Summary: Mr X complained about the way the Council handled a planning application for the change of use of land near his home. He said the Council failed to properly consider the impact on his home as a listed building. There was no fault in the Council’s consideration of the change of use application. However, there was fault in the Council’s failure to include a condition limiting the number of dogs allowed on site at the same time.

The complaint

1. Mr X complained about the way the Council handled a planning application for the change of use of land near his home. He said the Council failed to properly consider the impact on his home as a listed building.
2. Mr X said the new use of the land will have a harmful impact on his amenity, including noise nuisance and visual impact, and is harmful to a heritage asset.

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The Ombudsman’s role and powers

3. 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)
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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mr X 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

Permitted development

9. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Decision making and material considerations

10. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
11. 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.
12. 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.
13. Government statements of planning policy are material considerations.
14. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
15. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
16. 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.
17. 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.

Site Visits

18. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.

Listed building consent

19. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – buildings of exceptional interest;
• Grade II – buildings of special interest; and
• Grade II* – particularly important buildings of more than special interest.
20. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.

What happened

21. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
22. Mr X lives in a listed building next to farmland. The gardens of Mr X’s home are not enclosed on all sides. The boundary Mr X shares with the farmland is open, with no fencing or hedgerows.
23. Before this complaint, the farmland had been largely empty, and Mr X enjoyed clear views across the countryside.
24. The owner of the farmland (the applicant) erected a metal fence on their land close to the boundary with Mr X’s garden. The fence enclosed a piece of the farmland which the applicant intended to use for a dog walking business.
25. The applicant then sought planning permission from the Council to change the of use of the agricultural land into a place for dog walking. The plans included a small car park for two cars. The proposed opening hours were from 6am to 9pm and the maximum number of dogs allowed would be eight. The plans also confirmed the development is enclosed by a 1.8-metre-high post and wire fence.
26. Mr X’s wife (who I will refer to as Mrs X) objected to the plans. Mrs X said the development is directly next to a boundary of the curtilage of the listed building. There is no existing boundary hedge, it is open and visible. She said there will be a loss of privacy as the development site will have direct views into their garden, and bedroom and bathroom windows.
27. Mrs X also said the fencing already erected adversely impacts the visual setting of the listed building. She said the noise from dogs barking and continual movement will also have a significant adverse impact on the setting of the listed building. Mrs X said the opening hours of 6am to 9pm mean there will never be a period when they can enjoy peaceful use of their garden.
28. The Parish Council also objected to the plans. It said the plans harmfully affected the setting of two listed buildings and would cause loss of privacy to residents. It also said there is a possibility of noise pollution, and the perimeter fence is out of keeping with a normal rural fence.
29. A heritage officer from Essex County Council said the change of use would not impact the setting of Mr and Mrs X’s listed building. However, they said the perimeter fence is inappropriate in character, scale and design within close proximity to the historic garden and orchard of Mr and Mrs X’s listed building. They said the industrial design is not in keeping with the local rural character. The officer said if this type of fence is required for the change of use, then the change of use itself was considered harmful. They said the harm was at the lower end of ‘less than substantial’ (Paragraph 202 of the National Planning Policy Framework), and great weight should be given to the heritage asset’s conservation. Justification was needed for any level of harm.
30. An officer from the Council’s environmental protection service had no adverse comments to make. However, they suggested the Council impose conditions on the proposed time of use and proposed number of dogs per time (eight dogs).
31. An officer from the Council’s tree and landscape service gave an initial view the fence, parked cars, and dog walkers would be visible and cause a relatively minor adverse impact on local landscape character. They recommended screening for the site with a new hedgerow.
32. However, after discussions with the applicant’s agent (the agent), the officer changed their view. The officer said they agreed views of the fence were distant and the fence itself was not a particularly odd feature in the countryside. The officer said, while they would like to see a new hedge planted at the site boundary, they understood why it may not be necessary to make the application acceptable in planning terms.

The planning officer’s report

33. The planning officer considered:
34. ‘The works include the erection of 1.8 metre high post and wire fencing to enclose the development, however schedule 2, part 2, class A of the Town and County Planning (General Permitted Development) (England) Order 2015 as amended confirms that these works can be carried out without the requirement for planning permission and therefore this element of the scheme does not form part of the determination of the application.’
35. The officer noted an objection about the fence, and a question about whether it met the permitted development requirements. The officer’s report confirms:
36. ‘Schedule 2, Part 2, Class A (d) states development is not permitted if “it would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building”. The proposed fence is located approximately 12 metres from the curtilage of the listed building to the east and therefore Officers consider that the fencing is in accordance with this criterion.’
37. ‘The fence can be erected under permitted development rights and the remaining elements of the proposed use would not be harmful to the setting of the listed building. It will therefore be unreasonable to recommend refusal of the application on this basis.’
38. On the impact on neighbouring amenity, the officer considered:
39. ‘The application site is located approximately 25 metres from the nearest dwellings, although the field abuts the curtilage of the dwellings to the north…as well. In addition, the number of dogs are to be restricted to no more than eight, while the operating hours will be purely during daylight hours. Given this, there is not considered to be significant harm in respect of noise disturbances, both through the proposed use as well as associated vehicular movements. Concerns have also been raised in regards to loss of privacy; while these points are acknowledged, Officers are also mindful of the significant separation distances. Given this, and that any views from the site to neighbouring garden areas will be minimal, Officers are content that this identified harm would not be to a significant level that would warrant recommending a reason for refusal.’
40. The officer’s report concluded:
41. ‘The proposed development allows a diversification of the existing use to create a low-key proposal in the countryside on a comparatively small area of…agricultural land, and is supported in principle. Officers are content there are no significant harms to the landscape character of the area, or to residential amenities…In respect of the impact to the setting of the neighbouring listed buildings, while a low level of less than substantial harm has been raised in respect of the fence specifically, for the reasons given the fence itself can be erected without requiring planning permission as such Officers consider that a reasons for refusal on this basis would be unreasonable and difficult to defend on appeal. Accordingly the application is recommended for approval.’
42. The Council granted planning permission with the condition that the development could only operate between 6am and 9pm each day, unless agreed in writing by the Council.
43. Mr X complained to the Council on 7 November 2022. He asked the Council to review its decision because he was concerned about bias from the planning officer. Mr X said:
• Email correspondence with the agent from the outset shows the planning officer was minded to approve before receiving a report or visiting the site.
• The officer failed to weigh the harm to the listed buildings properly. He accepted statements from the agent and downplayed advice from heritage experts and property owners.
• The officer’s report does not balance the harm to the listed buildings against the public benefit.
• The decision contradicts PPL9 of the Council’s Local Plan (protection of listed buildings).
• The officer fails to consider whether the proposal could be placed elsewhere, with no harm to listed assets.
• The officer accepted a report from an environmental adviser which repeats what the application states, within two hours of seeking the report.
• The officer failed to properly consider loss of privacy and noise.
• The officer failed to consider the cumulative impact of planning decisions.
• The agent made false statements in the planning application, claiming hedgerows surround the site, and the site is separated from the curtilage of Mr X’s home by an existing boundary hedge and mature trees. Mr X said this is untrue.
• The agent claimed the formal garden of Mr X’s home is to the East, when it is to the West and North West, bordering the proposed dog field.
• The agent described the proposed development as small scale and sensitively positioned. Mr X said the site is 3.4 acres, so not small, and abuts the boundary of 11 properties, including two listed buildings, so it not sensitively positioned.
44. The Council responded to Mr X’s complaint on 14 November 2022. It said applicants and agents will often provide a positive picture of their proposed development. The Council must deal with the application on its merits against all material planning considerations. It said its judgement on the weight of these matters is its own, and others may not always agree.
45. The Council said its officers will visit the site. However, there is no duty to visit neighbours, and officers do not have to take photographs. In this case, the Council said the case officer also arranged for a visit from the County Council’s heritage officer. This is more than the Council would expect and shows the case officer did more than enough to understand the site and consider the heritage assets. The Council said there was no evidence the case officer acted inappropriately.
46. The Council said planning officers are biased in professional terms. That is because planning should promote development and find solutions or mitigate harm through planning conditions. Officers must work positively and proactively with applicants. The Council said a line manager reviewed and approved the case officer’s report.
47. The Council said its validation team should have formally consulted environmental health. When this did not happen, the case officer consulted them. The Council agreed the response was short, making it appear environmental health did not properly consider it. It said it would ask its environmental team to consider their approach to late consultations in future. The Council said it remained satisfied with the robustness of the decision making.
48. The Council appreciated Mr X did not agree with the judgements of the case officer. However, it did not find any undue bias. It found the officer engaged with Mr X to ensure he had an opportunity to explain his views.
49. Mr X asked the Council to consider his complaint at stage two of the complaints process on 5 December 2022. He said:
• The Council failed to deal with the points he raised in his complaint.
• The planning officer wanted to approve the application from the outset and showed a closed mind. He also repeated the officer accepted statements from the applicant and ignored comments from heritage experts, residents, and the parish council.
• The planning officer did not challenge any of the factual errors stated by the agent.
• The Council showed bias and failed to properly understand the impact on a listed building, or the Council’s statutory duty to protect heritage assets.
• The planning officer accepts in his report the public benefit does not outweigh the harm to the heritage asset. This should have meant refusal of the application.
• The Council should not be second guessing whether an applicant would appeal a refusal and what decision the planning inspector may reach.
• While the fence is not on his boundary, it is only 23 feet away and is so close as to make no difference.
• The planning officer downplayed his loss of privacy. He said the officer should have rejected the change of use on that basis.
• The planning officer was wrong to say the separation distance between his home and the application site was significant, and views from the application site into neighbouring gardens are minimal.
• The environmental officer completed their report in only two hours, showing a lack of proper consideration.
• He got a valuation of his home. There was a fall of 10% due to the dog field. This was due to noise and significant loss of privacy. Mr X said this reduced the appeal of his home and endangered the long-term survival of it as a listed building.
50. The Council sent its stage two complaint response on 28 December 2022. It said Mr X objected to the application and the case officer was aware and took account of his objections.
51. The Council recognised the applicant probably erected the fence because they intended to apply for a change of use of their land. However, it said erecting the fence was not part of the application. It came under permitted development rights. The Council could not approve or refuse it. Therefore, the material and location of the fence was not something the Council could consider in determining the change of use application.
52. The Council said it was a weakness in the legislation that an industrial style fence can be so close to a heritage asset without needing planning permission.
53. The Council said the heritage officer’s comments were almost only about the fence. They did not object about the change of use of the land.
54. The Council said Mr X was not correct the case officer accepted the agent’s statements as truth. It said the officer used information from consultees and their own knowledge to provide a rounded view of the proposals. The officer visited the site and neighbouring site to assess it position. It was through this process the officer determined the material facts.
55. The Council recognised Mr X’s concerns about officers ‘second guessing’ whether an applicant will appeal and deciding applications on that basis. It said officers should not fear an applicant appealing a decision.
56. The Council said the officer’s report outlines the application and the views considered when recommending approval of planning permission. It said the decision comes down to the officer’s judgement on the material planning considerations.
57. The Council noted Mr X’s concerns about the timing of the request for comments from the environmental protection team. However, it said the request and recommendations were in time for the planning officer to consider them before their decision.
58. The Council confirmed it did not include a condition limiting the number of dogs allowed on the land. It said there was no previous limit on the number of animals allowed on the land and it will regulate any future nuisance through the Environmental Protection Act.
59. The Council ended by saying officers correctly processed the application and applied themselves properly. Erecting the fence was not part of the change of use application.

My investigation

60. Mr X told me there is constant noise from dogs barking at the application site. On one occasion, two large aggressive came right up to the fence and he worried they could jump over.
61. Mr X said the noise is a daily event and it sets off other dogs from other residents. He has not made a noise nuisance complaint to the Council’s environmental health service, because this complaint was ongoing, but he has made a note of the noise on occasion.
62. Mr X said the Council’s view is there is no visible impact on his privacy. He accepted a planning officer visited his house, but Mr X felt they looked for reasons to say the impact was not significant. Mr X said this is wrong. He can see the whole dog walking field from the principally used part of his garden.
63. Mr X has planted some beach and holly trees, at his own time and expense. However, he thinks they are wrong for the location, and it will take years for them to grow and have an effect.
64. Mr X also told me the value of his property has been impacted.
65. The Council told me it did consider the impact to the listed buildings, and the impact on neighbouring residents’ privacy and amenity. It said this consideration is detailed in the planning officer's report.
66. The Council said planning officers did not consider the harm caused by the development was significant enough to warrant a landscaping condition for additional planting. It said this is also discussed in the planning officer’s report.
67. The Council said the fence the applicant erected before making the change of use application is not within the curtilage of the listed buildings, nor is it enclosing the listed buildings. The fence is within the applicant’s field and is not on the boundary. The Council said the fence therefore complies with permitted development rights.

Analysis

68. Assessing the impact on the listed building, and on Mr and Mrs X’s amenity and privacy, comes down to the professional judgement of the planning officer. The officer held discussions with the agent, visited the application site, and visited Mr and Mrs X’s home to assess the relationship. The officer did not say there would be no impact, but he considered the impact was not significant enough to refuse planning permission.
69. I appreciate Mr X felt the officer was looking for reasons to say the impact was not significant. However, without any evidence of fault in the procedure, I cannot question the merits of that judgement. And I cannot substitute my own views for those of the planning officer. I found no fault in the way the planning officer assessed the impact on Mr and Mrs X’s amenity and privacy.
70. The planning officer’s view about the impact on the listed building is supported by the consultees, who identified no harmful impact from the change of use itself. The harm identified by the County Council’s heritage officer was in relation to the enclosure fence, not the change of use.
71. Mr and Mrs X questioned whether the fence could be permitted development. That is because it is so close to the boundary of a listed building. They also consider it negatively impacts the setting of the listed building. I have considered the Council’s complaint response, and the relevant section of the permitted development rules on listed buildings. I am satisfied the Council properly considered the issue and there was no fault in its decision to class the fence as permitted development.
72. That being the case, I also found no fault in the Council’s decision not to consider the specifics of the fence and its possible impact as part of its consideration of the change of use application. While I appreciate the change in use to a dog walking business cannot properly work without a fence to enclose it, the fence was already in place and did not need planning permission. Had the applicant not erected the fence before, and included it as part of the planning application, the Council could have considered the type of fence and materials used. Unfortunately, that was not the case here.
73. I appreciate Mr X’s point about the Council giving considering in its decision report to what the result of the application would be on appeal. While I do not go as far as saying this was an irrelevant consideration, it is not a material planning consideration. The Council recognised this point in its complaint response. However, I did not find this was a determinative factor in the Council’s decision. It was one point of consideration, made after the planning officer had set out the material points.
74. Mr X also complained the Council did not include a condition limiting the number of dogs allowed to visit the site at the same time. In his report, the planning officer states the number of dogs will be restricted to eight. However, they did not include a condition about this.
75. The Council did not say whether this was an oversight, but it said there was no previous limit on the number of animals allowed on the agricultural land.
76. However, this application was for a change of use of the land. It is no longer agricultural. The number of animals, and visitors, is a material consideration and this was something the officer considered.
77. The planning officer specifically referred to the opening hours, and the fact the number of dogs will be limited to eight. These were both reasons the officer decided the change of use would not cause significant harm in terms of noise.
78. There is a condition about opening times. It would automatically follow there should also have been a condition limiting the number of dogs, because this helps mitigate the risk of noise. On balance, I found the lack of a condition limiting the number of dogs to eight was an oversight and was fault.
79. The absence of this condition could mean the applicant allows more than eight dogs to use the field and there will be little the Council can do. Whether this potential increase in number of dogs adversely impacts Mr and Mrs X or other residents’ amenity is unknown at this stage. I therefore cannot say Mr and Mrs X have suffered any significant injustice as a result of the fault. There will be an element of frustration and uncertainty, which the Council should acknowledge and apologise for.
80. If the noise from the site reaches levels where there is a potential statutory nuisance, the Council can intervene using its powers under the Environmental Protection Act 1990.

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Agreed action

81. Within four weeks of my final decision, the Council will apologise to Mr and Mrs X for failing to include a condition limiting the number of dogs allowed on site at the same time. The Council will acknowledge the frustration and uncertainty this has caused. The Council will also reaffirm its commitment to investigate any noise nuisance complaints which may arise from the application site.
82. The Council should provide us with evidence it has complied with the above actions.

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Final decision

83. I completed my investigation. There was no fault in the Council’s consideration of the change of use application. However, there was fault in the Council’s failure to include a condition limiting the number of dogs allowed on site at the same time.

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Investigator's decision on behalf of the Ombudsman