Summary: Mrs X complained about the Council’s decision to approve a planning application for development on land near her home. We did not investigate this complaint further, as we were unlikely to find fault, recommend a remedy or reach any other meaningful outcome.

The complaint

1. Mrs X complained about the Council’s decision to approve a planning application for a leisure/holiday/recreational use on land near her home.
2. Mrs X said that there were already flooding problems on the land, which will be made worse, and that animals on pastureland she owns that shares a boundary with the site will be affected.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any potential injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot provide a remedy or achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. 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.
5. 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

6. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If the outline application is granted, remaining planning issues can be submitted and approved in a ‘reserved matters’ application.
7. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed.
8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. 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.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. The impact development might have on land drainage can be a material planning consideration. If land drainage is judged to be an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
13. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.
14. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
15. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
16. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

17. The Council approved a planning application for leisure/recreational/holiday uses on land near Mrs X home. Mrs X’s home is about 125 metres from the site and there are two single storey dwellings between her home and the site.
18. Mrs X owns a small holding, and pastureland she owns shares a boundary with the development site.
19. There have been a number of planning applications and decisions relating to the site. Recently, after a planning enforcement investigation found evidence that showed planning conditions were in breach, the developer submitted a planning application.
20. The Council’s planning case officer considered the application and wrote a report for the planning committee, which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including the principle of development, design, layout and density, impact on residential amenity, ecological issues, flood risk and drainage, and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. The Council’s planning committee approved the application subject to planning conditions.

My findings

22. 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.
23. 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?
24. 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.
25. 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.
26. I should not investigate this complaint further, and my reasons are as follows:
• Mrs X’s home is a significant distance from the site, and further investigation is unlikely to result in my making a recommendation for a remedy. When considering personal injustice to complainants in planning cases, we generally look for evidence of direct impacts on residential amenities for complainants’ homes. Mrs X owns pastureland adjacent to the site, but we are unlikely to provide remedies to protect amenities on open land.
• The case officer’s report shows that the main planning considerations were taken into account before a decision was made. The evidence suggests that the Council knew what it was approving, the site’s location, and what the relevant planning issues were. In these circumstances it is unlikely that further investigation would result in a finding of fault, or a different or meaningful outcome.
• If private individuals cause damage to their neighbours’ land, property or animals, this would not be a matter for a planning authority to control. By granting planning permission, the Council is merely deciding the development is acceptable in terms of planning policy and other planning considerations. It is not granting permission for individuals to damage the private rights of others.
• If flood or drainage planning conditions are breached, Mrs X may report this to the Council’s planning enforcement officers who will decide what action, if any, to take. However, if planning conditions eventually prove ineffective to control drainage on the site, this will not mean the Council is responsible for the consequences of the acts and omissions of private individuals/neighbouring landowners.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman