Summary: Mrs X complained about the Council’s decision to approve a planning application on land next to her home and business. We ended our investigation because it was unlikely to result in a finding of fault, a remedy for Mrs X or any other meaningful outcome.

The complaint

1. Mrs X complained about the Council’s decision to approve a planning application on land next to her home and business.
2. Mrs X said the development will cause noise that will affect her amenity and damage her business.
3. Mrs X would like the Council to re-imburse her costs, which included an acoustic report from an expert. She would also like the Council to vary a planning condition to reduce the operating hours for her neighbour’s business.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, 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), as amended)

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How I considered this complaint

5. 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.
6. I gave Mrs X and the Council an opportunity to comment on a draft of this 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. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer 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.
12. 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.
13. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ uses, which means a use that is ‘of its own kind’ or ‘unique’.
14. Planning permission is usually required to change a use from one class to another.

Environmental health law and functions

15. Councils have statutory power to enforce environmental protection measures in their areas. They can control nuisance caused by pollution, from things like noise, dust, smoke and odour by issuing abatement notices.
16. Environmental health officers may also provide advice to other council departments, including advice on planning applications about what the impact a development or land use might have on the environment. They may recommend planning conditions to protect public amenity.

What happened

17. Mrs X’s neighbour applied for planning permission to construct a large building to use for light industrial purposes.
18. Mrs X lives and operates a business on land next to the site. The application was publicised, and Mrs X and others objected to the proposal. Mrs X’s main concern was that machines used inside the building would cause disturbance that would affect her amenities and damage her business.
19. The Council’s planning case officer wrote a report setting out their analysis and recommendations for the Council’s planning committee. The report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• a summary of comments from neighbours and other consultees, including an environmental health officer;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including the impact on the surrounding area, on residential amenities, and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
20. The application was considered by the Council’s planning committee, which decided to approve it subject to conditions, several of which related to noise mitigation.
21. Mrs X was unhappy with the Council’s decision and made a complaint that was considered through the Council’s complaints procedure. Amongst other things, she complained that:
• the Council’s decision did not accord with policy on the local plan;
• that issues in two acoustic reports (one submitted by the applicant, the other by Mrs X) had not been properly considered;
• she had been put to unreasonable expense in having to present her objections;
• the noise conditions were inadequate; and
• the decision set an unwelcome precedent.
22. The Council did not uphold Mrs X’s complaint. It said that:
• criticisms she made about the case officer’s report mostly related to an earlier draft, that had been revised and superseded;
• the case officer report set out relevant policy and it was up to the committee to decide what weight to give to each planning consideration;
• it had considered both acoustic reports and the decision to commission and submit her own report was a choice Mrs X had made;
• it disagreed the conditions were inadequate, and the committee had decided they were necessary and reasonable; and
• no precedent was set, as each application is decided separately on its own merits.

My findings

23. 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.
24. 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?
25. 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.
26. 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.
27. I should not investigate further and my reasons are as follows:
• Before it made its decision, the Council considered the application plans, comments from the public and other consultees, relevant policy and material submitted during the course of the application, including expert reports. This is the decision-making process we expect, and so further investigation is unlikely to result in a finding of fault.
• Even if we found fault, we are unlikely to recommend the remedy Mrs X wants. We are not a planning appeal body, so cannot require the Council to vary its planning conditions. We also only recommend compensation for professional fees, if there was little or no choice other than to incur them, before complaining to us. It was Mrs X’s choice to seek professional acoustic advice. If we decide we need professional advice during an investigation, we can seek it ourselves.

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Final decision

28. I ended my investigation as it was unlikely to result in a finding of fault, a remedy for Mrs X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman