Summary: Mrs X complained about the Council’s decision to approve a large storage facility on land near her home, which she feels affects her amenities. There was some fault in the way the Council made its decision (which it had already agreed to remedy) but this did not cause a significant injustice to Mrs X.

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.
2. Mrs X complained that:
• in their report, the case officer said the development was of similar size to the building it replaced, but this was not true;
• the Council’s Statement of Community Involvement (SCI) policy indicated the decision should have been made by the planning committee, but it was made by officers using delegated powers;
• the Council did not ensure that the Parish Council was aware of the application; and
• the case officer said the building material would be white cladding, but it is not.
3. Mrs X said the development has devalued her property. She would like the building to be demolished and for the Council to explain why it said the new building was the same size as the one it replaced.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. 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 gave Mrs X and the Council an opportunity to comment on a draft of this decision and considered comments I received before making a final decision.

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What I found

Planning law and guidance

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. 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.
12. Regulations set out the minimum requirements for how councils publicise planning applications.
13. 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.

What happened

14. The Council approved a planning application for development on land near Mrs X’s home.
15. 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.
16. 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.
17. The application was approved by another officer using delegated powers.
18. Most planning decisions are not made by committee, but by officers using delegated powers. Planning delegation schemes found in council constitutions set out how decisions are made.
19. Statements of Community Involvement (SIC) explain how the public can get involved in council decision making processes. They often refer to regulations and policy documents, including the Council’s delegation scheme.
20. In relation to another complaint we investigated about this application, the Council accepted it was at fault. This was because its SCI and delegation scheme policy documents are inconsistent.
21. 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 offered compensation for the uncertainty its error may have caused to residents who complained about this issue.
22. The Council has agreed to resolve this problem by correcting the discrepancy between the two policy documents, and we are awaiting its response. We did not find that, but for this fault, the outcome would have been different, so we did not recommend financial compensation.
23. Mrs X said she has been told that Parish Council members were not provided with IT equipment to access planning applications during COVID lockdown.

My findings

Case officer comment relating to the size of building

24. The case officer expressed an opinion that the replacement building was of a similar size. Mrs X said this was not true as the new building is much bigger.
25. 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 the decision making process, I find no fault in the way the Council made this part of its decision.

Decision not made by committee

26. We have already found fault in relation to this issue during another investigation about the same planning decision.
27. Though we found fault because there was a discrepancy between two policy documents and agreed a remedy with the Council to resolve the problem, we did not find the outcome would have been different. We are waiting for the Council to confirm it has implemented our recommendations.
28. My view remains the same on this issue in relation to this complaint. The delegation scheme is the key policy document that shows how decisions should be made, and the Council’s decision was consistent with it. Because of this, I cannot say the fault we found shows the decision should have been made by planning committee.
29. In these circumstances, I make no recommendations regarding financial payments.

Town Council consultation

30. Before deciding whether to investigate this part of the complaint further, I would need evidence to show the Council (Bolton MBC) was at fault and that the fault made a difference to outcome.
31. Mrs X said the Council (Bolton MBC) was responsible for funding the Town Council. This may be so, but I have seen no evidence to suggest the Council was responsible for ensuring the Town Council had adequate IT equipment during the COVID lockdown.
32. Even if we found evidence of fault, I would need evidence to show it is likely to have made a difference to the outcome. I have not seen any evidence that suggests this. Mrs X said a committee might have made a different decision. We need evidence to show that on balance of probabilities, the outcome would have been different. I accept that a committee might have decided differently, but I cannot prove this or speculate. On balance, we cannot know that a committee would have made a different decision.

Choice of building materials

33. Before it made its planning decision, the Council considered this issue and decided to deal with it by imposing a planning condition. There is nothing in the case officer’s report to indicate a particular colour must be chosen. The developer submitted details of materials and the Council decided they were acceptable, so discharged the planning condition. The Council followed the decision making process we would expect. Whether a particular building material is appropriate for its environment, is a matter for the Council to decide at its discretion.

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Final decision

34. I completed my investigation, because although there was some fault in the way the decision was made, it did not cause a significant injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman