Summary: Mrs X complained on behalf of a group of residents who are concerned about development in their area. We ended our investigation because further investigation was unlikely to result in a finding of fault, a significant injustice or any other meaningful outcome.

The complaint

1. Mrs X complained on behalf of a group of residents who are concerned about development in their area. Mrs X complained about several issues relating to a new housing development on land next to her home, including:
• The use of non-material amendments (NMAs) to approved plans. Mrs X said they sometimes related to issues which in her view were significant and required re-publicising the proposed changes. Mrs X believes the Council has shown itself to be too compliant and willing to give in to the developer’s demands.
• The Council accepted an Ecological Enhancement Strategy (EES) that was out of date and as a result, it was unlawful. Mrs X said the Council’s ecology officer was not happy with the proposed development before it was approved.
• Some of the buildings on the site had moved and were now closer to existing houses than had been previously proposed.
• This approval is one of a number that have greatly increased the size of the village. The village does not have the infrastructure to cope with a large influx of new residents.
• The Council has not been willing to enforce breaches of a construction management planning condition.
• The Planning Inspector’s decision to allow the development was in breach of some planning policies.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. 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. I considered a separate submission from an individual member of the residents group Mrs X represents.
4. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

5. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. On larger developments, applicants often submit ‘outline’ applications, with plans that give an indication of what is proposed to be built, and include some details, usually including details of access to the highway. An outline approval can be followed by a ‘reserved matters’ application, which will provide all or most of the details needed to make a decision.
6. 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.
7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils may 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.
12. While construction management conditions may help lessen the harmful impact of major development, they cannot ensure it is avoided entirely. Some disruption from building work on large sites can be unavoidable. 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.
13. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
14. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
15. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
16. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
17. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
18. If the council decides the changes are ‘material’, it may require that the whole process begins again with a fresh application. However, if the changes are considered ‘non-material’ the council may allow changes without re-starting the process, but only if:
• it considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make; and
• the nature of the application remains the same, so the amended proposal is still substantially the same as the original.
19. This type of amendment is known as a non-material amendment (NMA).
20. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.
21. Certain species are protected by law. It is a criminal offence, amongst other things, to:
• deliberately injure or kill a protected species;
• intentionally or recklessly disturb them; or
• damage or destroy a place used for breeding or resting, even if the protected species is not occupying it.
22. Planning applicants may be required to commission a survey by an experienced and qualified ecologist if their proposed development might affect a protected species.
23. If a protected species uses the site, the ecologist will:
• assess the impact of the development;
• adjust the plans if possible;
• propose mitigation measures to reduce or offset any damage;
• state whether a mitigation licence is required by Natural England.
24. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

25. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
26. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Background

27. Mrs X complained on behalf of a group of residents who are concerned about damaging development and development in their area.
28. Mrs X complained about a reserved matters planning approval for housing development. The Council had previously refused the application at outline stage, but this decision had been overturned by the Planning Inspectorate at appeal.
29. 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;
• a summary of relevant planning history;
• a summary of comments from the public and other consultees, including the Council’s ecologist;
• a summary of the differences between the application and an earlier application that had been withdrawn;
• details of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the principle of the development, the impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
30. The Council approved the application subject to conditions and a decision was issued.

My findings

31. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
32. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
33. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
34. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
35. I decided not to investigate this complaint further and my reasons are as follows:
• The Ombudsman’s service was set up to consider complaints from individuals affected by fault in decision making processes. We normally need evidence of a significant injustice to an individual before we begin or continue an investigation. In its essence, this complaint is from a group of residents who are unhappy with this and other planning decisions in its area. We do not carry out general audit style investigations about how a council’s planning service performs.
• We are not an appeal body to judgements that councils make in relation to a planning application. We are a review body, and our focus is on allegations of fault in the decision making process. From the evidence I have considered, there is no obvious fault in the way the decision was made. The case officer’s report shows that the main planning considerations were taken into account before a decision was made.
• I have seen no evidence to suggest the EES was unlawful. The survey shows it was updated by a further site visit. Government guidance sets out circumstances where ecological surveys might be required, but there is no indication to show they might become outdated. The Council’s ecologist made recommendations but did not object in principle.
• I have considered the site layout plan and have seen no evidence to suggest that new buildings will be unusually close to existing houses. Normally, where individuals are significantly affected by development, they complain to us directly, rather than as part of a group. While Mrs X can represent other individuals who claim to have been personally affected, we would need more details to support her allegation that some buildings are too close to some of the residents. We would also need evidence to show that the individuals concerned consent to her representing them for how they have been personally affected. If we did investigate such a complaint, it is more likely to focus on that part of the site that affects the individual, rather than a general/whole application style investigation.
• It is not unusual for developments, particularly major developments, to change as they are constructed. It is up to the Council to decide whether proposed changes are non-material or whether they should be re-publicised. Before we investigate whether a NMA decision was properly made, we would need evidence to show that an individual was disadvantaged by not being consulted and that, as a result, their amenity was significantly affected. I have seen no evidence of this.
• Mrs X complained the Council has not taken planning enforcement action in relation to breach of a construction management plan condition. To investigate this part of the complaint further, we would need evidence of a fault in the decision-making procedure that caused a significant injustice to an individual. Planning enforcement is discretionary and subject to separate decision making processes from planning application approvals. Providing the Council’s enforcement officers consider the allegations alongside its powers before making a judgement, they have discretion on what, if any formal action, they should take.
• I understand why Mrs X and other residents are concerned by an increase in the number of houses in their area. However, this part of the complaint is too wide and general in its nature for me to investigate. Our focus is on how individuals are caused an injustice from development that directly affects their amenity.
• After I discussed the case with Mrs X, an individual member of the group did write to me separately, with their concerns.

• They complained the Council’s design guidance was not followed. Relevant guidance should be considered, but it cannot be applied as if it creates binding rules. I can see the design guidance was considered, and it is not for me to say how it should be applied.
• They complained about adequacy of fencing to the rear gardens of new housing and fears they will not protect them from crime and anti-social behaviour. The Council considered an objection related to this issue, along with objections from the Police Architectural Liaison Officer before making its decision. The Council followed the decision-making process we would expect and so I find no fault. We are not an appeal body to planning judgements like this.
• They are concerned that an open area on the boundary that is protected by a drainage easement is likely to be used as play area for the children of new residents. We cannot speculate how this land might be used but I think it unlikely we would find that if the open area was used occasionally for play, this would amount to a significant injustice we should remedy. If there are easements affecting this land, they might be enforced by the individual landowners who benefit from them, but this would be a private matter.

Final decision

36. I ended my investigation, because further investigation was unlikely to result in a finding of fault, a significant injustice to an individual or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman