Summary: Ms X complained about the Council’s decision to approve a large storage facility on land near her home. Ms X said the new building is large and affects her amenity. We found fault because the wording of a planning policy document is unclear and ambiguous. In addition to an apology to Ms X for any confusion that may have been caused, we have recommended that the Council should review the document and correct it as necessary. It should also review its document checking processes to avoid similar faults in future.

The complaint

1. Ms X complained about the Council’s decision to approve a planning application for a large storage facility on land near her home.
2. Ms X would like the Council to review its policies to ensure they are consistent. She would also like the Council to consider compensating her for the impact the development has had on her property.

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The Ombudsman’s role and powers

3. 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)
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. I read the complaint and discussed it with Ms 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.
6. I gave Ms X and the Council an opportunity to comment on a draft of this decision and considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Before councils consider planning applications, they must check what information they are likely to need. When they are satisfied they have the information they need to consider an application, they ‘validate’ the application and the planning process begins. There are national and local validation lists.
8. The national list includes information that must be provided, which is:
• a completed application on a standard form;
• plans to show the location of the site; and
• the correct fee.
9. Also, and where considered necessary;
• a Design and Access Statement; and/or
• an Environmental Impact Assessment.
10. Local validation lists may set out what each individual council might require if necessary to decide an application. Local lists may include things like:
• existing and proposed elevations;
• cross-section drawings; and
• floor and ground levels.
11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. 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.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
15. 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.
16. 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.
17. Regulations set out the minimum requirements for how councils publicise planning applications.
18. 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.
19. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
20. 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.
21. 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.
22. 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.
23. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
24. 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.
25. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
26. Councils may also protect trees or require new trees to be planted by imposing planning conditions.

What happened

27. The Council approved a planning application for development on land near Ms X’s home. The side of Ms X’s home is about 30 metres from a large new building on the site. There is a tree in her neighbour’s garden and trees on the boundary, which is about 15 metres away, that help to partly screen her view of the large building.
28. 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 in a local newspaper.
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;
• 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.
30. The application was approved by another officer using delegated powers found in the Council’s constitution.
31. Ms X has complained:
• about the impact the development would have on nearby homes;
• the application plans did not include cross-section drawings, whereas these had been included in similar applications;
• the planning application notice was put up on the other side of the site;
• the Council’s Statement of Community Involvement (SCI) policy was inconsistent with its scheme of delegation;
• the planning case officer approved a landscaping scheme without knowledge of existing trees on the site;
• the Council approved a condition controlling building materials, and the materials are inappropriate; and
• the case officer said the development was of similar size to the building it replaced, but this was not true.
32. In relation to another complaint we have already decided, the Council has already 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. The Council agreed to correct the policy discrepancy and inform us of changes it makes to its SCI and/or delegation scheme by the end of April 2022.
33. The Council has a local validation list published on its website. After setting out the national requirements of what must be provided with full planning applications, the Council goes on to list what applicants may need to submit i.e. the local requirements. Under the heading ‘plans and elevations’ the Council says:
• the government document entitled By Design: Urban Design in the Planning System has drawn up a checklist of the types of plans that must be submitted with a planning application [emphasis added]; and
• that, amongst other things, when considering planning applications, the Council will require cross-sections ‘in the context of adjacent buildings, where appropriate, including annotations showing measurements of proposed buildings and dimensions to adjacent buildings on drawings.’
34. The government document the Council referred to does include checklists of what must be required and is what is likely to be required. However, in reference to cross section drawings, it says they should be provided if appropriate.

My findings

35. I will set out my findings in relation to each of Ms X’s concerns.

Impact on nearby homes

36. 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.
37. We are not an appeal body to judgements made by officers and Members and can only criticise a council if we can show the judgement was affected by fault. I have seen no evidence of fault in how this part of the decision was made.
38. Even if there had been evidence of fault in relation to this part of the Council’s decision, I think it is unlikely I would be able to show Ms X was caused a significant injustice. This is because of the distance her home (which does not face towards the site) is from the new building.

Absence of cross section drawings

39. The Council’s local validation list is confusing and ambiguous. It could be read in a way that implies cross section drawings are required, when government guidance makes it clear this is not the case.
40. The Council’s guidance should be accurate and unambiguous. It is not and this is fault. I can understand why Ms X and others might be confused as to whether cross section drawings are council required. I will recommend that it checks its local validation list guidance and corrects it as necessary.
41. As this is the second error/discrepancy that has been brought to our attention, I will also recommend the Council reviews its document checking procedures to ensure they are adequate.

Location of site notice

42. The Council sent a copy of the site notice and a photo of it attached to a lamp post. Ms X said she did not see it, because it was placed at the site entrance which is some distance from her home.
43. 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.

Inconsistent policies

44. The Council has already accepted it was at fault because its SCI and delegation scheme policy documents are inconsistent. The Council has agreed to resolve this problem and we are awaiting its response.

Landscaping scheme and existing trees

45. Ms X complains the case officer was not aware of existing trees before approving a landscaping condition. While case officers may identify existing trees and recommend that they should be retained, this is a matter for their discretion. Councils have the power to protect existing trees, if they consider this necessary. I know of no obligation on councils to check existing trees before considering landscaping schemes.

Choice of building materials

46. Councils often control the choice of building materials through use of planning conditions. Whether a particular building material is appropriate for its environment, is a matter for the Council to decide at its discretion.

Case officer comment relating to the size of building

47. The case officer expressed an opinion that the replacement building was of a similar size. Ms X said this was not true as the new building is much bigger.
48. This was an expression of the officer’s opinion, and by their nature, opinions will vary. This was not a statement of fact that we can decide was right or wrong. The Council had plans to show existing and proposed buildings and considered them before it made its decision and so had the information needed to consider how big the buildings were and what impact they might have on their environment. In terms of decision making process, I find no fault in the way the Council made this part of its decision.

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Agreed remedy

49. To remedy the injustice caused by the fault I have found, the Council has agreed to:
1. apologise to Ms X for any confusion caused by the ambiguous wording of its local validation list;
2. review the wording of its local validation list and correct it as necessary; and
3. review its planning policy document checking processes to ensure they are adequate.
50. The first part of the remedy will be completed within a month from the date of our final decision.
51. The second and third part of the remedy will be completed within three months from the date of our final decision.
52. The Council will inform the Ombudsman when each part of the remedy is satisfied and provide us with evidence it has done so.

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Final decision

53. I found evidence of fault that caused an injustice to Ms X. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman