Buckinghamshire Council (21 010 630)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 08 May 2022

The Ombudsman's final decision:

Summary: Mr X complained on behalf of Mr Y about the Council’s decision to grant planning permission for a development near his property. He also complained about the Council’s planning enforcement investigation. He said the development negatively impacted his amenity. We did not find fault with the Council.

The complaint

  1. Mr X complained on behalf of Mr Y about the Council’s decision to grant planning permission for a development near Mr Y’s property. Mr Y complained:
  • he was not notified of the proposed development as part of the consultation process;
  • the development was built too close to his property and not in line with agreed plans;
  • the Council failed to properly consider the impact on his amenity; and
  • a Council employee was connected to the applicant and influenced the planning process.
  1. Mr Y said the development had a negative impact on his amenity and enjoyment of his property. He also said it has decreased the value of his property.

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The Ombudsman’s role and powers

  1. 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)
  2. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened
  3. We cannot question whether an organisation’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 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

  1. I spoke to Mr X and considered the information he provided with his complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
  2. Mr X, Mr 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

Law and guidance

Planning permission

  1. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
  • overlooking and loss of privacy;
  • noise;
  • traffic; and
  • the impact on neighbouring amenity.
  1. Planning considerations do not include things like:
  • views over another’s land;
  • the impact of development on property value; and
  • private rights and interests in land.
  1. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  2. Regulations set out the minimum requirements for how councils publicise planning applications.
  3. 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.
  4. For all other applications, including minor developments, councils must publicise by either:
    • a site notice; or
    • serving notice on adjoining owners or occupiers.

Enforcement

  1. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
  • carrying out of development without the required planning permission; or
  • failing to comply with any condition or limitation subject to which planning permission has been granted.
  1. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.

What happened

  1. What follows is a brief chronology of key events and information. It does not contain all the information I reviewed during my investigation.
  2. In 2019 the Council received a planning application for a development on land adjoining the rear boundary of Mr Y’s property. The nature of the development meant the building would be used by the community at various times of the day and evening during both the week and weekends. The proposed building would be large enough to be visible from Mr Y’s house and garden.
  3. The Council sent notification letters to neighbouring properties, displayed site notices and published the planning application.
  4. In June 2020 the application was heard by the Council’s strategic sites committee. In their report the officer said:

“At the closest point, the new (building) will be approximately 40 metres from the nearest residential property… and 12 metres from its rear boundary. High level windows for ventilation in the north-west elevation of the (building) are proposed to be provided. These would face towards the residential properties on XXX. While the building will be clearly visible from the residential properties, it is considered the distances and presence of vegetation are sufficient to prevent the proposed building appearing overbearing or causing any loss of privacy or light”.

  1. The report recommended conditions in respect of the buildings use and lighting to safeguard the amenity of nearby residents.
  2. The Council approved planning permission with conditions.
  3. In December 2020 Mr X complained to the Council on behalf of Mr Y. He said work had begun on the new building and the footings were not at the distance approved in the planning permission. He also said Mr Y, and other residents, had not received notification of the development.
  4. The Council opened a planning enforcement investigation. It visited the site and measured the distances. It said the development was being built in accordance with the approved plans. It closed the case.
  5. Mr X complained to the Council. Between July 2020 and March 2021 there was ongoing correspondence between Mr X and the Council about the development and the complaint issues.
  6. In March 2021 the Council met Mr X and a Councillor at the site to explain how it measured the distances for its planning enforcement investigation. It confirmed the measurements were in line with the approved plans and there was no breach of planning control.
  7. In response to Mr X’s other complaints the Council said:
  • a condition was placed on the planning permission requiring a community use agreement. It said the agreement did not include use in the evenings;
  • any Council employee or representative connected with the applicant played no part in the planning process; and
  • all the adjoining neighbours were notified of the development.
  1. Mr X and Mr Y remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

  1. I have summarised my findings under the main complaint issues.

Planning permission

  1. I did not find fault with the Council for the way it considered the planning application and decided to grant planning permission.
  2. When investigating complaints about how a council has considered a planning application, we look for evidence that a proper process was followed before a decision was made. We expect to see evidence the Council has identified the material planning considerations, such as impact on neighbours’ amenity, and they have been properly considered. The weight the Council gives to them is a matter for its judgement. We will not come to our own view on the merits of the planning application.
  3. In this case the Council set out its view on the material planning considerations in the officer’s report for committee. It demonstrated how it considered the impact on Mr Y’s amenity and why it considered the application was acceptable in planning terms.
  4. I understand Mr Y is unhappy with the decision but I did not find fault with the way the Council reached its view.
  5. I did not find fault with the Council for failing to notify Mr Y of the planning application. Mr Y said he did not receive the notification. The Council said it sent the letter to Mr Y. It produced evidence of all the addresses it included in the notification process. The Council does not have to prove the notification was received. If there was an issue with the delivery after the letter was generated by the Council that does not mean the Council was at fault.
  6. Mr X said a Council employee connected with the applicant influenced the planning application. The Council said the employee played no part in the application process and had no contact with the planning officers during the process. I did not find any evidence to support Mr X’s allegation.

Planning enforcement

  1. I did not find fault with the way the Council investigated alleged breaches of planning control.
  2. Mr Y said the new building is built too close to his boundary. He said it was not built in accordance with the approved plans and the Council failed to measure the distances properly.
  3. The Council visited the site twice and measured the building and the distances. It explained to Mr X how measured the distances. It investigated the alleged breaches and found there had not been a breach of planning control.
  4. I did not find any evidence of fault in the way the Council investigated the alleged planning breaches. Therefore, we would not question the professional judgement of the decision maker.

Other matters

  1. Mr Y also complained about the noise from the use of the building in the evenings.
  2. I did not find fault with the way the Council considered the building use during the planning process. It conditioned the planning permission and required a community use agreement for the new building. This was because of the potential impact on neighbours’ amenity.
  3. The community use agreement was submitted and agreed in April 2021. This sets out when and how the building can be used. The Council was wrong to tell Mr X in its complaint response that the agreement did not include any evening use. The agreement included evening use until 10pm. However, this does not amount to fault and the Council accepts this was incorrect. This information had no impact on the decision or outcome in terms of the use of the building.

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Final decision

  1. I did not find fault with the Council. I completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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