Summary: There was no fault by the Council. Details of a play park and paths to be located on open space adjacent to her house were available to Mrs B. The Council complied with the law and its own policy when it notified residents of the plans, and Mrs B had the opportunity to make representations before the Council granted permission. Also, the Council considered the impact on residents.

The complaint

1. Mrs B complains that the Council failed to:
• make available plans for the land next to her new house to be developed as a play park and the pedestrian path, despite enquiries by her and her solicitor before and after she purchased her house.
• properly consider the impact of the play park and pedestrian path on the use of Mrs B’s home.
2. The play equipment is very close and allows views into Mrs B’s living room and bedrooms. There is a path that runs alongside and close to her boundary. This is impacting on Mrs B’s privacy and causing her distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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

5. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I took account of the comments before issuing my final decision.

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What I found

The law and guidance

6. Councils are required to publicise planning applications.  The publicity required depends on the nature of the development and the council’s own policies. In all cases the application must be published on the council’s website. In this case, the Council’s ‘Statement of Community Involvement’ also required a site notice, publication in a local newspaper, and neighbour notification
7. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.
8. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise. It is for the Council to decide the weight to be given to any material consideration in determining a planning application.
9. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
10. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

What happened

11. In 2011, the Council granted outline planning permission for a major development. It included housing and open space. The illustrative master plan showed the residential area adjacent to a linear park with a play area, footpaths and cycle paths. The developer’s design statement also said that no house would be more than 100 metres from a play area. The Council had publicised the application via its website, a notice in the newspaper, a site notice and
12. In January 2018, the developer submitted the reserved matters application. The plans showed the play area, linear park with footpaths and a trim trail (an obstacle trail). The trail and one of the paths is on the open space adjacent to Mrs B’s house. The closest part of the trim trail to Mrs B’s house is the overhead rings. The position of these were shown in the plan. Mrs B she did move in until August 2018.
13. The Council notified the current occupiers of the adjacent houses, and also notified the housebuilders so that prospective buyers would be aware that there was a pending application. The application details was also added to the Council’s website and it put up a site notice. Various changes were made to the application but these did not change the details of the trim trail or the proximity of the nearest footpath.
14. In July 2018, Mrs B’s solicitor conducted a local land charge search. The Council says that the solicitor did not ask it for details of reserved matters planning permission, but the relevant details were available on the Council’s website. The search result gave Mrs B details of all the relevant planning permissions. To my reading, it did not give details of the pending reserved matters application. Mrs B bought the house and moved in August 2018.
15. In June and October 2019, the reserved matters application was still under consideration and the developer submitted revised plans. This again showed the position of the overhead rings and the trim trail as well as the footpaths closest to Mrs B’s home. The rings are 13 metres from the frontage of Mrs B’s home, with a hedge between them and her boundary. They are at an angle so they do not directly face front windows. The closest footpath is seven metres beyond Mrs B’s front garden.
16. In response to my enquiries, the Council has explained that the layout and siting of the housing adjacent to the open space is such that the frontages are open and visible from the open space, in the same way as the front gardens facing a street are visible. The rear garden and rear facing windows are private and screened from open view with, not overlooked from the open space or public areas.
17. The Council’s records show that it notified Mrs B of the new plans in June 2019. However, the Council did not receive any representations from any residents about the siting of the play equipment or the footpaths.
18. The reserved matters application was considered in full by the planning committee in January 2020. The Council granted planning permission in 2021 (delayed to put a planning agreement in place).
19. The Council has explained that it considered the impact of the open space and the play area when it determined the reserved matters application. However the details of the design were not a principal issue in its decision to grant planning permission and it did not address this directly in the committee report because it had not received any representations on the issue.
20. The committee report did however set out the Council’s assessment of the open space and it being part of the development was a principal consideration.
• The Council’s landscape officer did not identify any harmful impact from the play equipment, but did say that the paths should be carefully considered in relation to the housing.
• The Council considered how usable the open space would be, and what planting or other treatment there would be of the boundary with the residential area. Overall, the Council officers considered that the open space element of the development to be acceptable.
21. In her complaint to the Council and the Ombudsman, Mrs B said:
• In April and May 2018 she had researched the development and she understood there were no detailed plans for the park.
• In July 2018 her solicitor made local authority searches. Mrs B understood that the solicitor asked for the planning agreement but this was not forthcoming and the Council told them it had no further plans to share.
• She says she asked again in 2020 and 2021 about plans, and was told that work would start soon, but was given no detail. It was only when work started in January 2022 that Mrs B realised the trim trail and path would be so close.

Was there fault by the Council?

22. It is very unfortunate that Mrs B did not realise that some of the equipment would be on the open space adjacent to her house, or that it would impact on her. The open space and linear park was part of the 2011 outline planning permission and so Mrs B and her solicitor would have been aware of that.
23. The details of the trim trail (the part nearest to Mrs B’s house), were set out in the reserved matters application and added to the Council’s website in January 2018. The Council also went beyond requirements and notified the housebuilders so that future owners might be aware. These plans too would have been available for Mrs B or her solicitor to check before purchase.
24. The Council has confirmed that searches of the local land charges register do not reveal pending planning applications. For this a purchaser has to make wider enquiries (on a standard form). Mrs B’s local search would not have included the reserved matters application as this was pending. The Council said it did not receive any wider enquiries about pending planning applications.
25. Although the plans changed, the positioning of the trim trail and the proximity of the path did not. The Council’s records show that it notified Mrs B of the changes but it did not receive any representation from her about this.
26. Mrs B has sent me some information that shows the vendor’s solicitor did not disclose the pending application. It also shows that there was no information at the time of the purchase about a planning agreement (known as a section 106 agreement). This type of agreement often includes details of play areas and public space that the developer must provide. However as I have said, in this case, the details of the trim trail and the footpaths were set out in the reserved matters application and were available to Mrs B and her solicitor. The Council and the developer did not complete the section 106 agreement until 2022, and so it was not available when Mrs B bought her house. They did not need the planning agreement to be in place to see the proposed details of the park.
27. Although Mrs B says she asked Council employees for more details, there appears to be no record of this, or that her MP sought this on her behalf.
28. There was no fault by the Council in how it notified residents of the plans for the open space. The Council complied with the law and its policy when it notified residents, put up site notices, and made sure the details of the outline and reserved matters application were on the Council’s website.
29. I have also looked at whether the Council properly considered the impact on Mrs B’s amenity when it granted permission for the trim trail and footpaths. The details of both were clear and so the Council was fully aware of the locations, and how these related to the adjacent houses. It has explained that it took into consideration the use of the site and did not consider that the impact would be harmful.
30. Mrs B does not agree with the Council’s assessment of the impact of the public space on her use and enjoyment of her house. Mrs B has sent me some photographs of the proximity of the trim trail and the path to her house. I appreciate that these are nearby and that people using the space may be able to view the front and side of the house. However, this was clear to the Council and it has explained that it protected the rear gardens as private space.
31. The Council considered all the relevant factors and there was no fault in how it reached its decision to grant planning permission.

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Final decision

32. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman