Summary: We found some fault on Mr N’s complaint about the way the Council considered and approved a planning application for a development on recreation ground. The planning officer’s report failed to refer to the total number of parking spaces applied for, but this caused no injustice. The Council failed to follow its own complaints procedure. The agreed action remedies the injustice caused.

The complaint

1. Mr N complains about the way the Council considered and approved a planning application for the building of an electric radio-controlled car racing track on a local recreation ground along with the siting of a shipping container for storage because it failed to:
1. properly process the application;
2. prepare an accurate planning officer’s report for the planning committee;
3. properly consider all representations received;
4. lease the land for a reasonable sum;
5. consider whether a contamination report needed submitting;
6. consult the county council’s highways team;
7. properly consider noise from the site and whether a noise assessment was needed;
8. impose planning conditions limiting the number of attendees at the venue or restricting car parking; and
9. act impartially when processing the application.
2. As a result, these failures caused him a great deal of stress and anxiety.

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The Ombudsman’s role and powers

3. 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)
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 there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered all the information Mr N sent, along with the Council’s response to my enquiries. I sent a copy of my draft decision to Mr N and the Council.

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What I found

7. Mr N is unhappy with the way the Council dealt with an application for an electric radio-controlled racing track on a section of recreational land it owns, along with the siting of a shipping container for storage. It received and approved the application in 2022.
8. When notified of the application, Mr N sent the Council his representations. These set out is concerns which included:

• harm to residents’ amenities, particularly from noise. He believes the Council failed to properly consider the impact of noise and should have asked for a noise impact assessment;
• the impact the shipping container and rostrum would have on the character and appearance of the area;
• an increase in traffic using the local roads and limited car parking at the site; and
• lack of toilet facilities on site.

9. When the Council gave consent to the application, Mr N complained. The Council did not uphold his complaint and so he came to us.
10. I now consider each of Mr N’s complaints:

Report accuracy

11. Mr N complains about inaccuracies in the planning officer’s report. These include:

• The number of parking spaces available: The planning officer’s report referred to 20-25 parking spaces positioned on the grass along three sides of the proposed racetrack. The plans show 37 spaces.

The Council said it was usual to take the submitted plans at face value unless there were clear discrepancies. It received an amended plan before any decision on it which increased the site area to include parking spaces. The application form was not updated. It also said it decided the application on the amended block plan which shows proposed parking spaces. A total of 37 spaces were shown but written on the plan, the applicant said 20-25 vehicles only were expected.

• The size of the site: The Council confirmed the planning officer was aware of the increase in size which is mentioned in the report to the committee.

My findings

12. I consider the report should have set out the correct amount of parking spaces proposed which was 37. This is what the applicant had shown on the plans. The report should have gone on to explain the applicant expected to use only 20-25 of the spaces at events.
13. While this was fault, I am not satisfied it caused Mr N an injustice. This is because the planning officer and the planning committee were aware of what the applicant had applied for from the submitted plans. These were before the committee when it reached its decision.
14. I found no fault on Mr N’s complaint about the size of the site. I am satisfied both the planning officer and the planning committee were aware of its correct size. This is because the amended plans showing the car parking spaces were sent to the Council a month before the committee reached its decision. The planning officer’s report also contained a location plan showing an outline of the entire site area.

Land contamination

15. Mr N complains the Council failed to consider possible land contamination of the site.
16. The Council confirmed while it was claimed the land’s previous use was refuse tipping, it decided a contamination report was not justified or proportionate in the circumstances.
17. The Council also confirmed environmental health were consulted on the proposal but did not comment specifically on contaminated land.
18. Mr N sent me photographs of three blue cylinder structures he says were since installed on the recreation site to measure land contamination. He claims a councillor told him they were for contamination testing.
19. When asked about these, the Council said they contained gas monitoring stations. They were in place between May and June 2022 as part of a ground Gas Assessment and Phase II Geotechnical Assessment carried out on the Council’s behalf. They were done because the local cricket club wants to build a cricket pavilion on site in the future. It also got consent for a temporary changing facility on site. This was all after the Council approved the application Mr N complains about.
20. The Council explained at the time of the racing car application, it had already contracted two contamination related assessments. There was a preliminary ground contamination risk assessment done in March 2021 (report A) and a Quantitative Ground Contamination Risk Assessment done in July (report B). it got these reports to show the land posed no threat to users of the recreation ground along with assessing the feasibility of the proposed racing track and cricket facility.
21. I have seen copies of these reports. Report A explained it was done because the Council wanted to look at providing new sports and recreational facilities at this site. It referred to the option of a remote-control car facility on site. It concluded the overall level of risk to proposed outdoor users of the site was low but, there was a potential risk from ground gases to enclosed structures. It recommended an assessment of current topsoil by way of shallow pits dug to depths of 0.5 metre below ground level along with 48 boreholes to allow further investigation.
22. Report B explained its assessment was done to quantify the potential risks identified in report A. It carried out a series of shallow trial pits to get samples of the top soil and capping layer. ‘Capping’ is a common practice for landfill sites. It involves placing a cover over contaminated material. This isolates contaminants and avoids the spread of contamination. Capping helps people and wildlife avoid contact with contaminants.
23. The report noted there was nothing to show the boreholes met landfill material. The results found low level concentrations of contaminants within the samples. It concluded concentrations in the capping layer soil posed less than a ‘low level of toxicological concern’. The level of risk was considered acceptable for the proposed use of the site.
24. Reports A and B were both done before the controlled racing car application.
25. I have also seen the Ground Gas Assessment and Phase II Geotechnical Assessment (report C) done in July 2022. This looked at the site in terms of its possible development. The development proposed was a temporary container unit used as a cricket pavilion and changing rooms with the possibility of a permanent one in the future. The assessment involved sample boreholes as well as using gas monitoring instruments and some soil sampling. It found some potential risk from ground gases and vapours to structures and made recommendations for the proposed cricket facilities.

My findings

26. While the application form submitted to the Council said the applicant did not know the land was contaminated, it went on to say it was suspected. This should have alerted the Council to contamination as a possibility and raised this as a potential issue with environmental health.
27. There is no evidence, despite what the Council claimed, of it consulting environmental health about the possibility of land contamination. This is fault. This explains why neither of its consultation responses make any reference to contamination at all.
28. On balance, I am satisfied the issue of possible contamination was not properly considered. Although this is an outdoor activity, the proposed fencing and rostrum wooden stand could have caused some exposure to contaminated material during construction.
29. While this failure is fault, I am not satisfied it caused Mr N an injustice. This is because although the planning officer’s report made no reference to contamination, the Council had obtained two reports the previous year to look at this very issue. Neither report found evidence showing a significant risk to health from contaminants. This was even after 0.5 metre boreholes, which would be a similar depth needed for fence posts.

Representations

30. Mr N claims the planning officer and planning committee failed to take account of representations. The Council disagreed saying the planning officer’s report took account of all those received. Members of the public also told the committee their objections at the meeting.
31. The Council confirmed all representations received were summarised within the report and discussed within it.

My findings

32. I found no fault on this complaint. The planning officer’s report to the committee referred to the representations received and summarised them. It also said the comments could be viewed in full.
33. I am satisfied the committee was aware of all the representations for this application. The committee was required to consider those which raised valid material planning considerations and give them the appropriate weight.

Noise assessment

34. Mr N also complains the Council failed to carry out a noise assessment.
35. The Council again said environmental health were consulted which advised the proposed use would not present a significant noise issue. The planning officer’s report assessed the proposal’s impact on residential amenity. It referred to what the applicant said in supporting information sent with the application. This said electric cars would generate very little noise. They are electrically powered, very quiet, with zero emissions, with the track positioned close to the road which is the biggest source of noise at the site. The report noted environmental health were consulted and had no concerns.
36. The report also pointed out the existing recreational use of the site generates some noise anyway when football or cricket is played. It also noted the ‘significant distance’ the site was from any neighbouring property.

My findings

37. I found no fault on this complaint. The environmental health team was consulted and decided the proposal would present no significant noise problems which the committee considered. While Mr N may disagree with this conclusion, it was one it was entitled to make. We cannot challenge a properly made decision.

Site access and on street parking

38. Mr N complained the Council failed to properly consider access to the site as the plans show no route to the parking area.
39. The planning officer’s report noted the site is served by an existing vehicular access and traffic speeds along the lane are low. The use of the site should not increase hazards on the highway. There is enough space on site for vehicles to park and turn. The proposed space is enough for the number of vehicles attending meetings.

My findings

40. I found no fault on this complaint. This is because the committee was aware of the site’s access and number of parking spaces on site. The applicant indicated fewer cars were likely to visit the site than the number of parking spaces proposed. This means it is unlikely cars visiting would need to park on the street.

Low rent

41. Mr N is unhappy with the Council’s decision to charge the applicant £1 a year to lease the land. He believes this breaches its legal duty to get a reasonable price.
42. The Council explained it set the low rent because the lease is only for 18 months. There is a three-month break option which means the tenant has no security of occupying the site. The permitted use of the site is limited to specific hours and the planning consent is limited to two years, with no guarantee of renewal. In addition, the tenant is responsible for all costs involved, such as the fencing and other works needed to comply with consent. The Council took account of the risk the tenant had, and the lack of any guarantee of renewal, when deciding the rent level.
43. Mr N referred to section 123 of the Local Government Act 1972 which required the Council not to dispose of land for less than it could reasonably get in the market without the consent of the Secretary of State. He considered the Council failed to meet this duty because of the extremely low rent it is charging.

My findings

44. I found no fault on this complaint. Section 123 (2) of the 1972 Act states consent of the Secretary of State is needed unless it is a disposal by way of a ‘short tenancy’. The Act goes on to define a short tenancy as a ‘grant of term not exceeding seven years’ (section 123 (7)).
45. I am satisfied the Council did not need consent from the Secretary of State for the below market rent it charged.
46. I am also satisfied the Council took several factors in to account when deciding the rent level. This is a decision the Council was entitled to make. Again, we cannot challenge a properly made decision.

Toilet provision

47. Mr N is unhappy with the lack of toilet provision on site which he believes the Council overlooked.
48. Following objections, environmental health provided further comment. This noted absence of toilet provision was a consideration but, ‘is not particularly unusual for sites with occasional recreational uses’. It noted the existing use of the site for football and cricket without public toilets. The nearest public toilets were one mile away.

My findings

49. I found no fault on this complaint. When the committee considered and decided this application, it had the comments from environmental health before it. Toilet provision was a consideration when determining the application. The committee considered it and decided the lack of provision did not justify refusing the application or imposing a condition about it.

Numbers attending

50. Mr N believed the Council failed to restrict the numbers who could attend events. The Council said the committee considered this would not have been enforceable. The number of visitors is limited by the size of the track and number of parking spaces.
51. The planning officer’s report referred to the applicant sending further clarification about attendance and days/hours of operation. It explained it would be used on a Sunday morning for a maximum of five hours and one weekday evening during the summer. The applicant expected 15-25 competitors attending at any one time.
52. The report stated it was essential to impose conditions to manage the use and operating times. It recommended a condition setting out the permitted days and times the site could operate.

My findings

53. I found no fault on this complaint. The National Planning Policy Framework says planning conditions should be kept to a minimum and only be imposed where they are necessary, relevant, enforceable, precise, and reasonable. (paragraph 56).
54. I have read the applicant’s clarification sent before the committee decided the application. This said the average outdoor club meeting would attract between 15-25 competitors and perhaps 30 at a busy meeting. Outdoor meetings attract fewer competitors than indoor ones.
55. The committee decided not to impose any condition limiting the number of visitors to the site. The information from the applicant about likely visitor numbers was before the committee when it reached its decision. In addition, the committee would have to be satisfied that imposing such a condition was necessary, relevant, enforceable, and reasonable. I am satisfied the committee properly considered this and decided it was unenforceable.

Conflict of interest

56. Mr N believes the Council preparing the plans for the applicant is evidence of a conflict of interest it had when deciding this application.
57. The Council told him the application went to the planning committee because this was a Council planning application. Mr N correctly pointed out it was not a Council application, but one made by an independent club.
58. In response to my enquiries, the Council confirmed it prepared the site location plan and block plan for the application. All other documents were produced by the applicant. The Council explained why it prepared them. It owns and manages the site for the use and enjoyment of the community. This means any changes, or changes in its use, need considering first by its neighbourhood services team. Other plans were needed to get cabinet approval in principle for the facility back in early 2021 along with consent from Fields in Trust for the granting of the lease and for the lease itself. The Council decided it was best placed to do this.

My findings

59. I considered the legal position of the Council as owner of this site. I have also considered what it said about needing to prepare the location and block plan for the site. I am satisfied it was in the Council’s interest to ensure it prepared these, so they accurately showed the extent of the land it owned and the land the applicant wanted to develop and lease.
60. I am not satisfied the Council carrying out this work amounts to fault.

Highways authority

61. Mr N complains about the lack of consultation with the highways authority on this application.
62. The Council explained the limited number of hours of operation meant it was not proportionate to seek its views. An existing access was to be used with adequate parking provision on site.

My findings

63. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (Schedule 4) sets out who must be consulted before planning consent is given.
64. The highways authority is a statutory consultee for specified development having an adverse impact on trunk roads, for example. A trunk road is defined by sections 10 (1) or section 19 of the Highways Act 1980. It is a major road designated by National Highways as a route of strategic importance. It would also be consulted where the proposal would be likely to lead to a material increase in the volume, or a material change in the character, of traffic entering or leaving a classified road.
65. The duty to consult excludes minor development. A minor development includes a site of less than one hectare. (The Town and Country Planning (Development Management Procedure) (England) Order 2010).
66. I found no fault on this complaint. I am not satisfied the Council had to consult the highways authority for several reasons. Firstly, it is unlikely the road leading to the site is a trunk road. Secondly, the Council considered the possible impact of this proposal on highway safety. It considered policies under its Core Strategies. It considered existing traffic speeds of the existing vehicular access, the adequacy of on-site parking, and the proposed site usage and the small number of visitors likely to attend. Thirdly, the site was under one hectare. I am satisfied it was entitled to reach this decision.

Complaints procedure

67. He later complained about the time taken for the Council to deal with his complaint. The Council accepts its first stage response failed to tell Mr N about proceeding to its second stage and how he can complain to us. The officer who wrote to Mr N was relatively new to the Council and was made aware of a full letter template to use in the future.
68. Mr N complained to the Council on 16 March 2022. After acknowledging it the same day, the Council only responded to it on 17 May following a further email from Mr N chasing a response. This response did not uphold his complaint. Nor did it explain he could take the complaint to the second stage of its complaints process or complain to us.
69. Three days later, Mr N asked the Council to take his complaint to the next stage. The Council responded on 26 May saying due process had been followed, it had found no fault, and this was its response to his request for it to escalate his complaint. Mr N queried whether the Council was to take no further action on it and received a short reply confirming that was correct.

My findings

70. The Council’s complaints procedure includes:

• The initial stage/stage 1: Complainants are advised they will receive a response within 20 working days. An officer will call the complainant and try and resolve it informally but otherwise investigate it as the first stage of its complaints procedure. The full response under this stage is sent explaining the next stage of the complaints process.

The Council failed to send its response within 20 working days. It missed this target by 24 working days. It also failed to signpost Mr N to the next stage of its complaints procedure.

• Stage 2: When a stage 2 request is received, an acknowledgement is sent, and the complainant is told to expect a full response within 20 working days. The full response at this stage will include a reference to us should they consider it needs further review.

The Council failed to provide Mr N with a full response under the second stage of its complaints procedure. This also meant Mr N was unaware of his right to bring a complaint to us.

71. I am satisfied these failures amount to fault. I am also satisfied these failures caused Mr N an injustice. He suffered distress as he had the frustration of not having his complaint dealt with properly, was not signposted to us, and had the inconvenience of chasing the Council for a response.

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Agreed action

72. I considered our guidance on remedies.
73. The Council agreed to carry out the following action within four weeks of the final decision on this complaint:
1. Send Mr N a written apology for its failure to deal with his complaint according to its complaints process.

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Final decision

74. I found fault on Mr N’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman