Summary: X complained the Council failed to be transparent when granting permission to a neighbouring development and failed to notify them about the proposal. They said the Council failed to consider the impact on wildlife and did not investigate alleged breaches of planning permissions. X also said the Council did not have regard for local and national planning policies when making its decision. We have not found the Council acted with fault.

The complaint

1. X complained the Council:
1. Failed to be transparent when granting permissions for a neighbouring development. X said the Council did not notify them about changes to the proposed development. They also said the planning applications were incorrectly considered, as they were not decided by committee.
2. Failed to properly consider the impact on existing wildlife when granting permission. X also said the Council failed to act to address concerns raised during construction.
3. Failed to act to address concerns about noise nuisance during construction.
4. Failed to have proper regard to local and national planning policies when granting permission.
5. Failed to properly investigate alleged breaches of planning permissions.
2. X said the Council’s actions caused avoidable frustration and distress. They also said by failing to exercise its duties correctly, the Council granted permission to a development that impacts their amenity and privacy.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. When considering complaints 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.
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. I considered information X provided about the complaint.
8. I considered information the Council provided about the complaint.
9. Both X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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Relevant legislation, guidance and policy

Planning permission

10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. There are different types of planning application. Relevant to this complaint:
1. Outline planning applications are used to gain an understanding as to whether the nature of a development is acceptable. Specific details known as ‘reserved matters’ can then be confirmed later.
2. A reserved matters application deals with the outstanding details omitted from an outline planning application. These reserved matters can include appearance, means of access, landscaping, layout and scale.
3. Full planning applications are required when making detailed proposals for developments not covered by a householder application or permitted development rights. Full planning applications can be made when all the details are known and the development is already considered viable.
4. Applications to vary a planning condition can be used to change or remove conditions previously imposed. Whatever the result of an application for removal or variation of conditions, the original planning permission will continue.
5. An application for a non-material amendment may be used to gain approval to a minor change to the planning permission and does not breach any conditions originally placed on the consent. If the Local Authority does not agree the proposed amendment is minor, it can require a new application.

Publicity

12. Regulations set out the minimum requirements for how councils publicise planning applications.
13. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
14. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
15. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the council’s policy on how it will communicate with the public when it carries out its functions. In their SCI policy councils may commit to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
16. The Council adopted its current SCI in June 2021. The Council’s SCI says it communicates with the public by using site notices and press notices. It does not commit to serving notice to adjoining owners or occupiers.

Decision making and delegation

17. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.
18. The Council’s scheme of delegation sets out the circumstances in which officers will make decisions about applications, or where applications should be decided by committee.

Case officer reports

19. 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.
20. 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.

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.

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What I found

24. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.

Relevant planning history

25. In March 2019, the Council received an application for outline planning permission for a development near X’s home. The Council granted permission in September 2019. This grant of permission was dependent on eventual approval of reserved matters. The Council said it never received a reserved matters application. Because of this, this permission was never implemented.
26. In September 2021, the Council received an application for full planning permission. This application proposed a similar development near X’s home. The Council granted permission in November 2021. The grant of permission included conditions about the construction and appearance of the development. It also included conditions about construction hours, and conditions concerning bat and bird boxes.
27. In March 2022, the Council received an application to make a non-material amendment to the proposed development. This proposed changing the position and orientation of the development, within the approved site boundaries. The Council refused this application. It said the proposal would need greater consideration and consultation than an application for a non-material amendment would provide. It advised the developer to apply to vary the relevant planning conditions, to allow full consideration.
28. In April 2022, the Council received an application to change the conditions relating to the position of the proposed development. This would change the approved plans. The Council granted permission to vary these conditions. This permission depended on the development being completed as set out in the agreed varied plans.
29. In March 2023, the Council received another application, to vary the approved plans again. The development would remain in the same location, but the application sought approval for changes in design and size, mainly for the onsite garages. The Council granted permission in April 2023.

Complaint

30. In September 2023, once construction was underway, X complained to the Council about the development. The Council summarised the complaint:
1. The Council had provided no written notice of the proposals or any changes to the development, other than its letter in March 2019.
2. The Council had approved changes to the agreed design and build in 2023. X said these changes were significant and affected their privacy.
3. X said that hedging and other flora were removed during bird nesting season. X said this was in breach of the Council’s officer report. They said the Council had been told about this in May 2023.
4. X questioned how the Council could allow such a large development near their home. They said the development impacted the light in the kitchen and garden rooms.
5. X raised concerns about how the developer would build the foundations of the new development.
6. X complained about the construction noise. They said the sound was intrusive and disruptive inside their home. They said they reported this to the Council in August 2023, which told them to speak to the developers. X said the developers had not responded to their complaints.
7. X said the Council had not recorded the objection letter they filed against the proposal in 2019.
8. X said each planning application after the first seemed to disregard ecology reports.
9. X said the Council should mandate that the developer carry out bat surveys. They also sought details on measures taken to protect amphibians. X said they had told the Council about their concerns in May 2023, but it had taken no action.
10. X said the plans did not clearly set out the locations of septic tanks.
11. X asked the Council to provide copies of minutes for the meetings where the Council decided to approve the development.
31. I have summarised the Council’s responses:
1. The Council said it no longer sent individual letters of notification to neighbours. It now only advertised by site notice.
2. The Council said the planning applications went through the normal procedure of consultation, consideration and determination. It had published details on its website. It said it had decided the proposed changes were acceptable, having considered all relevant information.
3. The Council noted X’s concerns about the foundations, but said this was not a planning matter. It said it had consulted its drainage team, which raised no objections.
4. The Council confirmed the permitted hours for construction noise and building work. It asked X to contact its planning enforcement service if they believed there had been a breach of this condition.
5. The Council said it had no copy of X’s 2019 letter on the planning file. It said it had now removed representations for this application, in line with its retention policy. The Council said the 2019 permission was never implemented. It said the development was now being carried out under the full application, which had been varied under two further applications.
6. The Council said its Ecologist had commented on the full application and decided there was no need for further survey work. The ecology report would have a lifespan of two years before needing an update. The Council said it had included conditions about bat and bird boxes. It said whether nests had been destroyed would be a matter addressed under the Wildlife and Countryside Act and not a planning matter. However, the Council did not consider any nests were at risk of being damaged or destroyed, because they were on a neighbouring site.
7. The Council clarified the approved drainage layout and location of the septic tank.
8. The Council said officers had decided all applications under its scheme of delegation. It said none of the applications met the trigger for committee consultation.
32. In later correspondence, X asked the Council further questions. The Council did not change its position, but provided further information or clarification. X escalated their complaint to the final stage of the Council’s complaints procedure in October 2023.
33. While awaiting the Council’s response, X told the Council one of the neighbouring developments was being built to exceed the granted permissions relating to height. X asked the Council to investigate this potential breach.
34. The Council responded to X’s complaint in November 2023. In summary, it did not change its findings. It reiterated it supported its earlier conclusions.
35. In February 2024, the Council carried out a planning enforcement investigation. It wrote to X with the outcome:
1. The Council said it had visited the site and compared the construction to the approved plans.
2. It said the construction was consistent with the approved plans. It said there was a slight difference with the development being slightly further from X’s boundary than proposed. The Council said this did not have a significant impact on the development.
3. The Council said it would take no enforcement action and would close the case.

Analysis

36. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with the decision the organisation made.

Transparency and notification

37. When the Council received the application for outline planning permission in 2019, it wrote to X to provide notice. I understand this was in keeping with the statement of community involvement adopted at the time. The outline permission granted never went ahead. The application for full planning permission, made in 2021, replaced this.
38. The Council adopted its current statement of community involvement in June 2021. This says it will tell the public about planning applications by site notices and press notices, where statute mandates it do so. It says the Council will place site notices in a suitably prominent position. In this case, the Council said it placed site notices on a metal gate, which I understand was the access point for the development site.
39. Paragraphs 12-15 set out the requirements for publicity in planning consultations. Some councils may opt to write directly to neighbours, but the regulations do not mandate this. The regulations allow authorities to publicise planning applications for minor developments by site notice alone.
40. I recognise X strongly feels the Council should have written directly to them, especially as it had in the past. However, in this case, the Council followed its current statement of community involvement, which complies with the requirements of the regulations. I have not therefore found the Council at fault for failing to publicise the planning applications.
41. X said a planning committee should have decided the applications rather than officers deciding through delegated authority. The Council’s scheme of delegation sets out the circumstances in which a committee decides applications. These are:
1. Applications made by, for, or about the property of, Members or officers of the Council who hold politically restricted posts or named positions.
2. Applications made by the Council, or about land owned by the Council, which are not in-line with statutory functions.
3. Applications accompanied by a Schedule 1 Environmental Statement.
4. Complex or major applications, which named senior officers believe the relevant planning committee should decide.
5. Applications where the Local Member seeks a referral to the relevant planning committee, within 21 days of electronic notification of the application. Specific named officers and senior committee members also need to agree this referral.
6. Applications where the Parish Council present a view contrary to officers (approval or refusal), based on material planning reasons. A committee will consider these applications if:
1. the concerns could not reasonably be addressed through negotiation or planning conditions; and
2. specified senior officers, committee members and local members agree the Parish Council has raised a material planning issue, which a committee should decide.
42. The Council told me none of these conditions applied in this case. In the case of the full planning permission and the variations sought, the Parish Council were either supportive or neutral. The Council said it did not need to consult on the single application for a non-material amendment, which, in any event, it refused.
43. I agree none of the scenarios set out in the Council’s scheme of delegation applied to the applications in question. Officers could therefore decide the applications, using powers inferred by the Council’s scheme of delegation. The officer reports for each application confirm officers considered the matter of delegation each time. I have not found the Council at fault for deciding applications using delegated powers, rather than through planning committee.

Alleged failure to consider impact on existing wildlife, or address concerns during construction

44. X said the Council had progressively lowered protections in place for wildlife with each application made. X also said the Council had not addressed concerns they reported during construction.
45. The Council told me it sought an Ecologist’s view on every application. It said the Ecologist advised an ecology survey was unnecessary for the full planning application and the Council received no objections. It said it included planning conditions about bat and bird boxes. It said it maintained these conditions through each variation in permission granted. It also included information about the developer’s general responsibilities to comply with good practice and legislation covering wildlife.
46. I have considered the officer reports and relevant documents submitted. I recognise X strongly believes the Council should have imposed greater conditions. However, the evidence shows the Council appropriately consulted on matters of ecology and biodiversity. It took account of the advice it received, by imposing conditions appropriate to this advice. I have not found the Council at fault for failing to consider the impact on biodiversity when granting permission.
47. X said the Council did not act on concerns they reported in May 2023. The Council told me it did not consider these matters merited further investigation, as it had decided the development was acceptable and compliant with the approved plans. This decision followed earlier site visits. I understand the Council concluded there were no conditions about wildlife preservation attached the permissions granted, a decision reached based on advice from the Ecologist during consultation. Therefore, any potential disruption or damage to wildlife or habitats would not be a matter the Council could investigate or enforce against. Such matters would be for the Police to investigate under the legislation later cited in the Council’s complaint response. In any event, the Council was satisfied the development was acceptable.
48. It would have been better if the Council had made this point to X at the time, instead of addressing it later in its complaint response. This may have mitigated some avoidable frustration and uncertainty X experienced. However, it is clear the Council based its decision on relevant information. It decided not to investigate based on its view the development was acceptable. It also decided its enforcement options were limited in any event, given the conditions imposed on the permissions granted. The Council is correct that the Police can investigate and prosecute breaches of the legislation cited. I have not found the Council at fault for its approach.

Alleged failure to act to address concerns about noise nuisance

49. The Council imposed planning conditions specifying demolition, construction works or deliveries should only occur at specific times:
• 7.30am - 6.00pm Monday to Friday.
• 8.00am - 1pm Saturdays.
• No work on Sundays, Bank or Public holidays.
50. The Council said it received a complaint in late August 2023 about excessive noise from building work. It visited the site on two occasions in September 2023. On both occasions, the Council documented developers carrying out normal building practices. The Council said it closed the case in October 2023, after receiving no further complaints from X.
51. The Council also received a complaint about a breach of planning conditions for noise in March 2024, with construction taking place on a public holiday. The Council found this breach did occur. It took no further action following an apology from the developer and an assurance it would not happen again. It wrote to X to confirm its findings.
52. The Council told me the conditions it applied in this case were standard. It recognised there would always be some construction noise or disruption associated with development, but believed the circumstances had not warranted further investigation by its enforcement service.
53. The Council can demonstrate it investigated alleged breaches of the planning conditions. It took proportionate action when it identified a breach during one investigation and updated X as to the outcome. The Council investigated appropriately and I have not found the Council at fault.

Alleged failure to account for local and national planning policies

54. X told the Ombudsman their complaint on this point concerned:
• A lack of affordable housing in the development.
• Limited or no critical wastewater infrastructure.
• The design not being in keeping with the character of its surroundings and other buildings.
• Increased traffic and the impact on local roads.
• The overall impact on X’s amenity.
55. The officer reports for each application show the Council considered how the development accounted for its local plan and national planning policies. The reports also set out how the Council considered the impact on neighbouring properties, including X’s. The Council expanded on its decisions in its complaint responses. It addressed plot orientation and the distance between properties, before deciding there was no adverse impact on the surrounding amenities.
56. I recognise X disagrees with the Council’s decisions, and believes there should be greater detail on how the developments account for local and national planning policies. However, as set out in paragraph 20, officer reports only need to deal with the main issues. Officer reports should not be subject to hyper-critical scrutiny. The Council, as local planning authority, is entitled to weigh the evidence and decide the merits of the application. I believe the information documented in the officer report and complaint responses is sufficient to show the Council’s consideration.
57. I have not therefore found the Council failed to account for local and national planning policies when making its decision. I cannot therefore question the decision the Council made.

Alleged failure to investigate alleged breaches of planning permission

58. The Council provided evidence confirming it attended the development site in February 2024 to investigate alleged breaches of planning permission. The Council told me:
1. It viewed and photographed the development, and reviewed it against the approved plans.
2. It said the works appeared consistent with the plans, with the development being slightly further away from X’s property than planned.
3. It said all openings and fenestrations were in the correct location.
4. It said the size and scale appeared consistent with the approved plans.
59. The Council provided copies of its photographs. A comparison between the photographs and plans shows openings and fenestrations appear broadly in the correct positions, with some possible slight variations. Even if the Council had found a breach, the Council retains discretion on whether to take enforcement action, as set out in paragraph 23. The Council appropriately inspected and decided the development was acceptable. The Council provided evidence of its attendance, inspection and explained its conclusions. I am therefore satisfied the Council has considered the matter.
60. X raised concerns about the height of the development, relative to their own property. The Council told me there was no defined maximum height in the permissions granted. It said it found the overall design and construction of the development, including the height, acceptable during its inspection. Again, I recognise X strongly disagrees with the Council’s decision. However, this is a professional decision the Council is entitled to reach in its capacity as local planning authority.
61. I have not found the Council at fault for failing to investigate alleged breaches of planning permission.

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Final decision

62. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman