The Ombudsman's final decision
Summary: Mr X complains the Council failed to consider the impact of a proposal to relocate a footpath as part of a planning application for a new business on land next to his property causing loss of amenity. We have found no evidence of fault in the way the Council considered these matters. So we have completed our investigation.
The complaint
I have called the complainant Mr X. He complains the Council failed to consider the impact of a proposal to relocate a footpath as part of a planning application for a new business on land next to his property. Mr X disputes whether there is already a footpath on the land behind his property and says it will result in a loss of privacy to their home and rear garden. And noise from the new business will impact onto the family and in particular one of his children who has Autistic Spectrum Disorder.
Mr X wants the Council to keep the footpath where it has always been, so it is at least 20 metres away from his property. Mr X says the business should install fencing that cannot been seen through and noise mitigation measures.
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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (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 have read the papers submitted by Mr X and discussed the complaint with him. I considered the Council’s comments about the complaint and the documents it provided. I have considered relevant planning documents from the Council’s website.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Planning requirements The law says Local Planning Authorities (in this case the Council) should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate otherwise. 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. National planning policy is contained within the National Planning Policy Framework (NPPF).
It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application. A Local Planning Authority (LPA) must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the LPA made of them.
Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission.
Key events leading to the complaint Mr X’s property backs onto a small, wooded area that previously formed part of a railway embankment. The site is open to members of the public to walk through. It has a footpath that is a public right of way (PROW) on one part and an informal footpath that meanders through the rest of the site. This path is known as a desire line as it is an informal path made by users that tends to follow the line of the land.
The Council received a planning application from a business to erect a building on the site and fence off part of the wooded area. The Council issued a press notice about the application. The planning case officer visited the site and took photographs.
Mr X sent in objections to the proposal. These included concerns the applicant proposed to remove some trees and undergrowth and reroute the informal path along a small bank directly behind his house. Mr X said it would affect the family through loss of privacy and security.
The case officer met with Mr X on site to discuss the application. The officer and Mr X viewed the site with Mr X showing his areas of concern. The officer took more photographs of the site.
The Council’s Development Control Committee (Committee) considered the application. The Committee carried out a site visit with planning officers to view the application site before the committee meeting. An update report to the Committee on the application notes members’ visit to the application site. It explained what members were shown on the site visit. It noted members walked the existing desire line though the site and were shown where an alternative desire line could form should the proposal received permission.
At the meeting officers displayed the case officer’s photographs of the site. The Committee considered a planning officer’s report on the proposal. The report explained the proposal, relevant national and local planning policies and consultations received. This included objections from the public mainly concerned about traffic generation, highways, and parking. It also included the environmental impact of the proposal and need for such a facility.
The report explained the site was not green space or formal public open space although public access was not prevented to the land. It was intended to retain paths used by the public to cross the space. The report advised the application would result in the business occupying most of the site. This would leave an area in the north of the site with the existing PROW and an alternative desire line to the north which could form over time. And keeping most of the trees in the site.
The report considered the impact on neighbouring amenities. The officers did not consider the proposed building would result in any adverse neighbour impacts by being overbearing, overlooking or loss of light. This was because of siting, design, and separation distances from residential properties. Officers also considered it would not result in significant detrimental impact to residential neighbours by noise or disturbance.
Overall officers considered the proposed development acceptable and supported by its planning policies. So recommended the application for approval subject to planning conditions.
The Committee members heard from supporters for and objectors to the proposal. The objectors referred to a path on the application drawings that did not exist and if allowed would cause overlooking of some properties including Mr X’s home. Officers clarified the path referred to by Mr X’s property did not exist and it was on a steep railway bank. The agents indicated the path as a desire line which they believed was an old right of way. The desire line (informal path) could form there and be used by members of the public.
The Committee report looked at the issue of installing meshed fencing. It noted the Council’s Tree Officer had no objections. And that fencing could be erected under permitted development rights without the need for planning permission. The Committee considered and approved the application subject to conditions.
Council comments on the complaint The Council says the plan shows an informal woodland access along a former railway embankment. It does not suggest the applicant will create a formal path and this was noted in the committee report. The informal path does not require planning permission as no physical development or change of use was occurring. Rather it was something that could form overtime as a desire line through the site. The Council confirms the applicant is not carrying out any works to form the footpath. It is a possible footpath route that could be formed overtime by users of the land as was the case with the original desire line footpath.
The Council says Mr X comments about whether a footpath exists behind his property. It says there is no evidence of a formal or informal pathway. If it did exist historically then it was not obvious from the officer site visits as it was shown to be an old railway line on drawings. The applicant’s agent provided further clarification and historic evidence of a pathway. But the site visit photographs show that any such pathway or railway stopped over time because of vegetation growth and the new existing informal desire line in the site.
The Council confirms Members walked along the existing desire line and shown where each part of application would be located during the site visit. Members saw where the informal desire line could form, and the applicant’s agent confirmed that works would not take place to form any footpath through the site.
The Council says Mr X’s property can already been seen from the embankment behind his house from the land in question. So, if an informal path was created which followed the embankment there would be similar views to the property. The Council confirms the Committee was aware of objectors’ comments about the possible informal path. But having considered the matter decided that proposed development would not have such a significant impact on residential amenity to warrant refusing application. So, granted planning permission
My assessment
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
The evidence I have seen shows the Council advertised the planning application so residents including Mr X could comment on the application. The evidence shows planning officers visited the site and prepared a planning report on the proposal. The report considered the principal issues. These include planning policy, the application plans, objections, and other material planning considerations, including the impact on neighbouring amenity, before it made its decision.
In addition, the Committee was aware of Mr X’s objections. And the concerns raised about the informal path were raised and discussed at the Committee meeting. Members had also carried out a site visit. The Council followed the decision-making process we would expect and so we cannot say there was fault. Because of this there are no grounds for us to question the merits of the Council’s decision to grant planning permission for the development.
It was also open to the members of the Committee to raise any concerns if they were unhappy with the information provided. Members can vote against an officer recommendation if they disagree with the way the application has been appraised.
Final decision
I am completing my investigation because there was no evidence of fault in the decision-making process.
Investigator's decision on behalf of the Ombudsman