The Ombudsman's final decision
Summary: Mr B complains the Council failed to properly consider a reserved matters planning application and subsequent discharge of condition application for a nearby housing development which he says will allow an unacceptable development to harm both his residential amenity and the local area and cause potential issues of drainage and flooding. We have found no fault by the Council.
The complaint
The complainant, whom I shall refer to as Mr B, complains the Council failed to properly consider a reserved matters planning application and subsequent discharge of condition application for a nearby housing development.
Mr B says because of the Council’s fault, he will suffer from an unacceptable development which will harm both his residential amenity and the local area and cause potential issues of drainage and flooding.
What I have investigated The final section of this statement contains my reason for not investigating other parts of the complaint.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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)
How I considered this complaint
I read the papers provided by Mr B and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr B. I have explained my draft decision to Mr B and the Council and considered the comments received before reaching my final decision.
What I found
Background and legislation Considering planning applications The general power to control development and use of land is set out in the Town and Country Planning Act 1990 . Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
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.
Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
Outline applications are used to establish the principle of a proposal, leaving the ‘reserved matters’ to be considered at a later stage. Applications may be made with some or all matters reserved until later. The reserved matters can include -: appearance; access; landscaping; layout and scale.
Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the authority. There is no requirement for publicity.
Original 2019 outline planning application The Council granted outline planning permission for a residential development towards the end of 2019 with all matters reserved. An objector has raised detailed concerns about a survey provided with the outline application and the classification of existing agricultural land at this stage.
I have not investigated the Council’s consideration of the outline planning application as it is caught by the restriction outlined at paragraph 6 above which I explain in more detail at the end of this statement.
Key events The Council received a reserved matters application in 2020. This included access for the whole site and appearance, landscaping, layout and scale for the affordable housing element of the proposals and public areas only. There are other self-build plots that will each have individual reserved matters applications in due course.
Mr B made representations to the Council about the reserved matters application. These included his objections about the vehicle access having issues with sight lines and not complying with the Manual for Streets guidance and the pedestrian route to the village being along a path not in the applicant’s ownership. Mr B also noted the proposed drainage was a gravity system rather than pumped system and would require raised levels. Mr B also noted the affordable housing was in one cluster and the proposed replacement hedges were not adequate to provide traditional Cornish hedging.
The Council considered the reserved matters application in its original form to be of poor design and sought improvements to the scheme during the planning process.
The Council received an initial consultation response from its affordable housing team in July 2020. The Council notes these comments are wrongly dated August due to a typing error. This response stated the team did not support the proposed development. The reason provided was because the layout and segregation of the affordable housing was not acceptable and the development would not be ‘tenure blind’. It was noted the affordable units were all grouped together at the front of the site facing the road and there was a clear segregation between these and the open market tenured properties. There was also a concern about the amenity space available for some of the affordable units.
There followed an updated response in response to a draft revised layout. This also concluded the team did not support the draft revised layout although it noted some improvements. The team confirmed the distribution of the affordable units was better but they remained in a single cluster to the east of the site with significantly smaller plot sizes. The team explained a preferred layout would be to ‘pepper-pot’ both the affordable and open market units with more equal plot sizes.
The Council received revised plans and formally reconsulted its affordable housing team on these in February 2021. The response stated the team supported the proposed development. The reason provided was because the revised site plan showed the affordable units had been moved within the site and were now more integrated. It was noted the affordable units were still grouped together but that they had been moved from the side of the site facing the road which meant they were much more integrated within the development. The team considered the revised layout was acceptable.
The Council’s Highways team were also consulted on the reserved matters application and noted the access and its impact on the local highway network were considered acceptable in principle at the outline planning application stage. Highways raised no objections to the reserved matters application subject to the addition of planning conditions.
The Council has highlighted that consultation for the reserved matters application was received shortly before the Government introduced the COVID-19 lockdown. In view of this restriction the highways team did not consider it was necessary to re-visit the site due to the knowledge from previous site visits at preapplication stage in 2016 and outline application stage in December 2018 and early 2019. It was further noted the issues raised during the consideration of the reserved matters application related to design standards including an interpretation of guidance, ownership/civil matters which could be considered using digital mapping with the plans and information submitted with the application.
The case officer’s report for Planning Committee for the application set out the relevant policies, material planning considerations and provided a summary of the consultation responses and representations received which included the objections received from the Parish Council, Mr B and other residents. These included issues about the proposed access including the visibility splays not being achievable and the ownership and safety of the route to be used as a path. It also set out representations about the affordable housing all being in one cluster, loss of Cornish hedging and inadequate replacement and concern about a potential increase in land levels leading to an overbearing development and potential overlooking. The report noted some other representations related to matters that had already been considered and decided at the outline planning permission stage. It was further noted that detailed drainage matters would be considered through an application to discharge the relevant condition. There was also an update report prepared for the Committee which set out further representations which had been received about the plot size of the affordable housing which meant they were not ‘tenure blind’ and the access did not comply with the provisions of the Manual for Streets guidance.
The case officer provided an assessment of the above and referred to the impact on the nearest residential properties. The report also assessed that the visibility splays could be achieved and accepted ownership of the rear lane was unclear but would provide safe and suitable access for pedestrians. The report refers directly to the potential conflict with farm vehicles and noted there were recessed waiting spots and the stretches involved were sufficiently short and straight to minimise the risk of accidents. The report also noted that it may have been preferable to have secured a more intermingled tenure across the site but there were practical considerations which, on balance, meant the application as made was acceptable and should be approved.
There is an incorrect reference to the relevant outline planning permission at one point within the report. The Council has apologised for this administrative error. I do not consider this can reasonably be said to have affected the Council’s consideration of the application or the outcome.
Mr B and the Parish Council attended the Planning Committee meeting and spoke against the application. A supporter of the application then spoke before officers responded to Members questions. This is in accordance with the Council’s published running order for Planning Committee meetings. The Planning Committee resolved to grant planning permission subject to conditions.
The Council received an application together with submitted drainage plans in 2021 to discharge a condition of the 2019 outline planning permission which required details of the foul and surface water drainage system before development started. The Council considered the information provided was acceptable and discharged the condition. This is largely a technical decision and one the Council is entitled to reach.
Concern has been expressed that the drainage proposals will require an increase in land levels. The Council has provided an extract from ordnance survey to show the site is relatively flat for this location. The spot height levels and contours of the undeveloped site were submitted as part of both the outline and reserved matters applications. These showed there was no increase in ground levels proposed as part of the scheme. The Council notes this position has not changed in the details submitted with the discharge of condition application for drainage.
My consideration 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.
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. 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.
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 residents when doing so. I have seen no evidence of fault in the Council’s consideration of the reserved matters application or discharge of condition application.
Final decision
I have completed my investigation as I have found no evidence of fault by the Council.
Parts of the complaint that I did not investigate I have not investigated the Council’s consideration of the original outline planning application for the development. The outline planning application was granted in 2019. Mr B complained to the Ombudsman in 2022. A complaint about the Council’s consideration of the outline planning application would be caught by the restriction outlined at paragraph 6 above and Mr B has not provided a good reason for me to accept a late complaint
Investigator's decision on behalf of the Ombudsman