Summary: Mr C complains about the Council’s handling of a planning application for a large residential development and its discharge of conditions several years ago. He also said it had failed to properly consider the concerns it received about the approved road layout’s impact on the wellbeing and safety of residents following a decision to keep a nearby connection to a highway open. We found Mr C’s concerns about the Council’s planning decisions were brought to us late. There was no fault in the process the Council followed to reach its view not to reopen or seek amendment to the approved plans. It therefore reached decisions it was entitled to make.

The complaint

1. The complainant, whom I shall refer to as Mr C, acts on behalf of himself and many residents in a new residential development. They complain about how the Council dealt with a planning application and highway access for a residential development where they live. They say the Council wrongly and inappropriately:
• approved the application with unnecessary conditions which has led to a plan to re-prioritise and force all traffic including large vehicles to a highway through the development;
• failed to be transparent about in the access plans for the road layout;
• failed to properly consider residents views and concerns, and appropriately consider the safety of the public; and
• failed to re-open the planning approval and amend the access arrangements following the Highway Authority’s decision to keep an existing through road to a highway open.
2. Mr C says, once the planned access works is completed, he and other local residents will experience an impact on their wellbeing, and it cause an unnecessary risk of injury.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. 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 and other interested individuals provided;
• considered the information the Council provided to our initial enquiries, the planning documents, and the law and guidance relevant to the complaint; and
8. 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

Planning permission

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Decision making and material considerations

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

Section 106 agreements

18. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
19. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.
20. If an applicant disagrees with the Council’s decision regarding an application to modify or discharge a section 106 agreement they may appeal to the Planning Inspectorate.

Enforcement

21. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
22. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
23. 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

24. In 2013 a developer applied to the Council for planning permission to build a large development of residential homes. The land was off a highway (the Street) which connects to a major Highway (the Highway). The proposal included a road through the development to access the Highway, and the closure of the existing access to the Highway.
25. The Council considered and approved the developer’s planning application following consultations with relevant statutory consultees which included the County Council as the Highway Authority. The planning permission was subject to conditions.
26. The relevant key conditions were to:
• Submit for approval detailed drawings of highway works to facilitate the new access arrangement through the development from the Street to the Highway. The developer was required to obtain approval from the Highway Authority before commencing the works; and
• to close the existing connection between the Street and the Highway running alongside the new development.
27. In 2017 the developer submitted plans for the through road and the access arrangement for the junction leading into the development from the Street (the sweep junction). The plans showed this would be directing traffic from the Street through the development to enable access both to the development and the Highway.
28. The Highway Authority considered the proposal, and some changes were made. However, it found the proposal acceptable and had no objections. The Council subsequently discharged the planning conditions. A works agreement was signed between the Highway Authority and the Developer for the road works to be completed as set out in the approved plans.
29. Mr C and other local residents who are part of this complaint, lives in a new residential development in the Council’s area.
30. In 2019 Mr C and other residents raised concerns to the Council and the Highway Authority about the closure of the existing access between the Street and the Highway. They said the connection should remain open to allow traffic unrelated to the residential development to access the Highway. This was because the traffic included heavy goods vehicles (HGV) and farm traffic, which they said was unsafe and impacted their wellbeing.
31. The Highway Authority considered the concerns and discussed the matter with the Council. Although, the closure of the connection was part of the conditions for the development’s planning permission, it decided to keep the connection to the Highway open. The Council acknowledged the Highway decision and found this was a technical breach of the planning condition. However, it decided not to take enforcement action as this was also what residents wanted.
32. By 2020 the development was nearly completed, and the development was occupied by residents. However, the sweep junction has remained a T-junction and the new access to the Highway through the development is not yet open.
33. Since 2020 Mr C and the local residents has raised concerns about the safety and impact on the residential development due to the approved plans for the sweep access and new access to the Highway. They asked the Council and the Highway Authority to:
• review and amend the approved plans as a result of keeping the existing access between the Street and the Highway open;
• retain the T-junction leading into the development to avoid forcing traffic such as HGV’s and farm traffic entering the development to access the planned new connection to the Highway; and
• put traffic slowing measures in place on the Street.
34. In Spring 2023 the Highway Authority conducted a safety audit of the approved plans which included the sweep access. It made recommendations for additional warning signs and some minor changes to the layout to improve safety of pedestrians and cyclists as HGV’s were likely to overturn into cycling lanes.
35. A further planning application for another development within the same area was considered by the Council in Spring 2023. This included a transport assessment regarding the developments impact on the highway network. The Highway Authority found the proposal acceptable, and the Council found the new scheme did not require it to reconsider access arrangements through the planning process.

The complaint

36. Mr C and local residents complained to the Council in Spring 2023 about its handling of the planning application and discharge of the relevant planning conditions. They said the Council wrongly and inappropriately:
• approved the planning application with unnecessary conditions which has led to a plan to re-prioritise and force all traffic including large vehicles to a highway through the development;
• failed to be transparent about the access plans and appropriately consider the safety of the public. This was because the through road was relatively narrow, with small distances to residents’ driveways and children and pedestrians were regularly crossing the street;
• failed to properly consider the views of residents and concerns it received; and
• failed to re-open the planning approval and amend the access arrangements following the Highway Authority’s decision to keep an existing through road open.
37. In its responses the Council said it would not revisit the matters about the planning approval or the discharge of the relevant planning conditions due to the passage of time, which it found had been dealt with appropriately at the time. It explained the Highway Authority had supported the scheme and recommended approval at the time.
38. Mr C and the local residents remained dissatisfied. He told the Council it should have reconsidered the access following the Highway Authority’s decision to keep the existing access between the Street and the Highway open. He also said the Council’s and Highway’s decisions had not followed relevant guidance and not enough assessment had taken place to ensure the safety and wellbeing of residents and road users.
39. In its final complaint response, the Council did not change its view. It explained:
• it could not reopen or amend an approved scheme, nor could it reassess the impact of this based on new policies or guidance after the decision was made;
• it had taken account of the responses from statutory consultees including the Highway Authority and amendments had been made before the development was approved and conditions were discharged. This was evident in its planning committee report at the time;
• its conditions were necessary and relevant and related to the drawing of plans to ensure the proposed works was completed to the necessary standards. It explained the through road was approved through the initial planning approval;
• the separate new development had been considered by the Highway Authority which raised no concerns, and this scheme did not require it to reconsider the access arrangement to the development;
• it had taken the views of residents and the Highway Authority into account before it reached its decisions;
• the works agreement to complete the highway works was between the developer and the Highway Authority, not the Council. It was aware the Highway Authority had asked the developer to install signs to deter HGVs to enter the through road, and Mr C and the local residents had also brought a complaint to the Highway Authority. It could not comment on this matter.
40. Mr C and the local residents has continued to raise their concerns to the Council and the Highway Authority. This has included help from local councillors.
41. In Autumn 2023 the Council issued a position statement to the concerns it had received. This was similar to its complaint response to Mr C, and provided some reasons why it had found the through road to be necessary which included bus route planning. It also said the Highway Authority would continue to work with the developer under the works agreement to ensure relevant standards were adhered to, and it would continue to monitor the situation.
42. Mr C disagrees the Council cannot reopen the approved access arrangement for the new connection running through the development between the Street and the Highway as it has powers under Section 97 of the Town and Country Planning Act 1990 to do so.
43. A public meeting held by the Council took place in late 2023. This was attended by a large number of local residents and the Council. The developer did not attend. However, it was confirmed no works would commence on the sweep access until the Highway Authority had completed its safety audit processes.
44. In 2024 a further public meeting took place which included the Highway Authority. Mr C says this confirmed the Highway Authority will be signing off the sweep access and signs of ‘not suitable for HGV’ would be installed at the entrance of the through road into the development. Other traffic slowing measures on the Street was also discussed.
45. Mr C and the local residents remains dissatisfied with the Council’s handling of the planning application, the discharge of the conditions, and the Council’s refusal to reopen and amend the approved plans to change the sweep access and prevent HGV and farm traffic entering the development.

Analysis and findings

The planning and enforcement decisions

46. Mr C’s complaint relates to the Council’s planning decision for the development over 10 years ago, the discharge of the relevant planning conditions in 2017, and the Council’s decision to not take enforcement action against the Highway Authority’s decision in 2019 to keep the existing connection between the Street and the Highway open.
47. These matters are all late as they occurred more than 12 months before they were brought to our attention, I cannot therefore consider these further. While I understand Mr C and the local residents were not aware of the impact the Council’s decision may have on the traffic running through the residential development, the planning documents shows:
• the planning application set out the through road connecting the Street and the Highway through the development, with the closure of the existing connection to the Highway;
• the discharge of the relevant planning conditions in 2017 were available on the Council’s website with plans which showed the proposed sweep access. This was considered and recommended for approval by the Highway Authority at the time; and
• the residents’ concerns about the closure of the existing connection from the Street to the Highway was considered by the Highway Authority in 2019, and the Council decision not to take action to enforce the technical breach by the Highway Authority was shared with residents shortly after. I was also conscious this was the desired outcome on this matter.

The sweep access and through road

48. Mr C and the local residents have continued to raise their concerns about the impact the through road would have if the sweep access were to be developed as planned. They believe this will impact their wellbeing and cause unnecessary risks to life as HGV and farm traffic will be forced through the residential development.
49. It is clear from the evidence available:
• there is already ongoing instances of HGV and farm traffic entering the through road in the development. These come from a nearby industrial area and farms. This is despite the planned new connection with the Highway is not yet open and the T-Junction is still in place;
• the disagreement with the approved plans and sweep access is substantial within the local community;
• the Council has considered Mr C, local residents, and local councillor’s concerns about road safety and wellbeing within the development. It provided its reasons why both the through road and the sweep access should be developed as approved despite the existing access to the Highway remaining open. It shared its decision that it cannot, or should not, amend the existing approved plans;
• the Council says the concerns about Highway safety and the standards of the works is a matter for the Highway Authority, which is ongoing until the works as been completed as set out in the Highway Authority’s works agreement with the developer; and
• Mr C’s and local residents’ complaints to the Council and the Highway Authority led to some recommendations for signage and traffic slowing measures, but the Highway Authority says concerns about the approved plans are a matter for the Council to consider.
50. It is not for the Ombudsman to provide a view or decide whether a planning application should be reopened as a result of concerns such as highway safety. Nor can the Ombudsman insist a council must reopen and amend an approved planning permission as Section 97 of the Town and Country Planning Act 1990 is a power to act and not a duty.
51. However, I would expect a council to properly consider the concerns it receives about an approved planning application. Once it has done so, it is entitled to make a decision whether to exercise its power. This should be based on recommendations from the Highway Authority as it is ultimately responsible for the road safety.
52. I have not found fault in the process the Council followed to reach its views. It therefore reached decisions it was entitled to make. This is because:
• the Council has considered Mr C’s and the local residents’ concerns. It provided its responses, released a position statement, and held public meetings to explain its views;
• it has consulted with the Highway Authority’s and considered its recommendations;
• it has subsequently decided it cannot, or should not exercise its powers to make amendments to the approved planning application under Section 97 of the Town and Country Planning Act 1990; and
• it has confirmed it will continue to monitor the situation and may act on any advice it receives from the Highway Authority.
53. I cannot consider the actions of the County Council in its role as the Highway Authority as part of this complaint. This is because this investigation relates to the actions of the local Council as a planning authority. I understand Mr C and the local residents have made a complaint to the Highway Authority, once this process is completed, they can decide whether to raise a new complaint with the Ombudsman for us to consider the actions of the Highway Authority.
54. However, as with the Council as a planning authority, we can only consider whether there was fault in the process the Highway Authority followed to reach its decisions. I understand this is progressing and the safety audit process may soon be finalised.

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Final decision

55. I have completed my investigation with a finding of no fault in the process the Council followed to reach its decisions. Other matters complained about were brought to our attention late.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman