The Ombudsman's final decision
Summary: Mr X complained about the Council’s failure to protect his amenities after it approved a planning application for the estate of houses where he lives. We ended our investigation as negotiations that might improve Mr X’s situation are ongoing and so we cannot, at this stage, properly assess the injustice any fault might have caused.
The complaint
Mr X lives on a housing development that was built several years ago. The Council approved an application for the development, subject to conditions. Mr X complained about the Council’s failure to enforce planning conditions relating to: measures to protect occupants from external noise; and ensuring no house was built within 15 metres of a sewage pumping station.
Mr X said his amenities are affected by noise and foul smells.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: we cannot show that any fault has caused an injustice to the person who complained that we can remedy, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I read Mr X’s complaint and spoke to him about his complaint.
I read the Council’s response to the complaint and discussed it with a planning manager. I considered documents from its planning files, including the plans and the case officers’ reports. I accepted information from the local residents’ association and discussed the issues with one of its representatives.
I gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. On larger developments, applicants often submit ‘outline’ applications, with plans that give an indication of what is proposed to be built, and include some details, usually including details of access to the highway. An outline approval can be followed by a ‘reserved matters’ application, which will provide all or most of the details needed to make a decision.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Planning considerations do not include things like: views from a property; the impact of development on property value; and private rights and interests in land.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
What happened The development was approved subject to planning conditions, after approval of both outline and reserved matters applications. The development was to be built next to a very busy road. There was an existing sewage pumping station nearby. A new sewage pumping station was built on site. It is the operation of the new pumping station that causes the complainant concern.
The conditions included: Noise prevention requirements: Before development took place, the developer had to submit and have approved in writing, an assessment from a competent person to show that the development was constructed to provide sound protection, including effective ventilation, in accordance with the relevant British Standard. The condition went on to set maximum night-time noise levels in living rooms and bedrooms. The decision notice says the purpose of the condition is to protect the residential amenity of nearby residents. The Council discharged the condition when it received a letter from a noise consultant, but before the noise protection measures were installed.
Pumping station controls: There is a sewage pumping station within 15 metres of site, but there should be no development within 15 metres from the boundary of a sewage pumping station of this type. The decision notice says the purpose of the condition is to protect the residential amenity of future occupiers.
Development work began but the terms of the conditions were not met. This was because: windows and doors were inserted into the new houses that did not meet the British Standard, but the Council had already discharged the planning condition; and the layout plans were changed, so that two houses were built within 5 metres of a sewage pumping station. I have seen no evidence to show this condition was discharged.
The Council accepts that there are issues with the wording of both planning conditions. In relation to the first condition, relating to a sewage pumping stations, the Council said: It cannot see why the sewage pumping station condition was imposed, or why a 15-metre buffer zone was necessary. It said, on reading the sewage pumping station condition again, it related to an existing pumping station, though a new one had also been built on site.
It realised residents would prefer the sewage system to be adopted by the local water company, but it was under no obligation to require this to happen. It was the Council’s understanding that the developer always intended the system to remain privately owned and run by a management company paid for by residents. It provided a copy of a letter from the developer to the water company that supported its understanding.
Its building control officers said what had been built was not in breach of building regulations.
It accepted that it could not enforce this planning condition because it had approved an amended layout plan, with houses much closer than 15 metres to a new pumping station.
In relation to the second condition, which was about noise protection measures, the Council said: It accepted there was fault in the wording of the condition, as it requires the developer to do something that is not possible. This is because it requires the developer to provide an expert report before work began, which showed how the development has been constructed, after work has completed.
However, it was working with the developer to achieve the purpose of the condition. The developer had already agreed to replace windows with those that did comply with the relevant British Standard, and many residents had already taken up this offer.
It is aware that many residents have concerns about doors and vents, which it intended to address in ongoing discussions with the developer.
A representative of the residents’ association has told me that the local water company would be willing to consider a formal application to adopt the sewage system, including a pumping station.
I spoke to a representative from the water company, who confirmed there was no obligation on new drainage systems to be built to an adoptable standard, and developers could insist systems remain privately owned and maintained.
Water UK issues guidance on how sewage systems should be built. The guidance includes a table to show how close different types of pumping stations should be from residential dwellings. The distances range from 5 to 15 metres, depending on the type of pumping station.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation, we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
Noise protection condition It is likely further investigation would result in findings of fault. The noise protection condition is poorly written, and at least, ambiguous. I checked the condition discharge application and the case officer’s report but saw no reason to explain why the condition was discharged before the noise protection measures (doors, windows and vents) were installed. As with any potential fault, we might also consider any delay it might cause and the impact this might have on complainants.
Sewage pumping station The Council says it does not know why the specific 15 metre buffer zone was imposed and that the condition was aimed at an existing off-site pumping station, not the new pumping station, built within 5 metres of two houses.
When looking at how councils make planning decisions we expect to find some evidence, albeit briefly stated, showing the reasons why the main planning issues were decided. The Council says it does not know why the buffer zone was imposed, so it is clearly possible we might find fault here too: this is because the records lack explanation and evidence of reasoning. If the Council’s interpretation of the sewage condition is correct, it raises the question of why it was necessary to protect the public from an existing off-site pumping station, but not the new, on‑site facility, which is much closer to residents and so presumably more likely to affect their amenity.
However, we now know the Council discharged the sewage condition before it approved a new layout that conflicts with this condition. I have seen no evidence that explains why this happened. The buffer zone was imposed to protect amenity, but it seems the Council cannot now enforce that condition.
Determining potential injustice To determine the extent to which any fault has caused injustice to an individual, the background circumstances need to be settled. At the moment this is not the case.
The Council is in discussions with the developer and others to improve the situation. We do not yet know where those negotiations will lead, but once they have run their course, it would be possible for the complainant and others to come back to us if they remain unhappy with the outcome. We can then complete an investigation into the concerns I have outlined above and others that might arise. Once we decide allegations of fault, we can then determine what injustice was caused by it at a point where it is possible to evaluate that injustice.
Final decision
I ended my investigation, as the Council is working with the developer and others to improve matters relating to Mr X’s complaint.
We should allow negotiations to continue.
Investigator's decision on behalf of the Ombudsman