Summary: Mr C complained about the Council’s handling of a planning application for a development next to his home, and how it responded to his concerns. We found no fault in the way the Council reached its planning decision. Nor, its view Mr C had to raise his concerns through its corporate complaints process. However, the Council failed to respond to his concerns about disposal of alleged Council land outside the planning process. The Council has agreed acknowledge its misunderstanding to Mr C and respond to this concern.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained about the Council’s handling of a planning application next to his home. He said it:
• failed to properly consider objections against the planning application and to take into account or give proper reasons for not following the relevant law, policy or guidance;
• made a decision based on inaccurate, incomplete or irrelevant planning considerations and raised concerns about bias by the Council; and
• attached conditions to the approved planning application which were not properly considered.
2. Mr C also said the Council should have responded to his concerns and questions after the Planning Committee’s decision, rather than requiring a formal complaint.
3. As a result Mr C said he experienced distress and uncertainty, three trees were at risk of damage, and public access and a right of way for an electrical substation was impacted.

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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 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

6. As part of my investigation, I have:
• considered Mr C’s complaint and the Council’s responses;
• discussed the complaint with Mr C and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law, guidance and policy to the complaint.
7. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

8. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
9. 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.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
11. Government statements of planning policy are material considerations.
12. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Non-Material Amendments

15. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
16. If the Council decides the changes are ‘material’, it may require the whole or part of the process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process, but only if:
• it considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make; and
• the nature of the application remains the same, so the amended proposal is still substantially the same as the original.
17. This type of amendment is known as a non-material amendment. There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and a matter for the Council to decide.

Trees

18. Councils must ‘ensure, whenever it is appropriate, that in granting planning permission for any development adequate provision is made, by the imposition of conditions, for the preservation or planting of trees’ (Section 197 Town and Country Planning Act).
19. The British Standard 5837:2012, ‘Trees in Relation to Design, Demolition and Construction’, is a publication which sets out best practice for use in development. It is not a requirement that Councils follow it though it represents best practice. It recommends for:
• an arboriculturist to record information about existing trees on or adjacent to a site to inform whether steps should be taken to protect trees. This is normally though a Tree surveys and Protection plans; and
• planning authorities should not rely on planning conditions to secure a tree survey as by this stage it may not be able to influence the design.

What happened

20. Mr C lives in an area which compromises primarily of single-storey bungalows and two-storey houses.
21. The Planning Inspector considered a proposal for a development on Mr C’s neighbour’s land. This was for replacing two-bedroom bungalow with a three-storey flat roofed building consisting of five flats. The Inspector refused the proposal as its size and appearance in the street scene would not be acceptable in comparison to surrounding properties.
22. In 2022, the Council received a new planning application from Mr C’s neighbour. The proposal was to demolish the existing bungalow and replace this with three two-storey detached houses.
23. The Council placed a site notice and sent letters to neighbour’s, including Mr C. It also consulted with statutory consultees such as the Highway authority.
24. Mr C and other neighbours made representations against the planning proposal. The Council also received supportive comments, all of which were made after the published deadline.
25. Mr C also raised concerns to the Council that the planning application had no Arboricultural survey or mention of trees. He believed the proposed development would impact a large tree on the public pathway, a tree in his garden, and a tree in a neighbouring garden.
26. The Council’s Arboriculturist visited the site and found there was a need for an Arboriculture Impact Assessment and a Tree Protection Plan as there was a risk of damage to the large tree on the public pathway. He recommended this should be assessed at the application stage, and not only as a planning condition.
27. The Highway Authority raised no objections but commented an oversail licence may be required based on the proposed plans as windows and balconies may overhang the public footpath.
28. The Council raised some concerns with the planning applicant and asked for the large tree on the public path to be annotated on the plans with the approximate location.
29. Shortly before the Planning Committee considered the planning application, the applicant made some amendments to the proposal. This was in response to the concerns which had been raised about tree protection. The amended proposal moved the development slightly forward to increase the root protection area of the large tree on the public footpath and the removal of a parking space to create further soft landscaping, but with no change in the overall footprint.
30. The Planning Officer’s report recommended approval of the planning application subject to conditions.
31. Mr C and the local ward councillor attended the Planning Committee meeting and made in person representations against the planning application. Their concerns included the impact on neighbouring amenity and trees, access to an electrical substation, errors in the validation documents and plans, and land ownership. However, the Committee approved the planning application subject to conditions.
32. Mr C subsequently asked the Council about the planning approval. This included why the condition relating to trees did not list the trees adjacent to the site in line with the British Standard 5837:2012, and the legal requirements of an oversail licence for the development overhanging the public footpath.
33. The Council told Mr C he would need to raise a complaint regarding his concerns.

Mr C’s complaint

34. I have summarised below the key parts of Mr C’s complaint. This is not intended to be a detailed account of each and every point.
35. Mr C complained to the Council it had:
• failed to properly consider objections against the planning application and to take into account or give proper reasons for not following the relevant law, policy or guidance;
• made a decision based on inaccurate, incomplete or irrelevant planning considerations, and raised concerns about bias by the Council; and
• attached conditions to the approved planning application which were not properly considered.
36. Mr C also said the Council should have responded to his concerns and questions after the Planning Committee’s decision, rather than requiring a formal complaint.
37. In response the Council did not uphold Mr C’s complaint. It found it had properly considered Mr C’s representations, the relevant law and local policy, and it had the relevant information to reach a sound decision on the planning application. It also found:
• no evidence of bias by the Council or its officers;
• the planning conditions attached to the application were appropriate to mitigate the impact to trees, which its Arboriculturist and Planning Committee had agreed to;
• its Highways officer had inspected the site. He found an oversail licence was not required as larger vehicles could not access the public footpath, and the overhang from the development would be minimal; and
• it had decided not to respond to Mr C’s questions as the best way to address the amount of these and the concerns he raised was through its complaints process.
38. Mr C has since been in contact with the company who owns and manages the electrical substation. He says it has a right of way to with vehicular access along the public footpath. He is concerned its ability to manage the power supply may be a risk for local residents.
39. Mr C was not satisfied with the Council’s response, he asked the Ombudsman to consider his complaint.

Analysis and findings

Was there fault in how the council publicised and consulted on the application?

40. The Council publicised the planning application on its website, put up site notices and sent letters to relevant neighbours, including to Mr C. It also consulted statutory consultees.
41. The representations for and against the planning application was available on the Council’s website. It is clear these included representations made after the deadline to comment.
42. I have not found fault in how the Council publicised and consulted on the planning application. It did so in line with its Statement on Community Involvement and Government Guidance on ‘Consultation and pre-decision matters’.
43. Also, while the planning applicant submitted amended plans for the proposal shortly before the Planning Committee meeting. The Council considered the amendments and was entitled to reach its view the proposed changes were non-material. I found the Council was therefore not at fault, as it was not required to re-publicise the amendments for comments.

Was there fault in how the Council considered the planning application?

44. We are not a planning appeal body and so cannot evaluate the planning considerations and offer a view on what planning decision should have been made. Our role is to review the process by which planning decisions are made and look for evidence of fault that causes a significant injustice to the individual complainant.
45. I acknowledge Mr C disagrees with the Council’s decision to approve his neighbour’s planning application and believes it failed to follow the required process. However, I have not found fault in the process the Council followed to reach its decision. This is because before the planning decision was made, the Council and the Planning Committee took account of:
• National planning guidance and the Council’s Local Plan and relevant policies, which was set out in the Officer’s report;
• the previous planning history for the site and surrounding area, including the Planning Inspector’s previous refusal of a different proposal on the site;
• relevant statutory consultees’ comments including the Local Highways Authority which had no objections;
• Its Arboriculturist recommendation for tree protection in line with British Standard 5837:2012. However, it found a condition was sufficient to protect adjacent trees, as the Planning Inspector had not previously found concerns about trees and the development was placed further from the root protection area;
• the representations it received for and against the planning application, including those received after the deadline to respond;
• the layout, height, scale, and appearance of the proposal on the street scene, parking and neighbouring amenity, including living conditions for future occupants;
• the construction of the development and the impact on neighbours; and
• the amendments to move the development further forward on the site with no change in the footprint. It reached the view this was not a material amendment which required further consultation.
46. The recording of the Committee meeting shows there were differing views and concerns about the development. However, each of the concerns raised were considered. The Committee had the opportunity to seek further clarification, but was satisfied there was enough information to reach its view. I cannot therefore criticise the outcome.
47. In addition, Mr C also raised concerns about ownership of a small part of the land which the planning application relied on. The Committee considered this, and correctly decided land ownership was not a material planning consideration which it could consider. If indeed, the Council or another party does own part of the land, such matters are private issues which is outside the planning process.

Were the planning conditions properly considered?

48. The Council was entitled to impose planning conditions it found necessary to ensure the development was in line with the approved plans, its local policies and to mitigate the impact on neighbouring amenity during the development.
49. The Council’s condition required for the planning applicant to provide an Arboricultural Impact Assessment and a Tree Protection plan for approval by the Council before works on the development commenced. This was to protect the trees, shrubs and hedges within the site.
50. Mr C raised concerns the condition failed to protect adjacent trees, as the condition only refers to trees within the site.
51. While I agree, the condition could have been phrased clearer, I have not found the Council at fault. This is because the condition can only relate to the trees and roots which are within the boundary of the development. The condition, along with the planning documents, makes it clear this also relates to the roots within the site from trees outside the application boundary.

Was there bias by the Council or its officers?

52. Mr C raised concerns about bias by the Council and its officers in how it had worked with the developer, the Officer’s Report and how it reached its view.
53. I not found evidence of bias by the Council or its officers. In reaching my view, I am conscious:
• the Council has a pre-application advice service for planning applicants, and it is normal practice for planning officers to be in contact with applicants to discuss the proposals and clarify concerns;
• the Officer’s report comments several objections were received from the same email address. However, it is normal practice for officers to bring such observations to the attention of the Planning Committee. It was thereafter up to the Committee to decide what weight to apply to this information; and
• there was lack of clarity over a small part of the land which the planning application relates to. The fact this may or may not be owned by the Council, could be construed as bias. However, this matter was not for the Planning Committee to consider, and no councillor involved with the decision held an interest in the land.

Oversail licence

54. The plans for the approved application shows one of the houses is likely to overhang the public footpath. Mr C brought this to the Council’s attention, but it decided no licence was required as it found the overhang to be minimal.
55. It is for the Council as the Highway Authority to decide whether an oversail licence is required in line with the Highways Act 1980. The evidence shows its Highways Officer visited the site and considered the plans. It was thereafter entitled to reach its view no licence would be required. I have therefore not found the Council at fault.
56. Once the development has been completed, the Council can consider whether the level of overhang is acceptable. It may then require a licence or consider whether it would be proportionate to take enforcement action for breach of planning control.
57. In addition, while I acknowledge Mr C’s concerns. It was for the company which hold a right of way to its electrical substation to raise any concerns it may have to the Council, although such matters are not normally material planning considerations. Nor, was I satisfied Mr C has a significant personal injustice as a result of the overhang set out in the plans.

Complaints handling

58. Mr C felt the Council was wrong not to respond to his questions and concerns following the Planning Committees decision.
59. I have not found the Council at fault for how it responded to Mr C’s concerns about the planning application and how it reached its view. This is because once the Planning Committee made its decision, there was no further duty on the Council to consider comments or representations by Mr C or other neighbours. It was entitled to ask Mr C to submit his concerns as a complaint under its corporate complaints process.
60. Mr C submitted his complaint, and the Council provided its response. This was in line with the Council’s complaints process for concerns about planning decisions.
61. However, Mr C’s complaint also included questions and concerns about disposal of Council land as he understands the Council owns a small stretch of land along the Highway and the development site. He made it clear to the Council this was separate to the planning decision.
62. While I acknowledge the Council believed Mr C was disputing the planning application and correctly informed him landownership was not a planning consideration, I found it should have responded to his concerns about potential disposal of Council land and the process the Council had followed to do so.

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Agreed action

63. To remedy the injustice the Council caused to Mr C, the Council should, within one month of the final decision:
1. Acknowledge it should have responded to his concerns about disposal of Council land and arrange for his concerns to be investigated and responded to.

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Final decision

64. There was no fault on the substantial matters complained about, but the Council did fail to respond to Mr C’s concerns about disposal of Council land. The Council has agreed with my recommendation, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman