Summary: Mrs X complained on behalf of a local resident’s group about the way the Council granted planning permission for a new business development operating 24 hours a day. Mrs X said the new development will result in loss of amenity to residents. We found no fault in the Council’s consideration of the planning application.

The complaint

1. Mrs X complained on behalf of a local resident’s group about the way the Council granted planning permission for a new business development operating 24 hours a day.
2. Mrs X complained the Council failed to properly consider the application and its impact on residential amenity. She said the application has not been through a fair and robust assessment and there are significant issues the Council failed to address. She said the Council repeatedly withheld information from residents and showed bias towards the applicant.
3. Mrs X said the new development will result in loss of amenity to residents. The site will be overdeveloped, overbearing, and will create overshadowing and a sense of enclosure. The site will also create noise, traffic, air and light pollution which will be a nuisance to residents.

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The Ombudsman’s role and powers

4. 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)
5. 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

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

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. 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, access to the highway, traffic generation, and noise.
11. 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.
12. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. 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.
15. 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.

What happened

16. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
17. A developer applied for planning permission to demolish existing business buildings and redevelop the site, including construction of a new warehouse distribution centre.
18. The developer’s application included an air quality assessment, an acoustic report, and a transport statement.
19. The air quality assessment relies on data collected for the area by the Department for Environment, Food and Rural Affairs (Defra) in 2018. The assessment confirms the background concentrations of pollution are well below the target objectives. It compares the plans to the previous use of the site, and states the proposed development is expected to lead to a net drop in traffic compared to the previous commercial use. The assessment states the proposed will have an insignificant effect on air quality, so the applicant did not need a detailed air quality assessment.
20. The acoustic report showed noise from the new facility will not have a significant impact on the nearest homes.
21. To form the report, an acoustic engineer surveyed background noise at the boundary of the site over three days. Their assessment indicated noise from buildings within the development would have low impact at the nearest homes. The predicated noise levels were within target values to achieve night time sleeping conditions within homes with open windows.
22. The acoustic engineer considered vehicle movements will have low impact during the day but could create a borderline low adverse impact during the quietest period of background noise, which was during the early hours of Sunday morning. The same was true for unloading activities. However, night time background noise at all other times was significantly higher. Overall, they found night time vehicle movements and unloading activities would have low impact most of the time.
23. Predicted sound levels for Heavy Goods Vehicle (HGV) movements were significantly below background noise at the nearest homes. The assessment also showed noise from HGV reversing alarms at the nearest homes would have low impact, and background noise would provide a masking effect.
24. The transport statement says the following:
• Vehicles can enter and exit the site in a safe and efficient manner, and in forward gear. It also says there is enough parking.
• The site is accessible on foot and by public transport.
• The planning permission in place for the site previously meant there could be up to 62 two-way vehicle movements on weekday mornings, and 53 in the afternoon and evening.
• The proposed development was forecast to produce 86 two-way trips on weekday mornings and 74 in the afternoon and evening. This is an increase of 24 two-way vehicle movements on weekday mornings and an increase of 21 for weekday afternoons and evenings.
• The increase in traffic equates to one extra vehicle every three minutes compared to the previous use of the site, which will have a minimal impact on the local highway network.
25. The Council received over 300 letters of objection from the public. The issues raised included:
• Other more suitable locations.
• No benefit to the community.
• Loss of housing.
• Housing a preferable use for the site.
• Increase in HGV traffic and damage to local roads.
• Lack of HGV parking on site, resulting in potential overspill.
• Highway and pedestrian safety concerns.
• The roundabout accessing the site is already congested.
• The development would dominate the skyline.
• The development will create more noise.
• Light disturbance.
• Closeness to residential homes.
• Contrary to the Council’s Local Plan and the NPPF.
• Loss of existing jobs and businesses.
26. The Council consulted the Borough Council’s transport planning and environmental protection services. It also consulted the highway authority and Environment Agency. The consultees recommended conditions on issues like access, parking, noise and lighting, but there were no objections.
27. Residents employed a planning consultancy firm to consider the plans. They produced a report stating the application constitutes unacceptable development, resulting in harm to neighbouring residential amenity.
28. Their report states the development is inappropriate for the area due to nearby residential properties. It states there is overdevelopment compared with the existing business use, and increased noise. It said units on site will have an imposing appearance unacceptable for residents, there will be overshadowing, loss of light, and the visual impact will be significant. It also states there will be significant harm due to increased traffic and congestion.
29. Due to the number of objections, plus an objection from the Town Council, and a ‘call in’ from a local councillor, the Council’s planning committee (the planning committee) considered the application.
30. The planning case officer (the case officer) produced a report to the planning committee recommending granting permission subject to conditions. Their report says the transport statement showed only a small increase in vehicle movements. The developer anticipated an increase of 24 two-way movements in the morning and 21 in the afternoon and evening. The case officer said an existing access point to the site would be closed, secured by a planning condition, to prevent HGVs using an access road which is subject to an environmental weight limit.
31. The case officer recognised the development will cause a change to the vista on a road which includes residential homes. However, they considered it can be accommodated, based on the scale of the development. They also said a proposed planting scheme will significantly reduce the impact, which will be acceptable within five years.
32. The case officer noted objections about the adequacy of the applicant’s acoustic report. They considered the report is brief but contains the necessary detail to assess the application. The case officer also noted the noise monitoring took place during COVID-19 restrictions, which likely meant lower background noise than would be the case after the restrictions. They considered this made the report more robust.
33. The case officer considered there would be no material impact on the highway network, noise, or air quality. They also considered there would not be an unacceptable harmful impact on the amenity of the area, considering the size and scale of proposed buildings and their relationship to the residential area. They considered the proposals would increase jobs and the benefits outweighed the impact on the street scene and character of the area.
34. The planning committee voted to grant planning permission for the development, subject to conditions, in June 2023.
35. Mrs X complained.
36. The Council said it consolidated Mrs X’s queries by identifying the key issues. Its complaint response states:
• The answers provided by the case officer at the planning committee meeting were enough. It is not usual process to provide members with reports, such as the environmental report, but to summarise responses to the reports by consultees. All information referred to is available in the public domain and members could have asked for more information if necessary.
• There was an error within the case officer’s report on the addresses of the houses the developer planned to demolish. The report was reviewed twice before the planning committee meeting, but the error was likely missed as it is a typographical mistake.
• Although the error is repeated twice, the visual plan is correct, as were six other references. The error did not undermine committee members’ ability to understand the plans. It also confirmed committee members visited the site for an inspection.
• The local highway authority was satisfied with the parking provision on site and accepted the applicant’s transport statement covering vehicle movements.
• The HGV parking bays are hybrid, allowing for rigid vehicles and trailer parking. The end user of the site will need to determine whether it is suitable for their operations. This is controlled by an application to use the site to operate HGVs and is overseen by the Government’s Traffic Commissioners.
• Access to a local road when exiting the site is unrestricted. The police are responsible for enforcing the 7.5 tonne weight limit. The Council cannot withhold planning permission based on whether vehicles will comply with road traffic legislation.
• The number of HGVs accessing the site over a 24-hour period is not known. The acoustic report is based on a worst-case scenario of noise in any one-hour period during the day, or 15 minutes at night. The monitoring was representative of site activities during busy and quiet times and was robust enough. The data used from other sites, for activities such as HGVs reversing, reversing beepers, forklift truck movements, and electric gates, are commonly used when predicting noise levels.
• Air pollution modelling covered all major roads and residential areas, schools and hospitals. The potential increase in traffic was compared against what would be allowed under the previous planning permission.
• The air quality report was assessed by the Council’s Environmental Protection team. They considered it provided enough information to assess the impact of the proposed development and decide it was acceptable.
• The plans will significantly change the street scene and the proposed buildings will be visible. However, the development will be about 55 metres away from residential homes and this, and proposed landscaping, will mitigate the impact to acceptable levels.
• Residents can contact its planning enforcement team if light disturbs their sleep.

My investigation

37. Mrs X told me the Council has not provided them with reports or data to support its findings and left many of their questions unanswered. She considers there are significant issues the Council has failed to address, and it has not properly considered the impact on residents. Mrs X does not believe the Council properly considered what they see as the overdevelopment of the site compared to before.
38. Mrs X told me residents got their own independent report on the planning application from a firm of town and country planners. Their report found technical issues with the application and said the Council should refuse it. Mrs X considers the Council ignored their report.
39. Mrs X said the planning case officer’s presentation to the planning committee contained errors, such as addresses and property details, and the applicant’s agent made untruthful statements in the application.
40. Mrs X said residents objected to HGVs accessing the site, and the road for one access point has a weight limit that would not allow HGVs. She said the Council did not tell planning committee members the road in question is the most direct route. She also said the Council described the increase in HGV use as ‘negligible’, but did not give figures.
41. Mrs X said planning officers believed residents would not hear noise from reversing beepers of HGVs and forklifts. However, this was just their opinion. There is no evidence. Mrs X said residents have heard noise since work started, both inside and outside their homes, and the Council did not give this due consideration.
42. Mrs X said the Council has not based its views on air quality on any measurements. She argues there will be an extra 500 HGV journeys a day, which will negatively impact air quality.
43. The Council told me the application was subject to detailed assessment including input from all relevant consultees. The Council’s Development Management Committee (DMC) decided the application, having considered all material matters, including those raised by the public. Members of the public had the chance to address the DMC at the meeting.
44. The Council accepted instances in the case officer’s report to the DMC where house numbers for the nearest property were wrong. However, it said planning committee members understood the relationship based on other references in the case officer’s report, from the plans, and from a site visit.

Analysis

45. 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.
46. I reviewed the planning consultant’s report produced for residents. I did not find the report touches on any material issues the Council has not considered. Mrs X considers the Council ignored the report, and the views of residents. However, on the evidence seen, the Council has shown it considered the objections it received, and the case officer engaged with the issues raised by residents within their report to the planning committee.
47. The consultant employed by residents considers the plans are inappropriate and the Council should have refused planning permission. They are entitled to their professional opinion, but so are Council officers.
48. The air quality assessment, acoustic report, and transport statement were all produced by professionals in their relevant field. I cannot question the professional judgement of the authors, and I found no evidence the reports were inaccurate or not detailed enough to allow a robust consideration of the application. The statutory consultees did not object to or comment on the reports. I found the Council was entitled to rely on the findings of these reports in its assessment of the application.
49. Mrs X highlighted errors in the case officer’s report. We do not expect reports to be perfect. I am satisfied it examines the material planning considerations and made committee members aware of the relevant issues. Committee members had access to all documents associated with the application and visited the site before reaching a decision. I am satisfied the errors were not material and do not call the committee’s decision into question.
50. Plans of this nature were always likely to be controversial and unpopular with residents, but objections and public outrage are not, in of themselves, reasons to refuse planning permission. I found the Council properly considered the material planning issues and the objections it received. The Council recognised the new development will impact local residents. However, it considered the impact was not significant enough to refuse planning permission. It also considered the benefits outweigh the harm. They are decisions the Council is entitled to reach.
51. I have considered the steps the Council took to assess the planning application, and the information it considered when deciding to recommend approval of planning permission. There is no fault in how it took the decision, and I therefore cannot question whether that decision was right or wrong.
52. I do not criticise the Council for not responding to each and every question Mrs X raised in her complaint. It has addressed the material points and that is enough.
53. If Mrs X or other residents experience noise or light nuisance, they can report this to the Council’s planning enforcement team or its environmental health service.

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Final decision

54. I completed my investigation. I did not find fault in the Council’s consideration of the planning application.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman