The Ombudsman's final decision
Summary: Ms X complains about the way the Council considered a planning application for development and a breach of a planning condition at a nearby agricultural business causing distress and 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 Ms X. She complains there were failings in the way the Council considered a planning application and a breach of a planning condition at a business near to her property. Ms X says the Council failed to visit her property when considering the application or assess the impact onto her. Ms X says the business use affects her health and causes distress and loss of amenity.
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 how the organisation made its decision, 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 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)
What I have and have not investigated I have investigated Ms X’s complaint about the planning application submitted for the business in 2021. Although this is over 12 months from the date Ms X was aware of the application, I have exercised discretion to investigate. This is because there are good reasons to do so as Ms X’s complaints to the Council included a possible statutory nuisance from the site and the Council’s investigation of the site only concluded in 2023.
How I considered this complaint
I considered information provided by Ms X and I discussed the complaint with her on the telephone. I read documents the Council provided in response to my enquiries. I also considered information available on the Council’s planning portal.
Ms 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.
The Council’s Local Enforcement Plan (LEP) The Council’s LEP sets out the Council’s approach to enforcement. It notes enforcement is discretionary and it should act proportionately in responding to suspected breaches of planning control. The breaches can include carrying out development without the required planning permission or failing to comply with a planning condition.
In summary the Council will consider the degree of harm the suspected breach causes. It will carry out informal negotiation such as requiring work to comply with the planning permission or the submission of a retrospective planning application. If informal negotiations are unsuccessful, it will consider whether to take formal action such as issuing an enforcement notice.
Key events leading to the complaint What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
Ms X lives near to an agricultural business. The owner of the business submitted a planning application in 2021 to erect a building to enable the business to increase. The Council carried out consultation about the proposal including with its Environmental Health service. Environment Health responded and said it had no comments to make about noise, contaminated land, air quality, odour, and light from the site. This was because of its assessment of the site and knowledge of previous planning applications for development.
The Council added the application to its publicly available weekly list of applications received and included it on its planning website. The Council posted a site notice about the application to advertise it at the entrance of the site next to a shared truck access used to service Ms X’s property. The Council did not receive any comments from Ms X while it considered the planning application.
A planning officer prepared a planning report on the application. This gave a description of the site, information about previously approved applications to erect buildings and the proposal to increase the site. The report outlined relevant planning policy and guidance. It considered the key issues for the site such as the material planning considerations including the principle of development and impact onto residential amenity.
In summary the planning report said the officer was satisfied from the information provided there was a genuine agricultural need for developing the site. The proposal would be of a typical agricultural design and consistent with other buildings on the site and there would be landscaping including hedging.
The report considered the impact onto residential amenity. In summary it noted Ms X’s property and distance from the site. The officer did not consider the proposed development would be sited so close to cause loss of light or an overbearing impact. And would be a sufficient distance from residential properties to prevent undue harm in terms of noise and odour. So, the officer did not consider it would not result in significant harm to residential amenity.
The planning officer considered the proposal acceptable in principle and met the Council’s relevant policies so recommended granting planning permission. The Council considered the application and granted planning permission subject to planning conditions. The planning conditions included one for landscaping the site with trees, shrubs, and hedgerows.
In January 2023 the Council received a complaint from a councillor for Ms X about a possible breach of planning condition about landscaping and ecology at the site. Ms X also raised concerns about the effects of the business use of the site onto her health and amenity caused by dust and odour.
The Council’s Planning Enforcement team responded to Ms X’s complaint. It confirmed the Environmental Health team were considering Ms X’s concerns about the impact onto her health and the dust and odour as a separate complaint. The planning enforcement team used a condition tracker on the site and said it showed the landscaping condition to plant hedges had not been discharged. So, there was a breach of planning control.
A Planning Enforcement officer contacted Ms X to arrange a site visit to view the boundary treatments of the business from her property in January 2023. The officer carried out the site visit. Ms X raised further concerns about the neighbour’s business affecting their health. Ms X said she had no protection from dust and debris from the site due to the lack of hedging. If this had been planted Ms X considered it would have provided them with some protection.
The Council sent a letter to the business owner in April 2023 requesting they submit a planning application to discharge the conditions. The Council noted there were similar breaches of planning conditions for previous applications. The owner confirmed they would be submitting an application. The Council told Ms X it was dealing with the breach of condition at the site.
The Council has continued to contact the owner to submit an application. But the application has not been made yet and the matter is ongoing.
The Council confirms it imposed the condition to enhance the character and appearance of the area. It was not to protect the amenities of neighbouring properties from any adverse impact from noise, smells or dust from the site. So, at present the Council does not consider the breach to be so harmful in planning terms to warrant it pursuing formal enforcement action. It is still carrying out informal negotiations with the owner to remedy the breach by submitting an application to discharge the conditions. The Council says that unfortunately sometimes enforcement investigations can take time to resolve.
The Council says the recently approved agricultural building was further away from Ms X’s property than some previously approved buildings in the site. So due to this and as the planning officer was familiar with the site, they did not consider it necessary to make an assessment from Ms X’s property. Although the officer did carry out a site visit to the application site.
The case officer relied on the Environmental Health service to assess the cumulative impact an extra building would have on the site for noise, smell, and other environmental issues. The Environmental Health service confirmed they had no comments to make. The case officer did address the issue of residential amenity in the report and considered the impact onto Ms X’s property. But did not consider the proposed agricultural building would cause significant harm to residential amenity.
My assessment
Planning permission may be granted subject to conditions relating to the development and use of land. The Ombudsman does not act as an appeal body for planning decisions. Instead, we consider if there was any fault with how the decision was made.
In this case, the evidence provided shows the Council advertised the planning application so residents including Ms X could comment on the application. A planning officer then visited the site and prepared a planning report on the proposal. The report considered the principal issues. These included relevant planning policies, the application plans, consultation responses, and other material planning considerations, including the impact on neighbouring amenity, before the Council made its decision.
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.
The documents show the Council responded to Ms X’s concerns about a possible breach of planning conditions. It has investigated the matter and visited Ms X and the site. The Council confirms it is currently in negotiations with the owner to submit a planning application to discharge the outstanding conditions and the investigation is still ongoing. While I appreciate that this is disappointing to Ms X the Council’s actions are according to its enforcement policy. As its enforcement powers are discretionary, it will be for the Council to decide whether to pursue the breach of conditions any further.
Final decision
I have completed my investigation. I have found no evidence of fault by the Council in the way it considered a planning application for an agricultural building near to Ms X’s property. There is also no evidence of fault in the way the Council considered a possible breach of conditions at the business site.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman