Summary: Mrs X complained about the Council’s planning decision. We found fault because there was an inconsistency between the Council’s statement of community involvement document and its delegation scheme, which the Council has agreed to remedy.

The complaint

1. Mrs X complained about the Council’s decision to approve a planning application for a large storage facility that is near to her home. Mrs X said the development is overbearing and construction work is noisy.

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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 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

4. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
11. While construction management conditions may help lessen the impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
12. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.
13. Regulations set out the minimum requirements for how councils publicise planning applications.
14. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
15. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
16. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
17. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.

What happened

18. Mrs X lives near to a site that was occupied by a large storage and distribution facility. The Council received a planning application to demolish the buildings on the site and to rebuild replacements.
19. The Council’s records show that it publicised the application by:
• putting up a site notice;
• sending notification letters to local residents; and
• placing an advert a local newspaper.
20. The Council’s planning case officer considered the application and wrote a report. The case officer’s report included:
• a description of the proposal and site;
• comments from neighbours and other consultees;
• details of planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. The application was approved by another officer using delegated powers found in the Council’s constitution.
22. Mrs X complained to the Council about what had happened. She said that neighbouring residents had not been consulted, that the development would be overbearing, construction work noisy, and that the planning committee should have made the planning decision, because this was a major application.
23. The Council responded and said that its records showed that it followed the publicity process and the case officer’s report showed that the development’s impact on neighbouring residents had been considered.
24. During its investigation into another complaint, the Council accepted there was a discrepancy between its SCI and its delegation scheme. The SCI said that major applications will be decided by the planning committee, while the delegation scheme said that major applications will be decided by officers unless the Council received five or more objections relating to material planning considerations.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision making process, and if we find it, we decide whether it caused an injustice to the complainant.

Publicity process

26. Mrs X said she was not aware of the application, as she did not see the site notice or receive a notification letter.
27. Councils are not obliged to provide evidence of delivery of notification letters. If they send them, the best evidence we can get to show they were posted is evidence they were produced. The Council has provided a computer record screen shot showing a date when the notification letters were produced. I consider it more likely than not that the letters were produced and posted.
28. The Council sent a copy of the site notice and a photo of it attached to a lamp post. Mrs X said she did not see it, because it was placed at the site entrance which is some distance from her home.
29. The regulations require that notices are placed near the site, and it is usual practice to position them near site entrances. There may be occasions when councils should consider placing additional notices around large sites in areas likely to be affected by proposed development, but I cannot say this should have happened in this case. Whether to place additional site notices is a matter of discretion for the Council’s planning officers.
30. The Council provided evidence to show it followed the publicity process we would expect and so I find no fault.

Impact of development on residents

31. Mrs X is unhappy with the impact the development would have on her amenity, particularly that the new building will be overbearing as it is larger than the original structure and closer to the boundary.
32. The case officer’s report shows that before it made its decision, the Council considered the impact on neighbouring amenity. It had plans that showed the location of the proposal and how it related to existing buildings.
33. Mrs X said that the construction process has caused a problem with dust in the area. The Council imposed planning conditions, including one requiring a construction management plan. Mrs X can report breaches of planning condition to the Council’s planning enforcement officers, who may decide what if any action is necessary.

Delegated decision

34. The Council now accepts that there is a discrepancy between its SCI and its delegation scheme.
35. This is fault and it will have caused confusion and disappointment to Mrs X, who might have wanted to have her objections considered by the planning committee.
36. The SCI should have been consistent with the delegation scheme, which is found in the Council’s constitution. I will recommend that the Council corrects the discrepancy and informs us when it has done so. I do not recommend a financial remedy because I have no evidence to show that, but for the fault, the outcome would have been different.

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Agreed action

37. To ensure the fault does not cause injustice in future, the Council has agreed to:
• apologise to Mrs X for the error and any confusion and disappointment it may have caused;
• correct the discrepancy; and
• inform us of the changes it has made within three months from the date of this decision.

Final decision

38. I found fault causing injustice to Mrs X and I completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman