Summary: The Council was at fault for failing to notify neighbouring properties about a planning application. This resulted in neighbours not being able to comment on the application. The Council has apologised and amended its internal procedure for sending out notification letters. This is a sufficient to remedy any injustice caused.

The complaint

1. Mr X, Ms Y and Ms Z complain about the Council’s decision to approve a planning application for the development of five dwellings near to their homes without consulting them. The complainants say they lost the chance to raise objections to the application. The complainants are represented by Mr X.

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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. 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. 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

5. As part of this investigation I considered the information provided by Mr X and the Council. I considered the online documents relating to this planning application on the Council’s website. I considered the relevant sections of the Town and Country Planning (General Permitted Development) (England) Order 2015. I sent a draft of this complaint to Mr X and the Council for comments.

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What I found

Prior approval applications

6. Prior approval means that a developer must seek approval from the local planning authority that specified elements of the development are acceptable before work can proceed. The matters for prior approval vary depending on the type of development and these are set out in full in the relevant Parts in Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. A local planning authority cannot consider any other matters when determining a prior approval application.
7. Where a development proposes to change the use of a building from agricultural to a dwelling house (under Class Q(a)), the Council can only consider the following matters when deciding whether to grant prior approval to the planning application:
1. Transport and highways impacts of the development.
2. Noise impacts of the development.
3. Contamination risks on the site.
4. Flooding risks on the site.
5. Whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to use as a dwelling house. (Town and Country Planning (General Permitted Development) (England) Order 2015, Schedule 2, Part 3, para Q2)
8. Councils must give notice of a proposed development either by displaying a site notice on or near the land to which the application relates for at least 21 days or by sending a notice about the proposed development to any adjoining owner or occupier. Should the Council display a site notice, the notice must describe the proposed development, provide the address and specify the date any comments must be received by the Council. (Town and Country Planning (General Permitted Development) (England) Order 2015, Schedule 2, Part 3, para W)

What happened

9. Mr X, Ms Y and Ms Z live near a site which was used for agricultural purposes. In May 2021 the Council received a prior approval application from a developer to change the use of the buildings on the site from agricultural to dwelling houses.
10. The Council created notification letters for Mr X, Ms Y and Ms Z, however these were not actioned. Several days later the Council re-printed the letters, however they were not received by Mr X, Ms Y or Ms Z.
11. At the end of June 2021 the Council approved the application. The case officer’s report discussed the impact of the proposed development on the matters a) – e) listed above.
12. In early July Mr X contacted the Council and said he did not get the opportunity to comment on the application. Mr X said he wanted to make objections about the impact of the development relating to noise, environmental issues and the public right of way. Ms Y also contacted the Council in early July 2021 reiterating Mr X’s comments and asked the Council to revoke the application.
13. The Council treated Mr X and Ms Y’s comments as a formal complaint and provided its stage one response on 12 July 2021. The Council said it did consult neighbouring properties and sent notification letters on 14 May 2021. The Council said it did not need to display a site notice as it notified neighbouring properties by letter. The Council said it did not need to consult with the properties to the south of the development as they were not adjoining neighbours. The Council said it was satisfied it approved the application in accordance with the relevant law and there were no grounds to revoke the decision.
14. Mr X asked the Council to escalate the complaint to stage two on 13 July 2021. Mr X said no neighbours received notification letters about the application and the Council had not provided any proof of printing or posting. Mr X also said the Council should have put up a site notice so those who used the public right of way could object.
15. Ms Z also contacted the Council about its decision to grant prior approval to the application. Ms X said she did not receive a consultation letter about the proposed development. She also raised concerns about the public right of way being used by residential traffic from the development and said this would cause additional noise issues and devalue her property.
16. On 22 July 2021 the Council provided its final response to the complaint. The Council acknowledged there was an issue with the printing of the notification letters. It said these were re-sent but conceded neighbouring properties must not have received them and something must have gone wrong with the printing or delivery of the letters. The Council apologised for this and said it was amending its internal procedure so that an event note would be attached to any case where technical issues occurred. The Council said this would ensure the case officer properly records any checks and steps taken to resolve technical issues.
17. In relation to the decision to approve, the Council said it assessed the proposal in line with the requirements contained in Class Q(a) of the Town and Country Planning (General Permitted Development) (England) Order 2015. The Council said had it received the concerns raised by neighbours during the consultation period it would have still approved the application.
18. Mr X remained dissatisfied and complained to the Ombudsman. Mr X raised concerns about the access to the development via a farm track as this is a public right of way and would become dangerous for walkers and others who currently use it. Mr X also said the track runs past three houses and the traffic caused from the five houses will cause noise, loss of privacy and security.

Analysis

19. The Council was at fault for failing to notify Mr X, Ms Y and Ms Z about the planning application. The Council did generate notification letters on 14 May 2021 however there was an issue with printing these. While the Council said it re-printed these it has acknowledged the complainants did not receive them.
20. The resulting injustice was that the complainants missed the opportunity to raise their objections to the planning application. The Council has apologised and put in place procedures to stop this from happening again. I consider this a suitable to remedy any injustice caused to the complainants.
21. I do not consider the outcome of the decision to approve the application would have changed had the complainants been able to raise objections. The case officer’s report shows the Council considered the impact of the development on transport and highways, noise, contamination, flooding risk and design/external appearance of the development. As this was a prior approval application this is all the Council had to consider and was in line with Schedule 2, Part 3, para Q2 of the Town and Country Planning (General Permitted Development) (England) Order 2015. In relation to the public right of way the case officer has considered the impact of additional traffic from the residential homes.
22. While I recognise the complainants may disagree with the views of the case officer and feel the impact of the development and access via the track is unacceptable, this does not mean the way the case officer considered the impact of the development was flawed.

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Final decision

23. I have completed my investigation and found the Council was at fault for failing to notify the complaints about the planning application. However I do not consider this would have altered the outcome of the planning application even if the complainants objected. The Council has apologised and put in place procedures to stop this from reoccurring. I consider this a suitable remedy for any injustice caused.

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Investigator's decision on behalf of the Ombudsman