Summary: Mr X complained about the way the Council dealt with planning matters on land near his home. We found no fault in the way the Council has acted.

The complaint

1. Mr X complained about the Council’s decision to approve an industrial building on land near his home. Mr X said the building will affect his property, which is a grade II listed building in a conservation area.
2. Mr X also complained that the Council failed to:
• inform him of several planning applications between 2015 and 2018 which affect his property;
• maintain planning control of the site, which now includes a change of use to processing and storage of waste materials.

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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. We can decide whether to start or discontinue an investigation or any part of an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), 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 complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s reports. I also discussed the site with a planning enforcement officer.
7. I gave Mr X and the Council an opportunity to comment on an earlier draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
10. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
11. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
12. 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.
13. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
15. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and it is an important planning consideration, we would expect to see evidence to show the council had taken the issue into account before it made its decision. Without some evidence to show the council considered the issue, we cannot know whether it has exercised its discretion properly.
16. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.
17. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
18. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – Buildings of exceptional interest.
• Grade II – Buildings of particularly important/more than special interest.
• Grade III – buildings of special interest.
19. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority. Councils may also consider the impact nearby development will have on listed buildings.
20. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
21. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• 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
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
22. Planning legislation divides responsibility between different types of council. Waste and minerals planning matters are considered ‘county’ matters and are usually dealt with by county councils.
23. Regulations set out the minimum requirements for how councils publicise planning applications.
24. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
25. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
26. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
27. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

28. Mr X lives in a grade II listed building which is in a Conservation Area. The site next to him is occupied by a business for an industrial use, which the Council said was in use for more than 15 years.
29. The site operator submitted a planning application for a new industrial building near the boundary closest to Mr X’s home. The purpose of the building was to house a machine that already existed.
30. The Council’s planning case officer visited the site and wrote a report. The case officer’s report included:
• A description of the proposal and site;
• A summary of relevant planning history;
• Comments from Mr X and other consultees;
• A summary of planning policy and guidance considered relevant;
• An appraisal of the main planning considerations, including impact on the surrounding area, neighbouring amenity and flooding; and
• The officer’s recommendation to approve the application.
31. The application was approved by an officer using delegated powers. It was approved subject to conditions, one of which controlled the hours of use of the building to protect the amenities of neighbours.
32. Mr X complained about the impact the development will have on him, as it is visible from his home and will be overbearing. He said the case officer’s report was incomplete and the assessment inaccurate, because the flood risk assessment wrongly claimed the site had been covered with hardstanding. He believes that, because water cannot soak into the ground, it will increase surface water run-off.
33. The flood risk assessment does say the site is entirely covered by hardstanding, but the case officer does not comment on this in the report. Concerns about flooding and drainage are considered, though, and the drainage authority comments state there were no concerns regarding flood risk or surface water run-off.
34. The case officer’s report notes that Mr X’s home is a listed building. It also discusses the impact the building will have on neighbouring amenity and the local area. The officer said that because of its design, size and location, the building would not have a significant impact on the conservation area or neighbouring properties.
35. Mr X complained the planning case officer had told him that the Council had not been sending him planning notifications for applications on the site between 2015 and 2018, because it had the wrong address for him on its database.
36. I asked the Council to comment on this allegation. It said the planning case officer had no recollection of saying this to Mr X. The Council said that Mr X’s address details were corrected in 2018 after he had complained about a failed bin collection. The Council said that since then, it has had the correct address details.
37. The Council’s planning officer sent me details of planning applications decided between 2015 and 2018. The applications included new and replacement industrial buildings, and a variation of materials application. The details, which are on the Council’s website, showed that the impact on neighbouring amenity was considered and conditions to protect neighbours were imposed.
38. Mr X also complained the Council has failed to maintain planning control over the site, which has been allowed to change its use without permission. Mr X said that there is an unlawful use on the site of the storage and process of waste materials, including building waste.
39. I spoke to a planning enforcement officer about Mr X’s allegation. The enforcement officer said that Mr X had not raised this issue of unlawful waste use with her department. The enforcement officer explained that her Council was not the waste and minerals planning authority for the area, and these matters were dealt with by the County Council. The enforcement officer said that she could consider any allegations Mr X chose to make and refer them to the County Council planning authority if there was a waste issue for it to investigate. Alternatively, Mr X could make his allegations directly to the County Council.
40. The enforcement officer said that the site was a single planning unit and had been used for industrial use for some time. She said that in recent years, the site had been improved and tidied by the addition of new buildings and in her view, there had not been a change of use. The enforcement officer said she had investigated complaints from Mr X in the past, but her investigation files were now closed because the site operator had sought and was granted planning permission for development on the site.
41. Mr X said he had already made a clear allegation to planning enforcement that there was an unlawful waste management activity on the site. He also said that one of the tenants of the site holds a waste movement/management licence.
42. I asked Mr X to provide evidence and he sent me an email in which he refers to ‘waste materials, rubble, hardcore etc’ on the site. In his complaint to the Council, he also mentioned storage of waste materials and aggregates on the site.

My findings

43. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
44. Mr X’s main complaint is about the new building close to the boundary nearest his home. It has no windows facing him, it is about 10 metres away and offset at an angle of about 60 degrees from the rear of his home. There is a lane and a hedge between Mr X’s home and the site. The building is single storey with a pitched roof, and its gable faces the boundary nearest Mr X.
45. Before a decision on the planning application was made, the Council took account of Mr X’s comments and considered the impact the development would have on its surroundings. It knew the building was in a Conservation Area and that his home was a listed building. The Council has followed the decision-making process we would expect and so I have seen no fault in the way it made this decision.
46. I should also note that, even if I had found evidence of fault, I could not say the building causes a significant injustice to Mr X that would lead us to recommend a remedy. It is partially hidden by the hedge and views are not generally protected in English planning law. It is not an injustice to see another building or part of building from our homes. There is nothing particularly unusual in the way the building relates to Mr X’s home.
47. Mr X is concerned the flood risk assessment was incorrect and that he may be affected by surface water that might have soaked into the site. We do not expect case officer reports to refer to every possible planning consideration, and I cannot say the case officer should have referred to the claim that the site was all hardstanding or that they should have checked the veracity of the claim. Even if this had happened, I cannot say it is unlikely the application would have been approved. We know the Council did consult the drainage authority which did not have concerns. The drainage of the site will also need building regulation approval to ensure that it is properly drained.
48. Mr X complained the Council did not consult him on applications before 2018. The Council does accept that Mr X’s address details were corrected in 2018, but I have seen no evidence to show the Council was at fault for the discrepancy prior to this. In any event, I cannot say the decisions made between 2015 and 2018 would have been any different, even if Mr X had been consulted. This is because the records on the Council’s website show it considered the impact on neighbouring amenity before it made its decisions.
49. Mr X said the Council failed to control the site, which has changed its use. He did refer to waste materials and aggregates on the site, and he said he had submitted evidence to show the waste was not connected to building works.
50. I have read Mr X’s emails and I cannot say it would have been obvious to any officer that he was alleging the use of the site had changed from an industrial to a waste use. If there had been such a change, this would ultimately have been a matter for the County Council.
51. It is also worth noting that at the time Mr X contacted the Council, the site had been undergoing development works. Because of this, it would not be surprising to find building materials and building waste on it, even some time after the works were completed. We should also recognise that most land uses will generate waste and include some waste storage, but this will not mean the fundamental use of the land has changed to a waste use that needs special waste planning controls by the County minerals and waste authority.
52. Mr X said the change of use to a wase site is clear because one of the tenants has a waste licence. Many businesses require licences to carry waste in vehicles, but this will not necessarily mean they also need planning permission to formally change the use of the land from which they operate. Whether there has been a change of use is a matter for the relevant planning authority to decide.
53. Even if we found fault on the part of the Council, it is unlikely to result in a meaningful remedy for Mr X. This is because his home is well screened from the site and any inert waste stored on it. If there has, as he has suggested, been a change of use, it would be a matter for the County minerals and waste authority to control.

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Final decision

54. I completed my investigation because there was no fault in the way the Council dealt with planning matters on the site near Mr X’s home.

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Investigator's decision on behalf of the Ombudsman