The Ombudsman's final decision
Summary: We found no fault in how the Council reached its planning decisions for development near Miss X’s home.
The complaint
Miss X said the Council failed to properly consider the impact of development on her, and her neighbours’, homes. Miss X said the development, now built, was overbearing and badly affected her outlook and light to her home. Miss X wanted the Council to compensate her for the impact of the development on her home.
The Ombudsman’s role and powers
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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: considered Miss X’s written complaint and supporting papers; talked to Miss X about the complaint; considered the complaint correspondence between Miss X and the Council; considered planning information about the development available on the Council’s website; asked for and considered the Council’s comments about the complaint; shared the Council’s comments on the complaint with Miss X; and shared a draft of this statement with Miss X and the Council and considered any comments received before making a final decision.
Background
Most development needs planning permission from the local council. Developers may apply for either outline or full planning permission. An application for outline planning permission seeks approval to the general acceptability of the development. The developer must make further ‘reserved matter’ applications to get approval to details of the development. The details that may be ‘reserved’ for later approval are access, appearance, landscaping, layout, and scale of the development.
Before deciding a planning application, councils must publicise the proposals so people and other bodies may comment on the development. The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a council’s Statement of Community Involvement (SCI). Councils must publish all applications on their website. Here, the law also required the Council to give notice in a local newspaper. And either put up a site notice or send out letters to the owners/occupiers of properties adjoining the application site (‘neighbour notification letters’). The Council’s SCI went beyond the legal requirements and said it would use both site notices and send neighbour notification letters to properties within 80 metres of the application site boundary. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.
Councils must make their planning decisions in line with relevant policies in their local plans unless material considerations indicate otherwise. Material considerations concern the use and development of land in the public interest. Examples of material considerations are overlooking, traffic generation and noise. Private matters, such as the developer’s behaviour or property values, are not material considerations.
The Government’s National Planning Policy Framework (NPPF) is a material consideration. It says local plans and planning decisions should apply a presumption in favour of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs. Where there are no relevant local plan policies, the presumption means granting planning permission unless any adverse impacts significantly and demonstrably outweigh the benefits when assessed against the NPPF, or the NPPF indicates development should be restricted.
General planning policies may pull in different directions, for example, promoting employment development and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.
Councils often report on development proposals. Their reports will refer to the relevant planning policies and other material planning considerations. Reports will also set out the planning case officer’s assessment of the main planning issues and their recommendation to grant or refuse planning permission.
The courts have considered cases about council planning reports and decisions. They have said reports should not be subjected to “hypercritical assessment” and do not merit challenge unless their overall effect is to “significantly mislead” the decision maker on material issues. And decision reasons can be briefly stated. But reasoning should not result in substantial doubt about whether the decision maker understood the law or policy.
Developers may apply to the local council to change their proposals after the grant of planning permission. It is for the local council to decide, as a matter of fact and degree, if a change is ‘material but minor’ or ‘non material’. An application for a ‘minor material’ change must be publicised but no publicity is needed for a ‘non material’ change.
What happened The Council received a planning application for major commercial development (‘the Application’). The Application site had been, and in part continued, in business use and was shown in the Council’s local plan as employment land. Miss X’s home was separated from the site by a public highway. The Council uploaded the Application and its supporting papers to its website.
The Application sought outline planning permission reserving all details for later approval (see paragraph 5). The Application included supporting papers and plans. One plan (‘the Plan’) included a ‘maximum building line’. The Application papers said the Plan ‘set out the limits of built development within the site while allowing flexibility to respond to market requirements at the reserved matters stage’. Another plan, ‘the indicative masterplan’, showed in detail how the site might be developed. The masterplan showed a separation distance of 15 metres between a possible new building and the site boundary near Miss X’s home.
The Council publicised the Application by posting letters addressed to ‘the occupier’ to over 180 nearby properties. The Council also placed a notice both at the site and in a local newspaper. The Council received six representations from local people.
The Council prepared a report assessing the Application. The report identified key issues for deciding the Application, including the impact of the development on neighbouring amenities. In considering neighbouring amenity, the report said existing site buildings were a substantial distance from nearby homes. The report referred to the Plan and said new buildings would likely be significantly closer to nearby homes than previous buildings but of lower height. The report said the new buildings would also be heavily screened from nearby homes by existing and proposed landscaping. Overall, the report found the impact of the development on neighbouring amenities acceptable.
The Council granted outline planning permission for the development (‘the Permission’). The Permission included a landscaping condition to screen the site and enhance visual amenities. A further condition said any application for approval of reserved matters ‘should be in strict accordance with the Plan’.
Over the next few years, the Council received and decided several applications about development of the site. The applications included minor material and non-material changes to the Permission and the discharge of some of its conditions. The approved applications included changes to the Plan but not to the ‘maximum building line’ closest to Miss X’s home. The Council also approved reserved matters applications for different parts of the site.
Eventually, the Council received a reserved matters application for the part of the site near Miss X’s home. The proposed buildings parallel to Miss X’s home were within the Plan’s ‘maximum building line’, which was 17.1 metres from the site boundary near Miss X’s home. And one building was substantially set back like previous site buildings (see paragraph 16). The Council publicised the application again by sending letters to over 180 nearby properties and by both site and newspaper notices. The Council received four representations from residents with comments about noise and disturbance from access roads.
The Council prepared a report assessing the details in the reserved matters application. The report found the detailed proposals had an acceptable impact on the character and appearance of the area. And the layout and scale of the detailed proposals complied with the Plan. The report, in referring to residents’ representations, said noise had been considered at the outline stage and was controlled by conditions on the Permission (as varied). And proposed internal access roads would not create additional noise issues. The report said, while some existing planting would be removed near the boundary near Miss X’s home, there would be new planting. And the detailed proposals would not have a detrimental impact on residents’ amenities. The Council approved the reserved matters.
The Council continued to receive planning applications about development of the site. One application was for a minor material amendment to the Plan that included moving the ‘maximum building line’ closer to Miss X’s home (‘the Plan Application’). The Plan Application showed the maximum building line 12.1 metres from the site boundary near Miss X’s home. Another application sought reserved matters approval for different detailed proposals on the site near Miss X’s home (‘the Detailed Application’). The Detailed Application showed a building closer to Miss X’s home than those previously approved by applications to develop the site. This building was 13.3 metres from the site boundary near Miss X’s home and 24.9 metres from the rear wall of her home.
The Council processed the Detailed Application and the Plan Application at the same time. This included publicising them by again sending separate letters for each application to over 180 properties and using site and newspaper notices. The Council received one representation in response to the Detailed Application and four in response to the Plan Application.
The Council also consulted other bodies and specialist officers about the Plan and Detailed Applications. The Council’s Tree Officer raised concerns about landscaping the site. Another consultee (‘the Body’) raised concerns about the impact on nearby houses, which included Miss X’s home, of moving the proposed buildings closer to the site boundary. The Body asked for more information to show how the reduced separation distance could provide a dense landscape boundary to screen the development from peoples’ homes.
In response to the concerns of the Council’s Tree Officer and the Body, the developer provided more information. The developer’s information included a briefing note, plans and cross sections, and comments from their landscape architect. The developer said the original Plan had not assessed the impact of the development on nearby homes. Its ‘maximum building line’ did not therefore set out the point beyond which substantive adverse impacts might arise. The developer said its added information showed changing the ‘maximum building line’ had no material impact. And the previously approved buildings and those proposed by the Detailed Application had a similar visual impact. The developers also said they would strengthen tree planting along the site boundary with nearby houses. They would plant trees 4 to 4.5 metres tall to supplement, and eventually grow to match, existing 10 to 12 metre trees. And existing ground planting 2.5 metres high would be widened to provide a 4 to 6 metre landscape buffer. The developers said a significant separation distance of about 24 metres would remain between the proposed buildings and nearby houses.
The Body considered the developer’s further information. The Body then told the Council the proposed depth and extent of planting on the site would provide adequate filtered screening.
The Council prepared separate reports assessing the Detailed and Plan Applications and each report referred to the other application. Both reports included information about the application proposals; the planning history of the site; planning policy, including Policy PL2; and third-party comments. Policy PL2 concerned the impact of development on nearby property by considering, for example, issues of overlooking, loss of light and outlook.
The report on the Detailed Application (‘Report D’), after summarising their comments said, having considered added information, the Tree Officer and the Body had no objections to the proposals. Report D also considered scale, appearance, layout, landscaping, and access. Report D said the scale of the development was in line with the Permission. And the materials for the new buildings were like those approved for development on other parts of the site. Report D also said layout and access would help prevent noise impacting on nearby residents. And existing and proposed landscaping would provide a natural visual and noise barrier between the buildings and nearby houses. Report D said, combined with conditions on the Permission, the proposals would have a limited impact on residents’ amenities.
Report D also said the related Plan Application sought to change the Plan, including bringing the ‘maximum building line’ five metres closer to nearby homes. Report D said this was a marginal change and proposed screening would help prevent the development becoming overbearing for nearby houses.
The report on the Plan Application (‘Report P’) included an assessment of the changed ‘maximum building line’ on neighbouring amenities. Like Report D, Report P referred to layout changes both helping to buffer noise from the development and moving new buildings five metres closer to nearby houses. Report P said the separation distance between a new building and existing houses, which included Miss X’s home was 25 metres. Within the development site there was existing, and would be new, planting as approved in a landscaping scheme for the site. The separation distance with the landscaping meant the development would have an acceptable impact on neighbouring amenities and so would comply with Policy PL2. Report P referred to existing planning conditions aimed at reducing any noise impacts from the development. It also proposed a new condition to further address any noise impacts once the exact use of the new buildings was finalised.
Both Report D and Report P ended with recommendations to approve the Detailed and Plan Applications, which the Council did.
Building work started and, as it progressed, Miss X became concerned about the size and position of the building nearest her home. After contacting the Council for information about the development, Miss X complained. Miss X questioned the lack of information about how the development adversely affected light to her and other nearby homes. The Council said it had taken account of amenity impacts in deciding to grant the Permission (as varied) and considered Policy PL2 in approving the Detailed and Plan Applications.
Miss X replied saying the Council had not properly checked the developer’s information about the acceptability of bringing the built development closer to her home. Miss X said the developer’s information was misleading and deprived her, and her neighbours’ homes of light and had an enormous visual impact. The Council confirmed the Detailed and Plan Applications reduced the separation distance between the built development and Miss X’s home from 15 to 12.5 metres. The Council said it had considered the impact of reducing the separation distance on nearby homes. Its assessment was the reduction would not have a detrimental impact due, in part, to existing natural screening.
Miss X said the Council had not properly consulted residents about reducing the separation distance. And repeated the Council had not adequately assessed the impact of moving the development. Miss X said the Council should have sought light assessments rather than relying on the developer’s misleading information. Miss X said, other than asking the developer to plant a few trees, the Council had not acted to protect residents’ interests. The Council said it had properly publicised the applications, going beyond its normal requirement by sending letters to over 180 properties. The Council also repeated that it had assessed the impact of moving the development closer to nearby homes. The Council said it had not found the change detrimental to residents due, in part, to the remaining separation distance and existing screening.
In coming to the Ombudsman, Miss X said the Council’s planning policies had not been fit for purpose when it decided applications to develop the site. Miss X pointed to Policy PL2 not existing when the Council granted the Permission. Miss X also pointed to the Council’s December 2021 adoption of an ‘addendum’ to its Harlow Design Guide that included polices about tall buildings and privacy and overlooking. Miss X also said she and other residents had not received the Council’s neighbour notification letters about the development.
Consideration Introduction We are not an appeal body and so do not take a second look at a planning decision to decide if it was right or wrong. Our role is to consider whether the Council acted with fault in reaching its decision. This means we look at how the Council makes a decision. If we find it followed the correct process, we cannot question the resulting decision however strongly people may disagree with it.
Publicity Miss X she said she did not receive the Council’s neighbour notification letters. The Council provided evidence it publicised the Detailed and Plan Applications, including sending neighbour notification letters to nearby homes. The Council’s publicity went beyond both legal requirements and its then SCI.
It was unfortunate Miss X was not aware of the Detailed and Plan Applications. However, I saw no evidence this was due to fault by the Council. Post does go astray and not everyone opens letters addressed to ‘the occupier’, which was the wording used by the Council. Overall, I had no grounds to find the Council at fault in how it publicised the Detailed and Plan Applications.
The Council’s planning policies Miss X said the Council lacked suitable planning policies to properly consider the impact on her home of developing the site.
Councils keep their development plan policies under review and must follow a legal procedure, allowing people to comment, before changing or adding to them. However, councils must decide planning applications using adopted planning policies. And, where new policies are emerging, they gradually gain ‘weight’ in decision making as they move through the legal procedure to formal adoption. Councils will also take account of the NPPF’s presumption for sustainable development when dealing with applications for which they do not have relevant adopted policies (see paragraph 8). So, while I recognised Miss X’s concerns about the Council adopting a new local plan in December 2020, which included Policy PL2, and adding to its Design Guide policies in December 2021, I found no fault here.
The impact of the Detailed and Plan Applications on nearby homes Miss X said the Council failed to properly consider the impact of the Detailed and Plan Applications on her home.
The Council, in its reports on the various planning applications for the site, and in responding to Miss X’s complaint, referred to several separation distances. The key changes that affected the now built development closest to Miss X’s home concerned: moving the maximum building line five metres so it was 12.1 metres rather than 17.1 metres from the site boundary; and moving a proposed building closer to the site boundary so rather than the ‘indicative’ 15 metres it was 12.5 metres from the site boundary.
The Council referred to the Tree Officer and Body’s concerns about the impact of the Detailed and Plan Applications on nearby homes to the developer. The developer then provided added information about the impact of moving the development closer the nearby homes. The evidence therefore showed the Council was both aware of and responded to the issue.
Report D and Report P both addressed the impact of the development on nearby homes. I recognised Miss X might have expected and wanted Report D and Report P to consider neighbour amenities in more detail. That Report D and Report P could have said more does not necessarily mean the Council fell below acceptable administrative standards in considering the issue. And, here, Report D and Report P provided evidence the issue was taken into account in deciding the Detailed and Plan Applications. I did not therefore have grounds to find the Council failed to take account of the impact of the changed proposals on nearby homes. Having taken account of the issue, it was for the Council, as decision maker, to decide whether the impact was acceptable in planning terms (see paragraph 9). And, without evidence of fault, I could not question its resulting decision that such impact was acceptable (see paragraph 2).
Final decision
I completed my investigation finding there was no fault in how the Council reached its decisions on the Detailed and Plan Applications.
Investigator's decision on behalf of the Ombudsman