Summary: Ms X complained about the Council’s handling of planning applications for development that she said adversely affected her home. We found there were faults by the Council, but they did not affect its planning decisions. The Council’s offered apology and £100 redress therefore suitably addressed any injustice to Ms X.

The complaint

1. Ms X complained about the Council’s handling of a planning application for development, and linked parking provision, near her home saying it:

• did not correctly publicise the application;
• did not properly consider the impact of the development on visual and residential amenities and on safety; and
• failed to enforce an earlier planning permission for the site.

Ms X also said the Council gave her wrong information in responding to both her freedom of information request and stage 1 complaint.

2. Ms X said what happened put her to much time and trouble; adversely affected her home; caused emotional distress; and undermined her trust in the Council. Ms X wanted the Council to apologise; review on site safety; further control the site, for example, by restricting its hours of use and providing more screening. Ms X also wanted the Council to review its procedures for publicising planning applications and to consider paying her compensation.

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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 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)
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:

• considered Ms X’s written complaint and supporting information;
• talked to Ms X about the complaint;
• considered planning information about the planning applications and development available on the Council’s website;
• asked for and considered the Council’s comments and supporting information about the complaint;
• shared the Council’s response to the complaint with Ms X; and
• shared a draft of this statement with Ms X and the Council and considered any comments received before making a final decision.

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What I found

Background: deciding planning applications

7. Most development, which includes building and other works and a material change in the use of land, needs planning permission from the local council. The developer completes the application form and provides any necessary supporting information to the Council. That information must include a location plan identifying the application site, which plan must have a scale and show ‘north’. The Government’s Planning Practice Guidance (PPG) says the plan should show the application site edged red with any other land owned by the developer edged blue.
8. Before deciding a planning application, the council must publicise it so people can comment on the proposed development. Developers may change their applications before the council’s decision. Councils may but do not have to publicise such changes. The PPG says councils should ‘decide whether further publicity is necessary in the interests of fairness’. And, whether not publicising changes would mean people ‘entitled to be consulted would be deprived of the opportunity to make comments they may have wanted to make on the amended application’.
9. Council’s must decide each planning application on its own merits and in line with their development plan policies unless material considerations indicate otherwise. Material considerations concern the use and development of land in the public interest, and not private considerations such as the developer’s conduct or property prices. Material considerations include issues such as overlooking, traffic generation and noise. Peoples’ comments on planning and land use issues are also material considerations. Council’s must take account of such comments but do not have to agree with them. Councils must have special regard to the desirability of preserving heritage assets (listed buildings and conservation areas) when deciding planning applications.
10. Planning policies may pull in different directions, for example, promoting employment land and protecting existing amenities. While councils must take account of relevant policies and other material planning issues, they may give competing considerations different weight. In practice, this means councils can grant planning permission for development that does not meet all relevant planning policies.
11. A planning case officer will usually prepare a report, assessing proposed development against relevant development plan policies and other material planning considerations. The report will draw on all the information about the development and usually ends with a recommendation to grant or refuse planning permission. A senior planning officer authorised by their council to decide applications will consider most reports. The senior officer does not have to accept the report recommendation but may give different weight to the planning issues when deciding an application.
12. Normally, councils grant planning permission if they consider the proposed development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal. Most planning permissions include conditions that control the implementation and use of the approved development. Councils must give reasons for each condition they impose, and developers may apply (and appeal) to change and remove planning conditions.

13. When granting planning permission, councils sometimes complete a ‘planning obligation’ or ‘section 106 agreement’ with the developer. These are legal agreements whose contents should be directly, fairly and reasonably related to the development and necessary to make it acceptable on planning grounds. An agreement may require the developer to carry out or fund works and or services outside the development site. For example, a supermarket development may increase traffic movements meaning a nearby road junction needs improving. Or a housing development may mean the local primary school needs another classroom. Where the developer agrees to make a payment, the council will also agree how and when to use the money to provide the off-site works and or services. As a legally binding contract, the parties to a completed section 106 agreement can enforce its compliance.

14. If a council refuses planning permission, the developer has a right to appeal to the Planning Inspectorate (PINs) against that decision. The law says a council must state ‘clearly and precisely its full reasons for refusing permission.’ This will help a developer decide whether to appeal the decision and or if changes to the proposals may overcome the refusal reason(s). The council’s decision notice must also explain how it has worked with the developer “in a positive and proactive manner” to seek solutions to problems arising from its consideration of the application.

Background: planning enforcement

15. Carrying out development without the necessary planning permission is a breach of planning control as is a failure to comply with a permission and its conditions. Councils should investigate reported breaches, but they do not have to act against every breach they find. The Government’s National Planning Policy Framework (NPPF) says councils should act proportionately in responding to suspected breaches. Councils often try, at first, to resolve breaches by negotiation.
16. If a council decides to use its enforcement powers, it usually has a choice in how to act. If a council wants to take formal enforcement action, it must consider the unauthorised development against relevant planning policies and any other material planning considerations. It must then be satisfied that issuing an enforcement notice is “expedient”. People may appeal to PINs against an enforcement notice.
17. The Council has an Enforcement Plan (‘the Plan’), which refers to and reflects the NPPF and explains its enforcement priorities and procedures. The Plan also sets out how the Council will monitor enforcement cases until they are resolved and closed.

A summary of what happened

18. The Council granted conditional planning permission for the further development of land and buildings already in business use. The development included changes to existing private and public parking provision on the business site. It also extended the business site to adjoining land, which land was to be used for car parking. (In this statement, this planning permission is “the Car Park Permission”.)
19. Conditions on the Car Park Permission referred to the adjoining land that was to be a car park as ‘the temporary car park’. The Council had identified the temporary car park land as of strategic significance in providing a public transport scheme in line with policies in its local development plan.
20. One planning condition said the developer had to screen the road boundary of the temporary car park land (‘the Boundary’) before using it for parking. Another condition said use of the temporary car park for parking had to stop within three months of the Council confirming it needed the land for public purposes. A further condition set out what should happen if the Council confirmed the temporary car park land was no longer needed for a public transport scheme. That condition said the developer then had three months to send the Council details for a wall along the Boundary. And the developer had to build the wall within three months of the Council approving the details. The condition was to protect the historic environment of the local conservation area.
21. The developer and the Council also completed a section 106 agreement, which among other matters, dealt with the temporary car park land. The agreement set out what should happen to the land if the public transport scheme went ahead. It also set out what would happen after seven years or, if earlier, the Council confirmed the scheme was not going ahead. Essentially, after seven years, the developer had to secure approval to, and build, the wall referred to in the planning condition. However, if the developer failed to build the wall, the agreement provided for it to pay the Council so it could either:

• build the wall itself; or
• at its “complete discretion”, fund other local public improvements.

22. About ten years later, significant development took place on the business site. The temporary car park became a compound to store materials for the development with an access in the Boundary onto the adjacent road (‘the Road’).
23. The following year, Ms X came to live near the temporary car park land in a property that was also accessed from the Road.
24. The year after that, the Council received a planning application for a change of use of part of a building on the business site (‘the Unit’). The application plans showed the application site, edged red, as the Unit. The plans also showed the rest of the business site, including the temporary car park, edged blue. The business site management had allocated car park spaces on the site to the Unit, including all the temporary car park spaces. The Unit, in part, fronted a road on the opposite side of the business site to the Road and the temporary car park.
25. The Council publicised the application by placing a notice in a local newspaper and putting up a site notice on the road adjacent to the Unit.
26. The developer then sent the Council a new plan. The new plan extended the application site edged red to cover those parts of the business site that included the car park spaces allocated to the Unit. This meant the application site now included the temporary car park. The Council did not publicise the new plan.
27. A Council officer prepared a report assessing the application against planning policies. The report listed earlier planning applications affecting the business site. The list did not list the Car Park Permission. However, other applications in the list referred to the Car Park Permission. The report also identified the main issues for deciding the application, which included:

• road safety and parking; and
• impact on local character and residential amenity.

28. The report said the developer’s new plan showed car park spaces for the development exceeded those needed to meet the Council’s car park policies. And sufficient car park spaces remained available to meet the needs of other occupiers and the public using the business site. The report found that minor changes to the Unit’s outside would not impact on the character of the area. And the Unit was not near peoples’ homes and so would not impact existing residential amenities. Overall, the report recommended, and the Council granted, planning permission for the change of use. (In this statement, this planning permission is “the Use Permission”.)
29. A few months later the Council received a planning application to build a wall along the Boundary. The application also sought planning permission for a gated access in the Boundary onto the Road. The Council publicised the application, including placing a notice on the Road. Ms X objected to the application. Ms X’s key concerns were the development’s adverse impacts on: neighbouring properties from noise and disturbance; highway safety; and the conservation area and nearby listed building. Ms X also referred to earlier planning permissions on the business site saying she had had no opportunity to comment on the Use Permission. Ms X also raised non-compliance with conditions (see paragraph 20) on the Car Park Permission.
30. A Council officer prepared a report assessing the application against planning policies. The report listed earlier planning applications affecting the business site, including the Car Park and Use Permissions. The report summarised peoples’ objections, including those made by Ms X. The report also identified the main issues for deciding the application as visual amenity; residential amenity; and highways.
31. The report found the wall would enhance the visual amenity of the site and street view in the conservation area and improve the setting of a nearby listed building. The report recognised traffic movements on the Road would increase with people driving in and out of the temporary car park. But said this would not badly impact nearby residents as they were a good distance from the site and the wall would provide a more robust screen. The report also recommended a planning condition to control use of the gated access. The condition would need the gate to be:

• kept open during the day to prevent noise from its repeated opening and closing; and
• locked at night to prevent access to the temporary car park from the Road overnight and before 6:00am.

The report also found no highway safety issues as suitable sightlines existed at the access. The report recommended, and the Council granted, planning permission for the wall and gate. (In this statement, this planning permission is “the Wall Permission”.)

32. Ms X complained to the Council about the three planning permissions and, later, about errors its first reply. Remaining dissatisfied with the Council’s final complaint response, Ms X brought her concerns to the Ombudsman.

Consideration

The Car Park Permission

33. Ms X said the Council had failed to ensure the developer complied with conditions on the Car Park Permission about the Boundary. The conditions, which included screening, were to improve visual amenities and protect the conservation area (see paragraph 20). Ms X said delayed compliance with the conditions caused her injustice. And, in granting the Use and Wall Permissions, it was no longer possible to secure compliance.
34. The Council accepted the developer had neither built a wall or paid it to either build that wall or provide other local improvements. And it had not written to the developer to confirm whether the land was needed for public transport purposes. The Council confirmed it still wanted to safeguard the land for public transport purposes. But it agreed there was non-compliance with the Car Park Permission and linked legal agreement.
35. However, the Council said the Car Park Permission did not prevent the grant of planning permission for other development on the business site, including on the temporary car park land. And, when Ms X raised non-compliance with conditions on the Car Park Permission (see paragraph 29), it asked its Planning Compliance Team to investigate. The Wall Permission then provided for a wall on the Boundary. The Council said it continued to monitor the Wall Permission, which it expected to be fully complete during 2022.
36. Planning enforcement action is largely reactive. That is, it generally relies on people reporting possible breaches of planning control to their council. Here, I saw no evidence that, before Ms X’s complaint, the Council had received a report about a breach of boundary conditions on the Car Park Permission. Once Ms X brought the breach to the Council’s attention it took appropriate action in opening an enforcement investigation. That investigation led to the Wall Permission, which provided a wall, albeit with a gated access, along the Boundary. The Council’s enforcement case remained open so it could monitor the site until full implementation of the Wall Permission.
37. The Council also failed to monitor the section 106 agreement linked to the Car Park Permission. This was a matter for the Council and in its control. I therefore found the failure to act after seven years was fault. However, the agreement did not guarantee a wall along the Boundary. The Council could have secured a payment and used it to fund other local improvements (see paragraph 21). But the Council’s responses to Ms X’s complaint suggest it probably would have preferred a wall rather than other local public improvements.
38. Ms X described the temporary car park as visually “atrocious”. It had fallen into disuse when the Unit became empty and before the Council granted the Use Permission. However, the evidence suggested the appearance of the temporary car park had not changed significantly since its use as a storage compound (see paragraph 22). And Ms X moved to live near the temporary car park after its use as a storage compound. When Ms X raised non-compliance with conditions on the Car Park Permission, the Council dealt with the breach and apologised for not acting sooner. I therefore found the Council’s actions suitably addressed this part of Ms X’s complaint.
39. The Council also recognised that its section 106 monitoring procedures did not deal with non-financial developer obligations. The Council explained how it had now addressed this and would monitor future agreements with obligations needing ‘action’ as well as those for financial payments by developers. I therefore found no need now to recommend any service improvements.

The Use Permission

40. Ms X said the Council had not correctly publicised the application for the Use Permission after the plans changed to show car park spaces allocated to the Unit. Ms X also said the Council had then failed to consider the residential amenities of people, like herself, whose homes were near the temporary car park. Ms X said these failures were particularly troubling as the Use Permission meant the temporary car park was now permanent and in use 24 hours a day. So, being unable to comment on the application had disadvantaged her and others living near the temporary car park. Ms X also raised the Council’s failure to consider non-compliance with the Car Park Permission in deciding to grant the Use Permission.
41. The Council said the developer’s changed plan for the Use application clarified which car park spaces were available for use by the Unit. It did not consider the plans raised new material planning matters and so had not publicised them. However, in responding to Ms X, the Council accepted it would have been good practice to have displayed a site notice on the Road next to the temporary car park. The Council apologised to Ms X for not erecting such a notice for the Use application. It also said it would in future place a notice on the Road when publicising further applications.
42. The developer’s new plan extended the red edged application site to include car park spaces allocated to the Unit. To be fair the Council ought reasonably have further publicised the Use application and placed a site notice along the Road near the Boundary (see paragraph 8). So, I found fault here.
43. Ms X said the lack of such a site notice disadvantaged her as she lost the opportunity to comment on the Use application. Ms X’s key concerns about the Use application were that it changed the car park from temporary to permanent and allowed its use 24 hours a day. I have no doubt Ms X would have objected on those grounds if the Council had placed, and she had seen, a site notice on the Boundary.
44. The Council’s report on the Use application identified the business site, including the Unit, to be in a town centre location. The report found the Use in line with planning policies about appropriate town centre uses. The report also found the Use application acceptable on highway safety and parking grounds. The report did not expressly address the impact of the Use on residential amenities of people, like Ms X, that lived along the Road. In responding to us, the Council said, in land use terms, there was little difference in the former use of the Unit and the Use. And, in granting earlier planning permissions affecting the temporary car park, it had not placed any limits on its hours of use. It did not therefore consider placing a condition on the Use Permission to limit use of the temporary car park was justified.
45. The Use application did not propose any material planning change or other development on the temporary car park land. That is, before and after the grant of the Use Permission, the land had planning permission for and was laid out as car park. The Car Park Permission had described the added parking spaces as the “temporary” car park as the land might be needed for an alternative, public, use.
46. When the Council received the Use application, the planning position was the ‘temporary’ car park would continue (with a wall boundary). I saw no evidence there were planning and land use grounds for the Council to have stopped the ‘temporary’ car park use in deciding the Use application.
47. I also saw no evidence that any planning permission before the Use application restricted the hours of use of the temporary car park. The Council would have needed sustainable planning and land use grounds to have imposed limits on the hours of use for the temporary car park when granting the Use Permission. The Council says there were no such grounds. I saw no evidence to suggest the Council’s view was without merit and unsustainable.
48. I recognised that people might have stopped parking regularly and frequently in the temporary car park. However, that did not mean it had ceased, for planning purposes, to be 24-hour temporary car park. Overall, I saw no grounds to suggest that if the Council had received objections to the continued use of the temporary car park, it would have reached a different planning decision. I therefore found the Council’s apology suitably and reasonably addressed the injustice caused to Ms X from her lost opportunity to comment.
49. The Council had committed to addressing the underlying fault by displaying notices on the Road near the Boundary when dealing with future applications. I therefore saw no reason now to recommend any service improvements.

The Wall Permission

50. Ms X said the Council only assessed the Wall application proposals against current site conditions and not taking account of the Car Park Permission. The Car Park Permission provided for a wall along the entire temporary car park road frontage whereas the Wall application included a large gate.
51. The Council said it assessed the visual impact of the Wall development on the conservation area and the setting of the nearby listed building, which impacts it found acceptable. It has also assessed the proposal against residential amenities and found no harmful impacts. Similarly, it had consulted its highway officers and they had no safety concerns about the Wall development.
52. The Council must decide each planning application on its own merits. The evidence I saw showed the Council assessed the Wall application against relevant planning policies and other material considerations, taking account of Ms X’s representations (see paragraph 29). That was what the Council needed to do (see paragraph 9). Having identified relevant planning issues, it was entitled to balance and weigh them and reach its own view on whether the Wall application was acceptable on planning grounds. The Council’s report was proportionate and I found no fault in how it reached its decision to grant the Wall Permission. That Ms X might disagree with the Council’s assessment and findings on the Wall application was not a matter that I might question without evidence of fault (see paragraph 3).

Communication errors

53. When the Council first replied to Ms X’s complaint, it confused the Use and Wall Permissions. The Council also said a condition on the Wall Permission prevented overnight use of the temporary car park. The Council later admitted this was wrong as the condition only prevented use of the access (see paragraph 31). There were other access points for the business site that meant people could drive to and use the temporary car park overnight.
54. The Council’s errors were regrettable, and it apologised to Ms X for them. I found the Council’s apology suitably addressed any distress and frustration its communication errors might have caused Ms X.

The Council’s offer to resolve the complaint

55. In responding to the Ombudsman, the Council offered Ms X a further apology for not enforcing the Car Park Permission conditions and monitoring the section 106 agreement. The Council did not consider these failures harmed residential amenities. But the delay in securing a wall along the Boundary had harmed the streetscene and conservation area. The Council also offered Ms X financial redress of £100 for her time and trouble in pursuing her complaint.
56. While I found some fault, I also found the apologies already given by the Council had reasonably and proportionately addressed any resulting injustice to Ms X. I found no evidence to suggest that any faults I identified in this statement were likely to have affected any of the Council’s planning decisions. We consider that people making complaints do so in the knowledge it will put them to time and trouble. So, it is only where a council’s handling of a complaint leads to avoidable time and trouble that we might recommend financial redress. I therefore found no grounds to recommend any greater remedy than that now proposed by the Council.

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Agreed action

57. Within 20 working days of this decision statement, the Council will:

• send Ms X a further written apology for its failure to enforce planning conditions and the section 106 agreement for the Car Park Permission; and
• pay Ms X £100 financial redress in recognition of her avoidable time and trouble in pursuing her complaint.

58. The Council also agreed to send the Ombudsman evidence it had complied with paragraph 57 within 30 working days of this decision statement.

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Final decision

59. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 57 and 58.

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Investigator's decision on behalf of the Ombudsman