlooked and he has contaminated water leaking onto his property. He wants the Council to:
• insist on a correctly built retaining wall made from materials with a 50-year life;
• isolate his property from the contaminated site;
• prevent overlooking or compensate him for the loss of value to his home this has caused.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered:
• information provided by Mr X and the Council
• details of the planning application on the Council’s website
• the Council’s process for deciding planning applications and;
• the adopted local plan
6. Mr X 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 applications

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
8. The Council’s consideration of the key material issues are contained within the case officer’s report. This is written to advise the decision-making body or individual.
9. When they approve planning applications, councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. The conditions are included with the decision to approve the application.
10. The courts have made it clear that:
• Case officer reports do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• Case officer reports do not need to include every possible planning consideration, but just the principle controversial issues.
11. The Council’s constitution states most of its planning decisions are made by an officer with delegated authority. Only 3% of planning decisions are decided by planning committee; the Council’s constitution lists when planning decisions must be referred to committee.

Supplementary planning documents

12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
14. There is SPD for the village that Mr X lives in This was approved in 2011. The SPD is considerred a material planning consideration, however, the document states it “does not supersede or override policies contained in the Chelmsford Core strategy and Development Control Policies 2001 – 2021 or current or future planning legislation from central Government”.

Contaminated land

15. Government guidance states that to ensure a site is suitable for any potential development, contamination should be considerred throughout the planning process. It states “where there is reason to believe contamination could be an issue, applicants should provide proportionate but sufficient site investigation information (a risk assessment) prepared by a competent person to determine the existence or otherwise of contamination”.
16. Where contaminated land cannot be dealt with through planning processes and contamination poses an unacceptable risk to human health, the government has published statutory guidance for Local Authorities in line with the Environmental Protection Act 1990.

What happened

17. Several years ago, the Council received an application to build flats on the site of a former garage next to Mr X’s home. The Council granted permission for that application.
18. More recently, the Council received a new planning application to build houses on the site instead of the flats.
19. Mr X objected. He said the development would not be in keeping with the planning guidance for the village. He raised concerns about the development overlooking his property; drainage of the site and the potential for the land of the site being contaminated.
20. A planning officer visited the site and prepared a report on the proposal. The Officer noted the relevant policies and explained why they considered the proposed development met the policy requirements. This included addressing the objections received, including those made by Mr X.
21. A senior officer approved the application using delegated powers. That approval included a condition that no development could take place until the site had been risk assessed and a plan for dealing with any contamination had been approved by the Council.
22. The developer arranged a risk assessment and the remedial works required. They made a new planning application, which was broadly the same as the previous one but with changes to the parking arrangements.
23. Again, Mr X objected to the application. His objections focussed on overlooking, concerns about height difference and how the site would be retained along the boundary wall.
24. The case officer report contained a summary of the objections received and explained why the officer considered the application was acceptable. The report references Mr X’s objection because of overlooking due to the differences in ground levels. The officer noted the position of the new property would only allow indirect views towards Mr X’s home. He noted the boundary landscaping would help to reduce these views. On balance, the officer considered the relationship between the proposed development and Mr X’s home to be acceptable.
25. The Council agreed the planning application however it included several conditions including a condition to deal with possible contamination and a condition requiring the developer to submit details of boundary treatments (i.e gates, fences, walls railings or piers) for approval before any of the new properties could be occupied.
26. Mr X complained to the Council. He said the Council failed to refer the application to the planning committee despite objections from residents and the parish council. He said the development was contrary to the villages SPD. He said the Council did not consider overlooking, privacy or the ground levels in relation to his home.
27. The Council did not uphold his complaint. It said for consideration at committee a ward councillor would have had to ask for the application to be referred. It did not receive a request, and the case was therefore decided under delegated authority.
28. The Council said the relationship between the development site and Mr X’s property was considered in the report. It accepted some overshadowing and overlooking would occur but this was not considered to be so significant as to warrant refusing the application. It confirmed the developer had not yet submitted the details of the boundary treatments for approval.
29. Mr X was not satisfied and escalated his complaint; he said the developer had put up a fence between their properties which was too high and against permitted development. In its stage two response, the Council said it was satisfied the application was considered appropriately against the relevant adopted and emerging policies. It said it considered the relationship between Mr X’s house and the new development to be acceptable.
30. It stated the fence that had been put up by the developer had not been approved, and the houses on the development could not be occupied until the Council had approved the boundary treatments. However, it went onto state that as it was below the height allowed by permitted development, the fencing was not a breach of planning control and the Council could not take enforcement action.
31. Regarding Mr X’s concerns about contamination, the Council confirmed its Public Health and Protection Services had considered the contamination report provided by the developer. It stated there was a planning condition in place about the contamination that had not been discharged as the Council had not received verification that the contamination found at the site had been remedied.
32. Mr X remained unhappy with the Council’s response and escalated his complaint to the Ombudsman.

My findings

33. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made. We cannot question the merits of the Council’s decision if there is no evidence of fault in how it was made.

The Council’s failure to consider the supplementary planning document

34. Mr X said the Council had not revoked the SPD therefore it should have adhered to it when considering the planning application as a material planning consideration. The villages’ SPD states that it does not override policies contained within the Council’s core policies and National Planning Policy Framework. The Council has explained the SPD was developed before the NPPF. Throughout the case officers report, they have referred to how they have considered and applied the Council’s core policies. The Council was not at fault.

The Council’s failure to refer the application to planning committee

35. The Council’s constitution sets out when an application must be referred to committee. None of the criteria applied to this application. The Council was not at fault for making the decision through delegated officer’s powers.

The Council’s failure to take appropriate investigations on contaminated land

36. Mr X believes the Council has not complied with the Environmental Health Act 1990 in how it has dealt with contamination at the site. Government guidance states that potential contamination on development sites can be dealt with through the planning process. The Council made a condition for the developer to complete a risk assessment of the site and complete remedial work to remove the identified contamination. The Council was not at fault in how it has considered the contamination of the site.

How the Council considered loss of privacy and overlooking

37. The case officers report demonstrates they considered the relationship between Mr X’s property and the new development. I cannot question the merits of the case officer’s decision without evidence of fault in how the decision was made. The case officer considered all available information in making their decision. The Council was not at fault.

Failure to control unlawful development (a high fence) between Mr X’s property and the development

38. The Council has not yet discharged the condition about the boundary treatment between properties, until it does, I cannot make a finding on this aspect of Mr X’s complaint.

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Final decision

39. The Council was not at fault in how it dealt with a planning application at a site next to Mr X’s house, therefore, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman