Summary: Mr and Mrs X complained about the Council’s decision to grant planning permission for a local cricket club to install a large, steel storage unit. The Ombudsman did not find fault in the Council’s decision-making.

The complaint

1. Mr and Mrs X complained about the Council’s decision to grant planning permission for a local cricket club to install a large, steel storage unit.
2. Mr and Mrs X said the storage unit is unsightly and will harm the conservation area, which is a visitor attraction. They also said it will negatively impact their business.

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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. 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 the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council.
• National Planning Policy Framework.
• South Somerset Historic Environment Strategy (January 2017).
6. Mr and Mrs X 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

Planning policy and guidance

7. Planning permission is required for the development of land (including its material change of use).

Publicity for planning applications

8. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a councils “Statement of Community Involvement”. In all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice and publication in a local newspaper.
9. The Council’s Statement of Community Involvement says it will ‘normally’ notify adjoining properties about a planning application by letter.

Conservation Areas

10. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
11. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications. Even if a proposed development is outside a Conservation Area, councils may take account of the impact it will have upon the Conservation Area itself.

Decision making and material considerations

12. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
13. 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.
14. 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.
15. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
16. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Case officer reports & giving reasons for decisions

17. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
18. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

What happened

19. I have detailed below some of the key events leading to Mr and Mrs X’s complaint. This is not intended to be a detailed account of what took place.
20. On 4 February 2021 a local cricket club asked the Council for permission to install a large storage unit made of steel to replace a smaller existing unit.
21. The Council displayed a site notice about the application on 7 February and placed an advert in a local newspaper on 11 February.
22. Mrs X objected to the application on 7 March. She said:
• The storage unit will be visible from her land and from the public footpath of a popular local walk.
• The development was inappropriate and will harm the conservation area.
• There are no public benefits to the development, so the Council should reject it under the National Planning Policy Framework.
23. Mr X objected, for the same reasons, on 26 March. He said the only benefits are private and not to the public. He said the development will detract from the scenic beauty of bordering parkland and will not blend with surroundings. Unfortunately, the Council received Mr X’s comments a few days after it had granted permission.
24. I shall refer to the planning officer who decided the application as Officer one.
25. Officer one consulted a conservation specialist about the application. The conservation specialist advised the storage unit would be harmful to the conservation area due to its external finish. They did not object to the principal of the storage unit in this location, but suggested it be clad in timber.
26. Officer one considered the visual impact of the storage unit. They said several trees will screen the unit, but it will be visible. Officer one considered the unit would not have a demonstrably harmful impact on overall visual amenity and would not be a prominent feature given the distance from the public domain.
27. Officer one considered the cricket club is an important community asset, mentioned in the village design statement. As well as existing teams and activities, the club looks to promote new teams and holds events like weddings and fundraisers. Officer one considered the proposal is to meet the needs of the club and to offer further opportunities to the community to take part and host events. Officer one therefore considered the development accords with the Council’s local plan.
28. Officer one said the development will enable the continued sustainability and increased development of a long-established community sports facility. Officer one considered the club is key to provision of opportunities to promote betterment of health and well-being of local residents as well as sports and community events. They referred to the village design statement, which states ‘community amenities…should be protected and encouraged. These include…the cricket club.’
29. Officer one considered the storage unit will achieve a public benefit and, weighed against the degree of less than substantial harm, this is a enough net gain to the make the development acceptable.
30. Officer one recognised the storage unit is not conventional within a conservation area and the conservation specialist advised the unit would be harmful due to its external finish. However, Officer one considered the unit would be a sufficient distanced from the public right of way to reduce the impact. Because the unit will be green Officer one considered it will blend in with the landscape to a degree. Officer one therefore did not consider the applicant must finish the unit in timber cladding. Plus, Officer one considered timber cladding could result in maintenance and longevity issues.
31. The Council granted planning permission on 29 March.
32. Mr X complained to the Council on 5 April. He said:
• Officer one predetermined the application, failed to notice the applicant did not provide a statement about the public benefits of the development, then told the applicant exactly what to put in the statement.
• Officer one granted planning permission only six days after receiving the applicant’s statement about the public benefits, giving no time for public comment.
• While it is arguable there are public benefits to the cricket club, there are no public benefits to the storage unit as the public cannot access it.
• Officer one did not show the public benefits outweigh the harm.
• Officer one rejected advice from a conservation specialist and asserted his own opinion about the suitability of timber cladding.
• Officer one distorted the facts. There are very few trees screening the storage unit and it will not be a notable distance from the public domain.
33. The Council responded on 12 May. It said it was satisfied Officer one properly considered relevant policies and gave proper weight to material planning considerations. Officer one took suitable advice and wrote a detailed report that rightly determined the benefits outweigh harm.
34. The Council appreciated planning can be subjective but said Officer one made a suitable recommendation, agreed by the local councillor.
35. Mr X asked the Council to reconsider his complaint. He said the Council had not identified any public benefits, only private. He asked the Council to list the public benefits. He also said the Council had not referred to South Somerset’s Historic Environment Strategy.
36. The Council sent its final complaint response on 12 August. It said Officer one considered the visual impact of the storage unit, and screening options, and decided it would not be right to change the external finish due to durability concerns. The Council said it agreed with those conclusions.
37. The Council said officers base their judgements on material planning considerations rather than personal opinions. Where the Council refuses an application on non-material grounds the planning inspector would likely overturn its decision if an applicant appealed.
38. In further email correspondence, the Council told Mr and Mrs X that, as well as the community benefits Officer one discussed, the applicant’s existing storage unit stores village tables and chairs. Mr and Mrs X told the Council that was untrue.
39. Mr and Mrs X brought their complaint to the Ombudsman on 2 September 2021.

Analysis

40. The Council must publicise planning applications of this type. In this case it advertised in the local press and erected site notices. The Council told me it did not write to Mr and Mrs X because, while they own adjoining land, the nearest dwelling is a holiday cottage and is a significant distance from the development site.
41. The Council’s Statement of Community Involvement says it will ‘normally’ notify adjoining properties by letter. It doesn’t say it always will or must. While I do not consider it was best practice by the Council to not notify Mr and Mrs X, it does not amount to fault because the Council had discretion.
42. Mr and Mrs X told me the Council’s failure to notify them meant they missed a parish council meeting where the application was discussed. They said they were deprived of the chance to influence parish councillors. The Ombudsman cannot speculate on what might have happened if Mr and Mrs X had attended the parish council meeting.
43. Mrs X did comment on the application, and the Council considered her comments. Mr X told me he sent added comments, but the Council made its decision before considering them. I found Mr X’s comments raised much the same points as Mrs X, and those points were considered by the case officer in the decision report. Mr and Mrs X therefore did not suffer any injustice in that regard.
44. The Council got a heritage statement from the applicant as part of its consideration of the application. The parties to an application are the Council and the applicant. The National Planning Policy Framework encourages councils to work proactively with applicants. It is therefore expected there will be engagement between the two. I have not seen evidence of bias or predetermination when Officer one discussed the heritage statement with the applicant.
45. We expect councils to consider advice from relevant experts and professionals, such as the conservation specialist in this case. However, advice is just that. The Council gave reasons why it chose not to follow the advice. I do not consider that was fault.
46. Officer one’s report does not specifically refer to the South Somerset Historic Environment Strategy. That strategy includes the Council’s commitment to protect and preserve the character of registered parks and conservation areas. Officer one’s report considers the impact on the conservation area and park, including the visual impact and character of the storage unit. I therefore do not consider the Council is at fault.
47. Mr and Mrs X said officer one’s report incorrectly referred to the impact on non-designated heritage assets, but the conservation area is a designated heritage asset and should receive more protection.
48. The Council acknowledged officer one made an error in his report by citing paragraph 197 of the National Planning Policy Framework, rather than paragraph 196. However, the Council said the officer clearly set out his consideration and justification for the decision.
49. As discussed in paragraph 18 above, the courts have confirmed officer reports do not need to be perfect, should not be hypercritically scrutinised, and should not be challenged unless the overall effect is significantly misleading about the material issues. Irrespective of this error, I found officer one considered the relevant material issues and cited other relevant planning policy when explaining his decision. I therefore find no fault with officer one’s report.
50. Mr and Mrs X complained the applicant’s heritage statement was only available on 23 March, with the Council granting planning permission on 29 March before it received Mr X’s comments. That is unfortunate. However, Mrs X had already commented on the perceived lack of community benefits in her objections, and Officer one considered this in his report. I therefore do not consider Mr and Mrs X suffered any injustice here.
51. Mr and Mrs X say the Council gave false information about the use of the storage unit. I found no evidence the Council gave a deliberately false statement. On the evidence seen, officer one properly considered the use of the storage unit and its community benefits.
52. Officer one’s report gave reasons why they consider the development has public benefit. The Council’s later statement about a specific storage use does not undermine the decision.
53. It is not for the Ombudsman to consider the merits of the application and decide whether the storage unit has public value. That is a decision for the Council. The Council considers the storage unit does have community value and I consider it justified its decision. The fact Mr and Mrs X disagree does not mean the Council is at fault.
54. I appreciate Mr and Mrs X consider there will be an adverse impact on their business. However, on the evidence seen, that is not something the Ombudsman can quantify or verify.
55. Mr and Mrs X said it took the Council five months to complete the complaint process. The Council told me it responded to the stage one complaint in five weeks. It said it received the stage two complaint on 28 June 2021 and replied the same day, asking Mr and Mrs X to provide missing key information. It said they provided this on 21 July and the Council sent its stage two response three weeks later.
56. I found the Council’s stage one response was eight working days late. That is not best practice but does not amount to significant fault and did not cause any significant injustice. At stage two, I found the Council responded in a reasonable timeframe.
57. The Council apologised to Mr and Mrs X for any delays and did provide full complaint responses. I therefore do not consider any significant injustice was caused.

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Final decision

58. I have completed my investigation. The Ombudsman did not find fault in the Council’s decision-making.

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Investigator's decision on behalf of the Ombudsman