Summary: There was no fault in how the Authority considered the impact of development on local parking provision, wildlife and trees. The Authority took too long to deal with breaches of planning control. However, these do not impact on Mr D.

The complaint

1. Mr D complains that the Authority did not deal properly with planning matters for development at a site close to his house. in particular, the Authority:
• failed to ensure there would be sufficient on-site parking, and that the development would cause more on-road parking;
• failed to consider the appearance of the development in relation to the surrounding area, or its impact on the amenity of the surrounding properties, including sheltered housing;
• failed to properly assess the impact on trees and wildlife, and that most of the trees on site would be felled; and
• took too long to take enforcement action to regularise unauthorised development on this site.
2. Mr D says as a result of the Authority’s shortcomings, there are significant parking problems in the surrounding streets and this impacts on visibility and highway safety. He also says wildlife habitats have been lost.

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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 an authority’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. If we are satisfied with an authority’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

5. I considered the information provided by Mr D and discussed the issues with him. I considered the information provided by the Authority including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties.

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What I found

The law, guidance and policy

6. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
7. The purpose of the planning system is to contribute to the achievement of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs.
8. All decisions on planning applications must be made in accordance with the planning authority’s development plan, unless material considerations indicate otherwise.
9. Material considerations relate to the use and development of land in the public interest, and not to 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.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. Government statements of planning policy are material considerations. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. ‘’Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.
12. The planning authority may invite a retrospective application to regularise development which has already been undertaken. It should take care not to fetter its discretion prior to the determination of any application – such an application must be considered in the normal way.

What happened

13. Mr D lives in a small rural town. A local site had once been a garden centre, but Mr D tells me that for many years part had been used to store second-hand cars. A landscaping firm decided to develop the area so that it could store materials on site, house an office for customers to visit and separate buildings for toilets and staff facilities. The site is in the next road to Mr D’s home but does not adjoin it.
14. The Authority granted outline planning permission. This established that the new use would be acceptable in planning terms. The Authority’s planning report sets out its assessment of the application. This says:
• the development is acceptable in principle because it will generate employment and so meets its policy to support new, small scale employment developments.
• the site is currently vacant, overgrown and unkempt and if suitably designed, the development could lead to an improvement in the appearance, and it would not be detrimental to the character and appearance of the area.
• there are houses on both sides of the site, but it would be possible to maintain privacy. It notes that the impact of disturbance and noise is less clear, but that a condition restricting the hours or operation would protect the amenity of the neighbours.
• the Authority will consider the access at the reserved matters stage but it is likely to be acceptable and the applicant will be required to submit details of surface water drainage systems.
15. The Authority attached a planning condition that applicant could not operate machinery, carry out any process or take at or dispatch deliveries from the site outside of certain hours.
16. The applicant submitted the reserved matters application for approval of the office and staff room, a storage shed, associated yardage, a polytunnel, storage areas, reception building, parking and landscaping. The Authority’s planning report on the reserved matters application says:
• A resident had asked it to restrict mechanical processes on site and to establish whether badger habitat would be disturbed by the development.
• It described the site as having dense shrubbery and trees. It was inevitable the applicant would remove some of these. The trees appear to have been from an abandoned tree nursery and are set back from the road. The officer’s assessment was that their loss would not be unduly harmful to the character of the area.
• The proposed buildings are single storey and set back from the main road. Their impact on the public domain. The report sets out the officer’s assessment of the impact on the amenity of neighbour. It says three of the four buildings are not close to residential properties and so there is no impact by overlooking or overshadowing. The proposed office however is close to a house. There are no facing windows, but the officer expressed concerns that the office building might be overbearing. However, the office concluded that the impact would not warrant refusal because the rooms of the house have other windows, and the house and the site are owned by the same Trust.
• It would be unreasonable to prevent any mechanical operations on site as this is intrinsically linked to the use and could only be addressed out the outline planning stage.
• the Authority had regard to the wildlife habitats legislation and the applicant submitted a badger survey in response to residents’ concerns. There was no evidence of a badger sett on site.
• The Highways Authority had not commented on the application, but directed the Authority to its policy and technical advice.
17. In November 2020, residents told the Authority that the applicant had started felling trees on another piece of land adjoining the approved site, extending the site by around 20 metres. The Authority visited the site and concluded that the trees were not protected and so could be felled without permission, but the applicant could not use this area as part of the business or lay down any hardstanding for storage, without submitting a planning application. The Authority told the applicant to cease work in this area.
18. In February 2021, the applicant submitted a further planning application to use the extended area at the rear of the site, as part of the landscaping business and to lay down a hardstanding. The Authority visited the site in April, May, July and August. Its files show that in August the Authority concluded that the applicant should withdraw the application and submit two in its place. The first to deal with unauthorised changes to the original ground levels on the main part of the site, and the second for permission to use the extended area, raise the ground levels here and to provide additional screening for the residents adjoining this area. The Authority made it clear in the meantime that the applicant should not use the extended rear part of the site for its business as it had no permission to do so.
19. In October, the applicant withdrew the 2021 planning application and submitted two applications as advised. The Authority is still in the process of determining these applications. Residents have reported that the applicant continues to use this part of the site despite that there is no planning permission for it.
20. In February 2021, the local council’s Environmental Health Officer (EHO) notified the Authority that he had received complaints the firm was using machinery on site outside of the permitted hours. The Authority opened a planning enforcement case, but there is no evidence they took any action until the site visit in August 2021, made to assess the planning application to extend the site. At that time, the Authority also warned the applicant that operations should be within the specified hours to avoid formal enforcement action.
21. Mr D complained to the Authority. He said that it had failed to ensure that there was sufficient parking and this meant that vehicles were parked inconsiderately in the local town; it had not protected trees and wildlife; and had not given sufficient consideration to the screening, noise and other impact on residents.
22. The Authority considered the parking provision was sufficient and the Highways Authority had not objected. It told Mr D the site owner did not need permission to fell the trees as these were not protected; and that it had considered the impact on residents.
23. Mr D complained to the Ombudsman. He explained that the firm has 30 employees but these are not all catered for and a hotel on a site opposite had been refused on appeal because there was insufficient parking provision. Mr D tells us that the tree survey was done by the applicant’s own employee, and the trees were a woodland and not abandoned nursery trees. He also complained that enforcement had taken too long and was still not resolved.

Was there fault by the Authority causing Mr D an injustice?

Parking considerations

24. There is no fault by the Authority here. It did not consider the refused appeal, but has explained that this is not relevant because the hotel needed 60 spaces and only 17 were provided. The Authority’s has given reasons for departing from the appeal decision. The Authority has properly assessed parking provision in line with the Highways Authorities advice. I appreciate that parking is very difficult in the local streets, and that inconsiderate parking is dangerous and frustrating. But the Highways Authority has implemented restrictions where necessary. In addition, I am not convinced that this causes an injustice to Mr D, provided that cars are parked in line with restrictions.

Impact on wildlife and trees

25. There is a difference of opinion between the Authority and Mr D on whether the trees at the rear of the site are woodland or an abandoned tree nursery. However, the Authority is correct that the applicant could fell these without permission. The Authority considered the retention of the other trees on the main part of the site as part of the reserved matters application.
26. The Authority’s policy requires the applicant to produce a tree survey where applicable and this is done by a suitably qualified person. I appreciate Mr D’s concern, but the policy does not require the survey is by an independent person. In addition, the Authority made its own assessment of the site and what would be justified. It did not just rely on the tree survey.
27. The Authority considered information about badger habitat.
28. Overall, there was no fault in how the Authority took account of the impact on wildlife and trees.

Enforcement action

29. There are several enforcement issues. These are raised ground levels on the whole site; the development of land to the rear of the site and not included in the outline or reserved matters planning permission; and operations outside of the restricted hours.
30. There was fault by the Authority here. It responded in good time initially, but then took too long to assess the 2021 application before advising the applicant to withdraw and resubmit further applications. Overall, the breaches are still not resolved, although I recognise that there are applications pending and it is open to the Authority not to take further formal action until it has decided these. It has explained that it will reconsider formal enforcement action if the breaches cannot be remedied by current planning applications. The Authority has also explained it had staff shortages during this time. It engaged contractors to deal with this but it did not clear all its backlog. Although I am sympathetic to the Authority’s efforts to progress cases, we would still expect it to meet the normal standards of determining an application within eight weeks.
31. However, the breaches themselves did not cause Mr D injustice. I have recommended the Authority take action to remedy the injustice caused to the nearest neighbours in a linked investigation of a complaint brought by them.

Impact on amenity and the appearance of the area

32. It is clear that the Authority considered properly the impact on the character of the area. However its assessment in the reserved matters planning report does not adequately consider the impact on the neighbour’s amenity. Again, Mr D is not the neighbour and the lack of consideration does not impact on him. The neighbour has made a separate complaint.

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Final decision

33. I have completed my investigation. There was maladministration by the Authority, but it did not cause Mr D injustice.

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Investigator's decision on behalf of the Ombudsman