The Ombudsman's final decision:
Summary: Mr X complained that the Council failed to properly consider an application for prior approval for an agricultural building near his property. Mr X says the building is in an area of outstanding natural beauty and will impact on his outlook and value of his property. The Ombudsman has found no evidence of fault in the way the Council reached its decision.
- Mr X complains the Council excluded the local community from the planning process for a new farm building in an area of outstanding natural beauty (AONB) and failed to properly consider the application. Mr X says the Council failed to publish a site notice and information was not available for public view or comment.
- Mr X says because of the Council’s faults he lost the opportunity to make representations about the application. He has suffered distress and uncertainty and incurred financial costs during the process. Mr X also says that he will have to consider relocating or incur significant costs to mitigate the impact on his amenities.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I considered the complaint and the information provided by Mr X. I spoke to Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response. I sent Mr X and the Council a copy of my draft decision and invited their comments. I considered all the comments I received before reaching my final decision.
What I found
Background and legislation
- Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority. The Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Order”) sets out classes of development for which permission has been granted. This includes agricultural buildings.
- For some types of permitted developments rights applicants must obtain ‘prior approval’ from the council to authorise certain elements of the work before carrying out the development. This includes considering the impact of the development upon the landscape with regards to visual amenity.
- In some parts of the country, known as ‘designated areas’, permitted development rights are more restricted for example in national parks, conservation areas or an area of outstanding natural beauty.
- A council must take into account any representations made by consultees when it determines the application. It may grant prior approval unconditionally or subject to conditions.
- The Council received an application for prior approval for a proposed general purpose agricultural building, as a workshop, machine store and temporary grain holding. The application site was located on the opposite side of a vehicle track to Mr X’s property.
- The Council accepted the application on 19 February 2020 and on the same day it consulted with a land and property consultant who advised the Council on agricultural development matters. The consultant made no objections and confirmed that the proposed building was reasonably necessary for agriculture. The Council said there was no requirement to consult with the local community. Mr X became aware of the application and submitted three objections.
- The planning officer noted Class A, of Schedule 2 of the Order applied to this application and that an agricultural need for the proposed development was accepted. The officer noted the proposed siting of the building would be visually prominent. He said that at 8 metres high and 24 metres long the building would have a significant impact on the character and appearance on the AONB.
- On 17 March 2020 the Council issued an initial decision stating that prior approval was required for the siting of the building. The applicant was required to submit further information to justify the proposed siting, including alternative locations that had been considered. The officer noted the following objections received from 12 neighbours, including Mr X:
- visual impact on the AONB
- highways safety
- not necessary
- existing buildings could be used
- site not acceptable
- location is within 25 metres of a trunk road
- The officer also noted objections from the Parish Council and advisory comments from a planning officer of a local advisory committee. Both raised concerns about the siting and design of the proposed building in an AONB.
- The initial decision stated the site was located outside flood zones 2 and 3 but also noted that flood impact was not an assessment required under Schedule 2, Part 6, Class A of the Order. The officer said the development would not be located within 25 metres of a trunk road.
- The Council also advised the applicant that on submission of further information the Order required that they display a site notice on or near the land of the proposed development. On 31 March 2020 the applicant put up a site notice and provided photographic evidence to the Council. The notice said:
“I give notice that further details relating to the siting of the building were required in order for the Local Planning Authority to assess whether the proposed location is the most appropriate location within the farm holding for the proposed development.
Further information has been submitted to Ashford Borough Council by letter on the 25 March 2020 and by letter dated 31 March 2020 to justify the proposed siting of the building, including alternative locations within the [area] that have been considered by the applicant”.
- On 30 June 2020 the Council issued a second decision stating prior approval was given for the siting, design, external appearance and means of construction of the proposed building. The planning officer’s report provides details of discussions with the applicants’ agent about alternative locations which included issues around restricted access for agriculture vehicles. The Council agreed there were no suitable alternative locations for the proposed building that would have less visual impact on the AONB. To mitigate the impact, the applicant agreed to reduce the height of the building by two metres to six metres in total and plant native tress and hedges to soften the visual impact of the building in the AONB. The officer concluded that, on balance the “rural and economic benefits of the proposed building outweigh the visual impact caused to the openness and character of the AONB”
Mr X’s complaint
- Mr X complained to the Council on 30 June 2020 and said no site notice was displayed; the Council had failed to adhere to timescales; documents were not available to view on the Council’s website before the decision and objectors were not given the opportunity to further comment on the proposal and the issue of site flooding had not been addressed further. Mr X said the Council had not properly explained or justified its decision and failed to correctly consider vehicle access constraints for alternative locations.
- The Council’s replies to Mr X’s complaint were comprehensive. Mr X remained dissatisfied and complained to the Ombudsman. Mr X says he can see the constructed building from all rooms in his property and the noise of construction was clearly audible. Mr X explained that he has suffered distress and uncertainty and incurred financial costs during the process. Mr X also says that he will have to consider relocating or incur significant costs to mitigate the impact on his amenities.
- The Ombudsman when dealing with complaints about the granting of planning permission cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. My role is to determine whether there has been administrative fault in the way the decision was made.
- The statutory requirements relating to prior approval are much less prescriptive than those relating to planning applications. This is deliberate as prior approval is a light touch process which applies where the principle of development has already been established.
- The Council has already acknowledged the two letters submitted by the agent on behalf of the applicant were not accessible on its website, due to an administrative error. The Council has also acknowledged that there was a delay uploading the site notice to the Council’s website, due to Covid-19 pandemic. The applicant provided evidence that the site notice was displayed, and the Council has responded to Mr X’s concerns in its complaint response. I find no evidence of further fault by the Council. Mr X was able to raise objections to the proposal and these were considered by the Council.
- Mr X also complained about the lack of communication and delay in responding to emails. The Council acknowledged that Mr X’s partner requested further information about the application, but this was not provided. The Council apologised and explained that due to the volume of emails it receives it is not possible for officers to reply to all consultees as part of the application process. I am satisfied with the Council’s apology here.
- It is Mr X’s view that the Council failed to consult with the local community about the application. He also says the Council limited his ability to challenge the second decision as the officer’s assessment sheet was not published until 17 July 2020. There is no statutory requirement for the Council to have publicised the application or consult local residents to this form of prior approval application. This meant the Council could not consider the development’s impact on Mr X’s amenities in the same way that it would when considering a full planning application. However, the objections received from Mr X and other parties were acknowledged and responded to in the officer’s reports and the Council’s response to Mr X’s complaint. I find no fault by the Council.
- In terms of whether the Council should have considered the flooding impact further, I do not find fault because the planning officer did not treat this as a full planning application. As this was a prior approval application, the officer was not required to consider factors other than those set out in Schedule 2, Part 6, Class A of the Order. The officer clearly explained this in both reports and also clarified that the site was located in flood zone 1. This indicates a less than 0.1 per cent chance of flooding occurring each year.
- Mr X says the Council failed to explain the economic benefits of the development. I agree that the Council did not expand on its comment that “rural and economic benefits of the proposed building outweigh the visual impact caused to the openness and character of the AONB” However, I do not consider this to be fault. The officers report said the proposed building was reasonably necessary for agriculture and the principle of development had already been established. This was not a full planning application, and the objective here was to consider the visual impact of the development upon the landscape.
- Mr X also says the Council failed to explain why they did not consider the access route created by the infilling of a drainage ditch to identified alternative sites. But as the Council has explained the infilling of the drainage ditch for the access would not have altered the assessment on the visual impact of the building. The objective of this application was to consider the visual impact of the development upon the landscape.
- The evidence shows the Council considered the impact on the AONB as this was the reasons for its initial decision, that prior approval was required. The Council discussed alternative locations with the applicant but considered they were not suitable. This was a decision it was entitled to make. The Council then made two recommendations to improve the landscape and reduce the visual impact of the building on the AONB. I am satisfied the Council had enough relevant information to reach a sound decision including about the site being in an AONB and I do not find the Council at fault here.
- Mr X had the opportunity to comment on the Ombudsman’s draft decision on this case. He raised similar concerns about the infilling of the ditch; site notice; information available on the Council’s website; communication and obstruction to the complaints process. The Council’s objective with this application was to consider the location in terms of the visual impact of the development upon the landscape and it has evidenced that it has done so. The Council has considered the relevant issues and followed the decision making we would expect. I also do not consider Mr X has been caused significant personal injustice by what has happened. This is because there is a significant separation distance between his home and the approved building.
- I appreciate that Mr X disagrees with the Council’s decision and considers the Council was at fault. However, as explained, without evidence of procedural fault in the way the Council made its decision, my investigation cannot consider the merits of the decisions reached or the professional judgement of the officers.
- I do not find fault with the Council’s handling of this case. The Council followed due process in considering the application on the basis of the visual impact of the building in an AONB. and I find no evidence that the faults identified in paragraph 23 contributed to any personal injustice to Mr X.
I have found no evidence of fault by the Council and I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman