Summary: There was no fault by the Council in a complaint alleging fault in its handling of planning applications for the construction of dog kennels at a property.

The complaint

1. The complainant, whom I shall refer to as Mr X, acts on behalf of Ms Y, whose home is close to the application site. Mr X complains of fault in the Council’s handling of planning applications for the erection of dog kennels at the application site.
2. Mr X says:
• Ms Y was not advised of the original application in 2018 and so was denied the opportunity to object to it.
• The Council accepted a fraudulent traffic plan with the 2018 application.
• The planning officer colluded in the fraud or was negligent because he did not visit the application site.
• The applicant was required to submit a noise report as a condition of the grant of planning permission in 2018 but the noise report the Council received was limited and unsatisfactory.
• The Council’s planners breached the key recommendation of the noise report by stealth. They allowed three dogs in the paddock area and a further three dogs beyond this area. The planning committee was kept in the dark by officers as they were only invited to approve the doubling of the dog exercise hours.
• There was unreasonable delay by the Council in completing its complaints procedure.
• The Council did not properly respond to a freedom of information request he made.

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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 normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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 examined the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and invited the comments of both sides on it.

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What I found

Background

7. In 2018, the Council considered a planning application which proposed the creation of an extension to an existing bungalow, alterations to a stable/storage building and erection of dog kennels.
8. The applicant submitted a traffic plan as part of the application. In the plan, the applicant’s agent stated there were 142 trips to the site each week in association with its use as a livery stables. In contrast, the agent said the proposed use of the site would generate 107 trips each week.
9. Mr X says the applicant dishonestly claimed to be operating livery stables for nine horses which would be reduced to stables for two horses if the Council granted planning permission for the dog kennels. Mr X says the truth is that the applicants never ran livery stables or owned horses and there have been no horses on the site since 2016. Mr X cites testimony from the previous owner of the site in support of his claim. Mr X says the agent’s statement of the number of trips to the site was fictional.
10. The traffic plan was provided to the Council as well as the highways authority which is a county council. The highways authority did not object to the application.
11. The planning officer’s report includes an assessment of ‘highway issues’. The planning officer considered there would be adequate parking and turning facilities at the site and so concluded approval was unlikely to lead to severe detrimental highway issues. The officer noted the highways authority did not object to the application.
12. The planning officer also considered the proposal’s impact on neighbouring properties. The officer noted the kennels would be sited at least 100 metres away from the nearest property. The officer said the development would lead to some noise but given the design of the building, the separation distance from neighbouring properties, and mitigation measures which would be included by way of conditions, the noise pollution would not be significant enough to severely detract from the amenity of neighbours.
13. The planning officer consulted the Council’s environmental protection services. The service raised no objection provided the applicant submitted a detailed noise assessment before commencement of the development.
14. The Council granted planning permission. It included a condition that required the applicant to submit a detailed noise assessment and a report for its written approval before commencement of the development.
15. Mr X or Ms Y found out about the planning application in 2019. It appears they contacted the Council as it decided to formally publicise the application submitted by the applicant to discharge the condition on the noise assessment.
16. Planning officers put the applicant’s noise report to the environmental protection officers for advice. Environmental protection officers were satisfied with the contents of the report and the methodology used to compile it. The condition was discharged. Planning officers noted there were areas within the applicant’s ownership which were not surveyed for noise in the report. It said dog exercising within those areas would be unlawful.
17. Mr X says the noise assessment was inadequate. He says measurements taken outside Ms Y’s home were not used. He says the property is downwind of the proposed kennels and there are no barriers between the property and the kennels. Mr X says the Council relied on a quasi-scientific noise report rather than common sense.
18. The applicant then proposed to vary the conditions of the 2018 planning permission. The application sought to vary conditions on the approved plans, materials, noise mitigation, opening hours, external training activities hours and remove a condition on noise assessment.
19. The Council publicised the application. Mr X and Ms Y commented on the application during the public speaking session.
20. The report for the Council’s planning committee also summarised their objections to the application as follows:
• Noise and disturbance impacts on residential amenities of neighbouring properties
• Highway safety concerns relating to access
• Proposed increase in opening hours is excessive and exceeds those of other local businesses
• Potential for light pollution
• Additional conditions should be attached to limit noise and disturbance impacts
21. The committee report considered the application’s impact on neighbouring properties. The report noted there had been discussions with the applicant with the express intention of addressing the concerns raised by neighbouring properties. The view of officers was that the proposed changes to the original planning permission would meet the operational needs of the business while ensuring the amenity of neighbouring properties would be protected. Environmental protection officers were satisfied with a new noise report submitted by the applicant.
22. The highways authority was satisfied the proposal would not affect highway safety.

Finding

Ms Y was not advised of the original application in 2018 and so was denied the opportunity to object to it

23. The Council publicised the application by directly contacting adjoining property owners as well as placing a site notice on a highway close to the application site. This meets the legal publicity requirements.
24. Ms Y’s home does not adjoin the site and so the Council was not legally required to directly contact her.

The Council accepted a fraudulent traffic plan with the 2018 application

25. Responsibility for accuracy of documents submitted with a planning application rests with the applicant. The Ombudsman expects a local planning authority to make enquiries into the accuracy of documents if the alleged inaccuracy is brought to its attention when the planning application is under consideration by it.
26. In this case, the Council did not receive any information about the traffic plan before it approved the application. I do not find fault by the Council here.
27. I cannot look into whether the highways authority was misled by the content of the traffic plan. That is a matter for a complaint against the highways authority and not this council as the local planning authority.

The planning officer colluded in the fraud or was negligent because he did not visit the application site

28. As I stated in the preceding section, I do not find fault by the Council because it was unaware of the alleged fraudulent statement in the traffic plan. I do not therefore find the planning officer colluded in a fraud.
29. Local planning authorities generally conduct site visits. I have not seen the Council’s response to Mr X on this point. But I do not consider further enquiry into this point is necessary. This is because I am satisfied the planning officer’s report shows the officer assessed the application against the Council’s development plan policies and the National Planning Policy Framework. I note the objections the Council received against the application were summarised in the report and account taken of those considerations.

The applicant was required to submit a noise report as a condition of the grant of planning permission in 2018 but the noise report the Council received was limited and unsatisfactory

30. Mr X says the noise report was inadequate as it used two limited locations and cited a British Standard methodology that has no application to domestic animals. Mr X says the measurements taken outside Ms Y’s home were not used. He says Ms Y’s home is downwind of the kennels and there are no barriers between her home and the kennels.
31. Planning officers sought advice from environmental protection officers on the noise report. The professional judgement of environmental protection officers was that the report was acceptable.
32. I recognise Mr X disagrees with the judgement of the Council’s officers here. But it is not for the Ombudsman to substitute his own judgement for that of the Council’s officers in the absence of fault in the process leading to that judgement.

The Council’s planners breached the key recommendation of the noise report by stealth. They allowed three dogs in the paddock area and a further three dogs beyond this area. The planning committee was kept in the dark by officers as they were only invited to approve the doubling of the dog exercise hours

33. The application clearly proposed variation of conditions and removal of a condition on noise assessment. So, it cannot be said that the application breached a key recommendation of the noise report if the noise report was proposed to be removed and replaced by a new report.
34. I do not find the planning committee was kept in the dark. I note Mr X objected to the application and addressed the committee at its meeting.

There was unreasonable delay by the Council in completing its complaints procedure

35. The Council accepted there were unreasonable delays in responding to Mr X’s complaint. It offered a formal apology from a senior officer.
36. The apology was the appropriate remedy for Mr X’s understandable frustration with the delays. I do not find further pursuit of the matter of the delay by the Ombudsman is now warranted.

Final decision

37. I closed this complaint because I did not find fault by the Council in the matters raised here.

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Investigator's decision on behalf of the Ombudsman