The Ombudsman's final decision
Summary: We will not investigate this complaint about the decision to approve a retrospective planning application and enforcement of an approved planting scheme. We are unlikely to find fault in the Council’s actions, nor can we achieve the outcome the complainant is seeking.
The complaint
The complainant, I shall call Mrs X, complains about the Council’s decision to approve a retrospective planning application to keep flues on a residential care home next to her property. She also says the Council has not taken action on the removal of boundary hedges and a tree and a failure to ensure the approved landscaping is put in place to provide screening.
Mrs X wants: the flues replaced with smaller ones, or encased in brick to make them less obtrusive; and the correct planting/screening takes place
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: there is not enough evidence of fault to justify investigating we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered: information provided by Mrs X, including the Council’s responses to her complaint; information about the planning applications available on the Council’s website; and the Ombudsman’s Assessment Code.
My assessment
The Council granted planning permission to demolish two houses and build a residential care home.
Following a report of a breach of planning control, the Council inspected the site. It asked the developer to put in a retrospective planning application for three boiler flues which had been installed in the building.
The planning application was publicised, and the public given the opportunity to comment on the proposal. The Council’s planning records show it received four representations from Mrs X’s address with details of objections to the scheme.
The Planning Officer prepared a report on the scheme. The report summarises the objections received which include (but are not limited to): The flues are visible from the street and are damaging to the character of the area The drawings are misleading when compared to how the flues appear on the building The flues are an inappropriate size and scale The flues cause harmful impact on the visual amenity of neighbours It is unsure what the boiler flues will release into the atmosphere; and The flues are unauthorised The report details the Planning Officers professional opinion on the boiler flues. It says: “In respect of the consideration of the impact of the amendments on design and local character, notwithstanding comments received during the public consultation of this application and further to site visit, it is considered that the flues albeit of industrial aesthetic would not be significantly detrimental to the overall pleasing character of the immediate area or the development itself due to their set back locations from the street scene and neighbouring properties due to the limited public views to them afforded from the PROW to the north and street scene from XXXX Road from the south east. In respect of residential amenity and pollution control matters, the application has been reviewed by the Environmental Health officer who raises no objections to the development.”
When planning authorities receive planning applications, they must consider relevant planning matters in reaching a decision. These may be obvious or be raised by members of the public who comment on the applications. The Town and Country Planning Act 1990 specifies a range of relevant planning matters. Among these are the possible effects on the amenity of neighbours. This can be about size, scale, light pollution, odour, loss of privacy and others. The planning authority must consider all those relevant, but it has discretion about what weight to give to them. The Ombudsman’s role is only to consider whether the planning authority acted correctly by considering relevant planning matters, not to reach his own view of them where there is no fault In this case the Council responded to a report of a breach of planning control. An Officer visited the site. Mrs X believes the Council should have visited her home to view the boilers flues from her property. However, it is not obliged to do so.
It is clear from the Planning Officer’s report the Council considered the relevant information including: the planning history of the site the objections received responses from statutory consultees the relevant planning policies; and the Planning Officer’s professional opinion on the development I will not investigate this part of Mrs X’s complaint. It is the role of the Council as the Local Planning Authority (LPA) to reach a judgement about whether a development is acceptable after: consideration of local and national planning policies comments from statutory consultees; and objections/representations from people affected by the decision.
The evidence strongly suggests that this is what has happened in this case and therefore the Ombudsman would be unlikely to find that there had been fault if he investigated.
Mrs X also complains about failure to adhere to approved planting scheme. Condition four of the approved application says: “Prior to the occupation of the care home, details of both soft and hard landscaping works shall be submitted to and approved in writing by the local planning authority. These details shall include: i) earthworks showing existing and proposed finished levels or contours; ii) external lighting; iii) an implementation programme. The landscaping works shall be carried out in accordance with the details required in this condition and the landscaping strategy document (rev G dated 13.11.19) and in accordance with the agreed implementation programme.”
In its response to Mrs X the Council says some of the tree and hedge planting has yet to be planted as at the time of writing, the planting season had only just begun. It confirmed it would make sure the work is to take place and when it will be done.
I will not investigate this part of Mrs X’s complaint. The Council has confirmed the condition on the planting scheme has been partially discharged. If the remaining planting does not take place before the end of this planting season, Mrs X can make a fresh report of a breach of planning control to the Council.
Final decision
We will not investigate Mrs X’s complaint because for the reasons stated above, we are unlikely to find fault in the Council’s actions. The boiler flues are now approved so we cannot require the Council to ensure their removal or alteration. And the Council has partially discharged the planning condition on the planting scheme and the planting season has not yet ended.
Investigator's decision on behalf of the Ombudsman