Summary: Mr X complains about the Council’s decision to approve a planning application for a development at a site near to Ms Y’s property causing distress and impact onto her amenity. We found no evidence of fault by the Council in the way it considered the planning application. We found the fault in the way the Council responded to Ms Y’s complaints about the matter. We have suggested a suitable remedy in this case and so have completed our investigation.

The complaint

1. Mr X complains for Ms Y the Council has not properly considered a planning application for new industrial units on a site next to her listed building. Ms Y considers the plans were wrong and the Council failed to consider the impact onto her and her property. Mr X also complains the Council failed to respond to Ms Y’s letters of complaint about the matter causing her distress and time and trouble in pursuing her concerns.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with an organisation’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

4. I have read the papers submitted by Mr X and spoken to him about the complaint I considered the Council’s comments on the complaint and the supporting documents it provided.
5. Mr X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

6. Ms Y’s home is a listed building and next to an industrial site with a yard and workshops. The Council received an application to build more workshops on site and a wash down unit for vehicles. The Council carried out consultation on the application, erected a site notice and told neighbours, including Ms Y of the proposal.
7. Ms Y sent objections to the application and confirmed she was aware of the industrial site when she bought the property. But because of increasing disturbance she built a summer house at the bottom of her garden away from site activities to help with her medical condition. Ms Y said the proposal to extend the workshops towards her summer house would increase the impact of activities, noise, and pollution from the site on to her.
8. Council planning officers considered the application and prepared a planning report on the proposal. The report outlined the proposal, planning policies and consultations received. The report set out an assessment of the proposal. It considered the proposal was supported by the Local Plan to allow extension to businesses subject to material considerations. The report looked at the impact on to residential amenity. It noted objections from neighbours about light, noise, and impact onto listed buildings.
9. The Council’s heritage officer objected to the scheme and considered it caused harm to a listed building (although it was less than ‘substantial harm’). The Council’s environmental health service initially objected to the proposal, but the applicant submitted a noise assessment from a noise expert. This removed the objections from environmental health subject to imposing planning conditions. Planning officers considered there was some harm to amenity caused by the proposal. But balanced with the proposal’s economic benefit, conditions imposed, and existing site use it was not sufficient to warrant refusing the application. The report recommended granting planning permission.
10. The Council considered the application under officers’ delegated powers and approved the application subject to conditions. These included noise control, and lighting and working hours restrictions.
11. Ms Y made complaints to the Council about its decision to approve the application. In summary Ms Y’s concerns were:
• The Council’s heritage and environmental health officers initially rejected the application. But planning officers overruled the heritage officer and decided the application based on an inaccurate noise report submitted by the applicant. Ms Y considered the report misleading as it did not mention her property but did refer to other nearby properties. And it only referred to the impact onto new housing development on the eastern site boundary and not on existing properties on the western boundary where her property was.
• The planning officers’ report failed to mention receipt of the noise report.
• The Council did not notify her about the noise report from the applicant’s noise expert so she could not comment on it.
• There would be issues later with air conditioning at the new workshops which would impact on to her property.
• Officers had failed to take account of the impact on to her listed building from the proposal and the harmful impact onto her summer house caused by the washing unit when considering the application.
• The Council failed to notice the applicant had wrongly drawn the red boundary line for the site. Ms Y said the applicant included agricultural land into the application site with no change of use for the land to become industrial. So, the proposal was not within the site boundary.
• The Council delayed and failed to respond to some of the complaints she made during 2020 and 2021. This was despite her chasing the Council for responses and being assured it would reply.

The Council’s response to Ms Y’s complaints

12. The Council confirmed the site’s use as agricultural sales and servicing was established for 40 years without any planning restrictions. So, there were no restrictions stopping noisy activities in the yard when in full use. The planning applicant submitted a noise report as part of application after sending in other documents. Planning officers consulted with environmental health but did not do any wider consultation. This was because the report did not amend the physical proposal being considered and already consulted on. The Council considered it was a specialist technical issue relevant only to consult environmental health about.
13. The Council noted the report named other properties but did not mention Ms Y’s. But considered the report dealt with the overall noise from the yard in general. The noise expert had taken the data from a single point of reference to assess the background noise and was not required to identify a specific property or boundary. The Council believed the noise expert had misunderstood the names of the properties, but the report made no specific point or survey about the properties. In the officers’ judgement this was not considered necessary.
14. The Council noted the applicant mentioned a new housing development on the eastern boundary of the site. But said it was for the applicant to decide what information to include in the planning statement. The officers’ report considered neighbour amenity and noted her objections. So, the Council was satisfied it had considered the impact onto her when deciding the application.
15. The Council confirmed the noise report and planning officers’ assessment considered there was overall harm to surrounding existing essential development as well as the new development on the western boundary. The assessment included the impact onto Ms Y’s listed building. The officers also considered whether there was any harm caused to her from the washing unit near to her summer house. But due to the scale of the development and landscaping between the site and her boundary, it considered the impact was not so significant to refuse the application.
16. The Council recognised the heritage officer considered it would cause substantial harm to nearby listed buildings including Ms Y’s property. But the planning officer conclusions were the ‘economic benefits of the proposal would outweigh the low to medium less than substantial harm to the significance of the nearby Listed Building’ . And this issue was sufficiently set out in the officer report.
17. The Council said it decided the application under officer delegated powers, so it was a matter for the officers’ professional judgement to decide if the application was acceptable. The Council considered officers correctly addressed the merits of the scheme. And imposed conditions on the permission to control noise and working hours. The Council recognised Ms Y disagreed with the officers’ judgement over the scheme.
18. The Council explained the air conditioning units were not part of the application or approved under the planning permission. If the applicant installed such units, they may be subject to permitted development rights and not need planning permission. Otherwise, the applicant would need to apply for planning permission. The Council said environmental health officers noted and considered this issue when commenting on the proposal.
19. The Council considered the planning unit area to be the red line boundary submitted with the application. It confirmed the planning permission altered the lawful use of the land and this can be established over time without planning permission. As the Local Planning Authority (LPA), it was not required to seek evidence of use or uses for the red line area submitted with an application. The Council confirmed it had followed planning guidance by accepting the drawn boundary line as part of the application. And noted the red line did not have to match up to the actual boundary of the site.
20. The Council said the planning history of the site and red line for other applications has been varied. But it could not rely on planning history to show the full extent of established use. This would only be established if the applicant applied for a certificate of lawful use. The Council did not consider the applicant misled it over the boundary and it determined the application as presented which was required by the law. The Council advised Ms Y to contact planning enforcement if she considered there was unlawful development on the site.
21. The Council accepts an error in the planning report as officers had not changed a standard paragraph. This said the application had not been subject to amended plans or added documents while being decided. The Council confirmed it should have changed the paragraph to refer to receiving the noise report. The Council apologised but advised the report was referred to and considered by environmental health as part of the application.
22. The Council acknowledged there had been much correspondence with Ms Y about the application. It apologised if it had not acknowledged or responded to all the letters she sent. The Council considered it had responded to all the concerns raised by Ms Y in her stage one complaints. It advised it had a procedure in place for her to go to stage two with her concerns and apologised it had not offered her the choice sooner. The Council accepted it should have advised her to go to stage two in its response in September 2020.

My assessment

23. The evidence provided shows the Council responded to Ms Y’s concerns about the noise report, the planning application boundary and use of the land. The Council also advised Ms Y of action to take about the use of air conditioning units if installed. While Ms Y may not agree, it is for the Council as LPA to decide whether the information submitted with an application was suitable and provided sufficient information to enable it to be determined.
24. The documents show Ms Y’s concerns about impact onto her listed building and potential harm caused to her summer house were considered as part of Council’s evaluation of the application. Ms Y disagrees with the Council’s decision to approve the planning application, but the decision is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
25. This is because officers considered the information provided including Ms Y’s objections to the proposal. The officers also considered the heritage officer response and others consulted on the application. While noting the comments the planning officers did not consider the impact so significant to refuse the application. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached these decisions from the evidence I have seen.
26. The Council apologised for error in the planning report when not amending the standard paragraph to show it did receive more information. But the report clearly explained about receiving and considering the noise report. So, I consider the Council’s apology to Ms Y suitable action for it to take. While I acknowledge Ms Y wished to be advised of receipt of noise report, the Council only considered it necessary to consult with environmental health due to the technical nature of the report. This is a decision for the Council, and it did eventually place the noise report on its planning website for anyone to see.
27. The Council accepts it may not have responded to all Ms Y’s letters and could have advised her to pursue the matter at stage two of the complaints procedure sooner than it did. This is fault by the Council as it should have advised Ms Y how to pursue her concerns. However, I cannot say if it would have resolved the matter any sooner as Ms Y disagrees with the Council’s judgement on the planning application. But I consider Ms Y has been caused an injustice through frustration in not receiving responses to all concerns she raised. Ms Y has also been put to time and trouble in pursing the matter over time. The Council has already apologised to Ms Y, but I recommend it pays her £100 in recognition of her frustration and time and trouble in pursuing her complaint.

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Agreed action

28. The Council will pay Ms Y £100 in recognition of her frustration and time and trouble in pursing her complaints about the planning application. The Council will make the payment within one month of the date of my final decision.

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Final decision

29. I am completing my investigation. I have found no evidence of fault by the Council in the way it considered a planning application for development at a site adjacent to Ms Y’s property. But the Council was at fault in the way it responded to Ms Y’s complaints about the matter.

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Investigator's decision on behalf of the Ombudsman