Summary: the complainants Mr X and Y & Co complained the Council failed to properly consider a planning application to develop land near their property. They believed this would cause a loss of privacy, security and adversely impact on Y & Co’s business. The Council said it had properly considered the application at two committee meetings with the complainants speaking at those meetings. We found the Council acted without fault.

The complaint

1. The complainants, whom I shall refer to as Mr X, and a nearby business Y & Co whom he represents complain the Council failed to properly consider a planning application for a development near Mr X’s home and Y & Co’s business. They say the Council did not fully consider all material planning considerations. They say the Council wrongly accepted an amended noise assessment from the applicant when they believe it should have insisted on a fresh assessment to comply with the aims of the outline planning permission.
2. Mr X and Y & Co say this has caused them to lose faith in the probity of the planning decision and resulted in a permission which if considered properly the Council would have refused. They say the approved development will have an avoidable significant detrimental impact on Mr X’s and other residents’ homes and may restrict Y & Co’s business.

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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 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)
5. If 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. In considering this complaint I have:
• Spoken to Mr X, and reviewed the information presented with his complaint;
• Put enquiries to the Council and read the information sent in response;
• Researched all relevant law, guidance, and policy;
• Shared with Mr X and the Council my draft decision and reflected on the comments received before making this my final decision.

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What I found

The law, policy, and guidance

7. Outline planning permission settles the acceptability of development, subject to agreement to details or ‘reserved matters’ through another application.
8. Reserved matters may be issues about access, appearance, landscaping, layout, and scale of the development. However, an outline planning permission does not restrict a full planning application because it is not a reserved matters application.
9. Councils must decide all planning applications in accordance with the development plan unless material considerations suggest otherwise. They must also consider the guidance in the National Planning Policy Framework (NPPF).
10. Paragraph 182, NPPF says new development should not result in ‘unreasonable restrictions’ on business set up before the approval of the development. Where the business may have a ‘significant adverse effect’ on new development the applicant should provide suitable mitigation before the development has been completed.
11. Material considerations concern the use and development of land in the public interest, and not private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
12. Decisions by the Planning Inspectorate and previous decisions on a site are material planning considerations.
13. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
14. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities).
15. It is for the decision maker to decide what weight to give to any material consideration in deciding a planning application.

What happened

16. The Local Plan adopted in April 2019 shows the land to the rear of Mr X’s home and near to Y & Co’s business as ‘countryside’. Under the previous Local Plan, the land had no designated land use and lay outside areas designated for development.
17. In March 2019, a month before the Council adopted the new Local Plan, the Council granted outline planning permission for a development of homes on this land. Before granting outline planning permission the Council considered a noise assessment presented by the applicant to address any conflict between homes and noise emanating from Y & Co’s site, and traffic from a major route. On granting outline planning permission, the Council imposed a condition saying any application to approve reserved matters should include a new noise assessment.
18. In February 2019, the Council received an application for planning permission to build eight more homes than the outline planning permission allowed. The Council decided it must consider this a new full application and not a ‘reserved matters’ application. This needed full publicity and consultation with the statutory consultees such as service providers, and the Parish Council. The outline planning permission, the Council says had already established the principle of development on this site. Therefore, the Council says it could not refuse it on grounds the site lay in the countryside. It could only refuse permission if there were design or other material planning considerations to support that refusal.
19. The Council publicised the application and Mr X, Y & Co, the Parish Council, local Member of Parliament, and others presented objections to the plans.
20. Within the proposals the applicant suggested creating what they called an ‘easement’ which I shall refer to as a lane. The proposed lane would run along the back of Mr X’s home and those of his neighbours. The purpose of the 2.1m lane is to allow access to undertake maintenance as needed of a dyke wall. The applicant did not propose gating the lane. Mr X and others objected because they believed it would encourage fly tipping, anti-social behaviour, and result in a loss of privacy and security. They feared the lane would lack oversight or any effective control to stop or prevent anti-social behaviour such as fly tipping.
21. Y & Co as a long-standing commercial business, objected because they deal with heavy machinery which causes noise and disturbance. They foresaw complaints from homes built close by which if upheld by the Council as the environment protection authority may result in limits on their business capacity. To address these noise concerns the applicant suggested erecting a noise barrier between the new homes and Y & Co.
22. The Council’s officers referred the decision on the application to the planning committee. The Committee first considered the application in June 2019.

Planning committee meeting June 2019

23. The Council received objections from Mr X and over twenty other residents. Y& Co also objected. The Parish Council told the Council it should refuse the planning application because it did not comply with the local plan. The Parish Council said it infringed an agreement to provide a ‘buffer zone’ between residential areas and industrial uses. The Parish Council said it had concerns that if owners of new homes built close to Y& Co’s business complained, limiting Y & Co’s business, this may cause a loss of employment within the area. The Police said in response to the consultation they preferred a locked gate at the entrance to the lane on security grounds.
24. The case officer summarised the objections in his report. Objections included overdevelopment, and the impact on Y & Co. Plus the effect on parking, the capacity of sewage schemes, schools, and GP provision. Also, objections listed noise, loss of privacy and reduced security for residents caused by the lane. Y & Co presented an acoustic assessment with its objections. Some objectors said the Council’s own housing land availability assessment in April 2017 declared the site to be ‘unsuitable and undevelopable’.
25. The case officer’s report records the applicant’s noise assessor recommended installing an acoustic barrier to reduce noise in the gardens of the new homes and other acoustic measures to protect the homes. The case officer’s report refers to Paragraph 182 of the NPPF. This says development should not limit existing businesses. The case officer recommended approval because the noise assessment presented by the applicant met with approval by the environment protection team. Therefore, the case officer believed the application met the objectives of Paragraph 182 and would not limit Y & Co’s business.
26. The Council’s Environmental Protection officers offered no objections and said they accepted the assessment by the acoustic consultants.
27. The minutes say the Committee decided after debating the application to defer a decision to a future meeting. This allowed officers to negotiate with the applicant amendments to address councillors’ concerns. These included: the open lane and upkeep of the dyke, an acoustic barrier to protect homes from Y & Co’s business and distribution of affordable homes.
28. On the proposed lane the case officer says any loss of privacy or other issues would ‘not be so significant to warrant a refusal on amenity grounds.’ The case officer also considered the distance between existing properties and the new homes to be acceptable in planning terms. The applicant offered to include a security gate if the Committee wanted that.
29. In July 2019, the Council’s officers met with the developer to discuss the Committee’s concerns. This is usual practice and meets the Council’s duty to help developer’s present acceptable plans. Following the meeting the applicant sent a written response to the concerns raised.

Planning committee meeting November 2019

30. The Committee considered the application afresh at its November 2019 meeting. The case officer’s report referred to the applicant’s written response to the Committee’s concerns. Some members of the Committee had not previously considered the application in June 2019. The applicant had now withdrawn his offer of a security gate for the lane. The case officer’s report does not refer to this.
31. Mr X and Y & Co’s representative spoke at the July and November 2019 meeting. The Council also invited the Environment Protection Officer to attend the Committee to answer any questions from Councillors about noise and the conflict with Y & Co’s site.
32. The case officer told the Committee the Council had received an update to the noise assessment presented with the outline planning permission. The Council routinely asks for noise impact assessments for applications in this locality because of concerns about noise from traffic and commercial uses in the area. The Council did not insist on a new noise assessment to reflect the increased size of the development and final layout. The Council says this followed a Planning Inspectorate decision on a similar development. In that case, the Planning Inspectorate said the noise assessment presented at the outline planning application settled the principle of residential development having considered the likely noise issues. The Planning Inspectorate said conditions imposed on a detailed planning permission could mitigate any further noise concerns.
33. The applicant proposed the use of acoustic trickle vents and through wall vents in the new homes to reduce any noise impact. The applicant and Environmental Protection Officer considered the distance between the homes and Y & Co’s business enough with the noise barrier to reduce any noise to within acceptable levels.
34. The case officer’s report said the Council had taken legal counsel’s advice about the impact of the residential development on Y & Co and the safety concerns raised. The advice confirmed the Council could grant planning permission.
35. In the report the case officer summarises objections from the local Member of Parliament, Y & Co, and the public. In Y & Co’s objections the company referred to their use of high-risk machinery. They referred to the industry guide on good practice recommending a safety zone plus Y & Co’s own noise survey. Y & Co say when testing machinery there is a collapse zone which they say means the Council should avoid developers building any homes within 30m of their boundary. In a previous application the applicants had accepted the need to avoid building within the risk zone. Y & Co point out the applicant’s noise report only considered noise from their existing yard, not the company’s latest extra area which is 40m closer to the proposed homes.
36. The case officer attached the report presented to the June 2019 meeting to the November 2019 report setting out objections. The Council says the Committee considered the proposed acoustic barrier, noise vents and alignment of the houses would be enough to address the noise issue.
37. The Council granted planning permission at its November 2019 meeting, with conditions attached. The conditions attached to the planning permission constrain the applicant and developer to building the development strictly as set out in the permission. This includes construction of the acoustic barrier adjacent to Y & Co’s property as set out in the noise assessment of September 2019.

Noise assessments

38. Both Mr X and Y & Co believe the Council should have refused the planning application on several grounds including the likely impact of noise from Y &Co's business. The absence of a new noise assessment they believe show the applicant and Council officers failed to provide the Planning Committee with all relevant information on which to decide the application.
39. The Council says the site was subject to a noise assessment in October 2016 and September 2019 as part of two planning applications. A third noise assessment in July 2017 undertaken for Y & Co’s application for a change of use on their land gave the Council further information. On granting planning permission in November 2019, the Council’s conditions included carrying out the approved plans in line with the environmental noise assessment conducted in September 2019.
40. Following the grant of planning permission, the Council’s Environment Protection Officer reviewed these assessments. He visited the site and considered the representations from third parties including Mr X and Y & Co. The Council’s Environmental Protection Officer decided in the exercise of his professional judgement the noise assessments showed no basis on which he could defend an appeal against a refusal planning permission. In his view the conditions attached would control any noise to within acceptable levels. The Planning officer undertook a similar review of the planning issues before issuing the permission.

Analysis – was there fault leading to injustice?

41. My role is to examine whether the Council followed the correct procedure and had before it all relevant information when deciding the planning application for this site. If the Council had before it and considered all relevant information and material planning considerations, then I cannot challenge the merits of the decision reached. If it did not, then I must decide if any failure led to a different decision from the one it would otherwise have made. Where I find fault, I must consider what impact this had on Mr X and how the Council should put that right.
42. The Council should consider all objections and decide if they warrant a refusal or imposing a condition. Through studying all the information gathered I have examined how the Council considered the objections expressed by residents and others. I shall not go though all of them here. Two issues provide examples of the Council’s consideration.
43. The Police recommended putting a security gate on the lane. Residents agreed this would provide more security and reduce the risk of fly tipping or anti-social behaviour. The applicant even offered, at first, to erect a gate, but later withdrew that offer. The Council decided the lane did not need a gate because it did not believe an open lane would significantly impact on residents. They disagreed. However, the Council had before them the Police proposal, residents’ objections to the open lane and so had before them all relevant information. I propose, therefore, finding the Council decided the issue properly and without fault.
44. The second example is how the Council considered the need for a new noise assessment, and the impact of new homes on Y & Co’s business. The Planning Inspector’s view on whether a noise assessment at outline planning permission is enough to decide a later application is a material consideration. Before deciding the application, the Council considered the noise assessment from September 2019 and decided it had enough information on noise to decide the application. That is a judgement call for the officers and the Committee to take. A further noise assessment may have resulted in a different decision we will never know.
45. The Council considered the proposed noise reduction measures such as the noise barrier and vents in the new homes. It decided these provided enough reduction in the likely noise from Y & Co’s business. This hopefully would mean a reduction in complaints from new residents. The Council had before it the applicant’s proposals, three noise assessments, the views of the residents, consultees, and Y & Co’s representations. It had therefore all relevant information before it when deciding the application. Councillors decided on that information to grant planning permission. In doing so I find they acted without fault. That means I cannot challenge the merits of the decision or view taken.
46. Y & Co told the Council about the need for a safety zone to protect residents from accidental collapse of large machinery tested at the site. The Council took legal advice on the issue. Councillors had this information when they decided to grant permission, so again I find they had before them all relevant information.
47. Following its decision, the Council received complaints and objections to it. The Council asked its Environmental Protection officer to review all the noise assessments and considered them against the objections received. The officer compared all the information and confirmed the Council’s view. I find this makes it unlikely any further noise assessments would have resulted in a different decision.

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Final decision

48. In completing my investigation, I find the Council acted without fault.

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Investigator's decision on behalf of the Ombudsman