Summary: Mr X complained about the Council’s flawed decision-making process when it approved a neighbouring planning application. We have not found the Council to be at fault.

The complaint

1. Mr X complains about the Council’s flawed decision-making process when it approved a neighbouring planning application, specifically in respect of the siting of bicycle storage to the rear of the development. In particular, he complains the Council;
1. failed to properly consider planning policy;
2. failed to consider public safety and security issues;
3. relied on inaccurate plans;
4. failed to assess the impact of noise and disturbance on neighbouring properties: and
5. failed to properly consider loss of amenity space within the development site.
2. Mr X says he is concerned the development will impact on the amenity of his property and increase the risk of anti-social behaviour.

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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 how the organisation made its decision, 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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What I have and have not investigated

5. I have not investigated 1(e) above. This is because there is not significant personal injustice to Mr X arising from any potential fault in this matter.

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How I considered this complaint

6. I read the papers provided by Mr X and discussed the complaint with him.
7. I have considered information from the Council and the planning documents publicly available on the Council’s planning portal.
8. I viewed the webcast recording of the Council’s Planning Committee meeting.
9. I have considered the relevant law and guidance.
10. Mr X and the Council had the opportunity to comment on this draft decision. I consider all comments received before making my final decision.

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What I found

Relevant law and guidance

Planning applications

11. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
12. 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.
13. 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.
14. General planning policies may pull in different directions (for example, 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’s 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.

Policy guidance – cycle parking

18. The Council’s Development Plan Policy states, “Cycle parking ..shall be secure, integrated, conveniently located, adequately lit, step free and accessible”.

Secured by Design (SBD)

19. This is the official police security initiative that works to improve the security of buildings and their immediate surroundings to provide safe places to work, shop and visit.

What happened

20. I have set out a summary of key events in this case but is not intended to detail everything that happened.

The 2019 Application

21. In 2019, a housing association (“the Applicant”) submitted a planning application to the Council to develop a property to the rear of Mr X’s home. The Applicant sought planning permission to change the use of the property from a house in multiple occupation (HMO) to seven, self-contained residential units. The application included proposals for cycle storage to the rear of the development.
22. The application process included consultation with the local Crime Prevention Officer. They confirmed advice had been sought from a Secured by Design Officer who recommended a number of measures, including lighting of an external passageway and fob access.
23. There was a resolution to grant planning permission in 2020, subject several conditions and a legal agreement. This included compliance with security recommendations and the submission of a more detailed cycle storage scheme.
24. In 2021, Mr X informed the Council work had started on site prematurely. He raised concerns about the location of the cycle storage to the rear of his property. Access to this storage from the new development was through an alleyway, partly adjacent to Mr X’s boundary. (“the Alley”).
25. Mr X was concerned this had the potential to create excessive noise and encourage anti-social behaviour near his home. Mr X provided the Council with video footage of a potentially violent incident near the exiting alleyway to illustrate his point.

The 2022 Application

26. In response to his concerns, the Council said it would ask the Applicant to submit new plans and would subject to further consultation. Mr X says he was led to believe by a senior officer, Officer P, that cycle storage would be relocated to the front of the property instead of the back. This was the outcome sought by Mr X.
27. Several varying design proposals were submitted by the Applicant to the Council. The final plan included the Alley with cycle storage to the rear of the Property, adjacent to Mr X’s boundary.
28. The revised proposals were the subject of further consultations with residents.
29. Mr X lodged an objection to the revised plans. He was surprised and disappointed the written commitment given to him by Officer P has not been honoured. Officer P no longer worked for the Council.
30. He was also concerned about the failure to specifically refer to his property on the plans.
31. The revised plans were considered by the Council’s Planning Committee (the Committee) in April 2022. Mr X and other objectors made submissions to the Committee. In reaching its decision, the Committee considered the content and recommendations of the case officer’s report.

The case officer’s report

32. The case officer’s report responded to Mr X’s concerns.

• It explained a request had been made to relocate cycle storage to the front, but “officers consider the introduction of cycle storage to the front would be unduly prominent and incongruous with the conservation area, whilst also being limited to the space available”.
• The report stated, “officers did not consider this [storage to the front] to be appropriate in design and conservation terms and consider there was insufficient space if both refuse and cycle storage were located in the front garden”.
• The report acknowledged residents were told by Officer P that cycle storage would be relocated to the front but, following further investigation, it was decided they could not be accommodated there.
• The report considered the Intensification of use of the Alley. Officers considered residents taking bikes through their property but rejected this as impractical. It was also considered unlikely the Alley would result in unacceptable noise disturbance.
• The limited number of both occupiers and occupiers’ cycle spaces would limit the use of the Alley.
• To address security concerns “Secured by Design” measures endorsed by the relevant SBD officer would be submitted for approval prior to development of the site.
• The revised site plans included reference to Mr X’s property. The Council was satisfied the impact on his property had been properly considered.

33. The bike storage issue was discussed at the Committee. It was told by the Applicant’s representative that it had looked into re-siting the cycle storage to the front of the properties, but the limited space would not allow it. The Committee was also told the Applicant would consider lighting and security to reduce any potential risk form anti-social behaviour. Officers confirmed that it was not a public right of way and access would be gated and limited to the use of residents.
34. The Committee approved the application.
35. Mr X felt the Committee had been misled by officers into making the wrong decision. He complained to the Council in the first instance and the to the Ombudsman.

Mr X’s complaint

36. Mr X complained to the Council about its consideration of the application in February 2023. This complaint raised detailed concerns which included the following matters:
• The consultation response from SBD were based on old plans that did not show the Alley. Committee members were therefore misled into believing there were no material safety concerns and further SBD advice was not needed.
• The plan considered by Committee did not show Mr X’s property. This meant Committee members had no meaningful way of understanding how passageway would impact on him.
• No noise impact assessment had been carried out on the potential disturbance created by use of the Alley in close proximity to Mr X’s bedroom window.
• The Council went back on a written commitment given by Officer P to ensure bike storage would be moved to the front. Officer P confirmed in writing this was “the formal position of the Council”. Mr X says he had a legitimate expectation this commitment would be honoured.
37. In response the Council:

• confirmed the impact on neighbouring properties, including noise and security, were properly considered prior to approval;
• confirmed Committee members were provided with all objections in their original form. They did not just rely in the summary provided in the case officer’s report,
• was satisfied all relevant planning policies and guidance had been properly considered and assessed; and
• rejected Mr X’s claims that the Committee had been misled regarding the practical location of the cycle storage. The Committee report addressed the previous commitment given by Officer P. This did not mean the Council could not change its position once more information from the Applicant had been obtained.

Analysis

38. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
39. The main issue in this case is the creation of the Bin Alley that ran alongside part of the rear boundary of Mr X’s property. This did not exist in the original application approved by the Committee in 2020. It was created to provide access to bike and refuse storage that the Applicant said could not be accommodated to the front of the development.
40. With this context in mind, I will consider Mr X’s separate areas of complaint.

Planning policy

41. Mr X said the Council did not follow planning policy and guidance and the application was in conflict with the development plan.
42. The Council must have regard to planning policies, guidance and plans. However, as mentioned above, there are often competing interests which mean an application may not fully comply with policy. We would not expect the Council to rigidly apply policy to its decision in these circumstances.
43. Based on both the case officer’s report and my viewing of the Committee meeting I am satisfied the correct procedure was followed in this case.
44. The Council considered the application as a whole, on its merits, against the purpose and objectives of policies and plans. Committee members were aware of Mr X’s concerns about planning policies being either disregarded or irrelevant.
45. This was a judgement call by the Council. The fact Mr X strongly disagreed with specific issues, does not mean the Council did not give proper consideration to planning policies. I do not find the Council at fault here.

The site plan

46. The case records show there were a number of different versions of the ground plan that were subject to consultation. Whilst not ideal, I accept this was necessary because the Applicant had to respond to issues that were raised during consultation, including the location of cycle storage. However, is not in dispute that the Committee made its decision based on the correct plans.
47. Mr X says the impact on his property could not be properly assessed by the Committee because it was not annotated on the plans.
48. This Council’s website provides applicants with mandatory requirements when submitting plans. This includes providing a location plan that “shows any surrounding lands and buildings”. Similarly, the site plan should be “a more detailed scale plan showing the relationship of the proposal to the site boundary and any buildings on neighbouring land”.
49. Whilst the site plan shows Mr X’s land and building, its was not annotated with the number, although his neighbour’s was. I accept it would have been preferable for Mr X’s property to be labelled. However, because it was relatively straightforward to establish the building was Mr X’s, I am not minded to find fault with this issue. In reaching this decision, I have also taken into consideration Mr X wrote personally to all Committee members with an aerial photograph of the application site showing his property.

Public safety and security

50. Mr X’s has strong concerns about the Alley increasing the risk of anti-social behaviour in the vicinity of his home. He says the Council failed to take account of this and ignored the numbers of potential users of both the Alley and the existing passageway.
51. The case officer’s report clarified the use of the existing passageway would be limited to exiting users and occupiers of the new development. Committee members were therefore made aware of the potential numbers of users. The report also explained security arrangements would be submitted by the Applicant prior to occupation. This was sufficient evidence that the Committee was aware of the potential security issues and was satisfied with how they would be addressed.
52. Mr X says the Council was also at fault for failing to reconsult with the SBD officer following the revised proposals. In my view this did not invalidate the application. I say this because the case officer’s report addressed this issue and amended one of the original conditions to ensure security proposals would be submitted prior to relevant works starting on site. This ensured that potential security concerns would be considered at that time.
53. Overall, there was no evidence of procedural fault here.

Noise and disturbance

54. I consider the case officer’s report contained enough information for the Committee to make decision on this issue of noise disturbance. There was no obligation on the Council to carry out a noise assessment, as requested by Mr X. The Committee was advised it was “unlikely” there would be an unacceptable level of noise resulting from use of the Alley. It was for the Committee to make up their own minds on the merits of the application.
55. In my view, the report was adequately detailed on this point and allowed the Committee to make an informed decision. There was no fault here.
56. Conclusion
57. Based on the evidence provided, I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations including representations from statutory consultees and residents when doing so. I have seen no evidence of fault in the Council’s consideration of the application.

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Final decision

58. I have not found the Council to have acted with fault. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman