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 1
April
2008
Jerry
White
Local Government Ombudsman
Neville Jones
Deputy Ombudsman
Our ref.
06/B/02324/BM
Please quote our reference when contacting us and
if using email,
please put the reference number in the email subject header.
If telephoning contact: Brian Miles on 024 7682 0034
or if using email send to: b.miles@lgo.org.uk
Dear Mr Edmunds
Complaint against Portsmouth City Council
Thank you for your letter of 13 March 2008. Neville Jones, Deputy Ombudsman
will be
writing to you about the procedural points you have raised and the questions
in your attached 'Annex B: Freedom of
Information requests'. This letter is in reply to the
comments in your 'Annex A' on my provisional conclusions as set out in
my letter of 16 January 2008.
You further question the way the Council has considered the planning
applications for
the land at 10
West Street and its assessments of the acceptability of the proposed
development and its impact on your property and those of your
co-complainants.
You believe that the development as built has caused a significant loss of
daylight and sunlight and resulted in an overbearing and out of keeping
building similar in height and size to that rejected by the Planning
Inspectorate in 1994.
I recognise that
you continue to disagree with the Council's planning decisions. But I do not
consider that there is a basis on which I should investigate your complaint
further. I see no reason to question the
Council's earlier decisions relating to the site that I examined
previously. My decisions of 25 March 1999, 29 May 2003, 8 December
2003 and 26 August 2004 must stand.
Neither have I
found evidence that leads me to challenge the way the Council
considered the revised proposals for the
site in 2005 or the conclusion of its Committee that the amended
plans, with the re-design of the exterior of the new building and reduction
in its height, had addressed the defects identified in the 2004 refusal.
In reaching these conclusions, I have carefully considered your written and
oral submissions, the Council's written comments and the information
obtained from
inspection of the authority's file records and interviews with officers and
Members. I
have also noted the photographs you have enclosed of the development as now
built.
My comments on your individual points are as follows: Your general
comments
It would be for the Courts to rule on the lawfulness of the Council's
decisions and
whether they have breached the Human Rights Act. But, in my view, the
absence of
any specific reference to the Human Rights Act in the officers' report at
the time of the
Council's decision to approve the planning application in 2005 has not
undermined the
Council's consideration of the impact on your amenity of the approved
development.
I have noted your reference to the remarks of the Council's link officer
after Mr Miles asked if she could provide photographs of the development as
built. Mr Miles made his
request through the link officer in accordance with the Commission's
procedures for the
conduct of investigations. It was coincidence that, as the officer had
recently attended
our annual seminar on complaints handling, she expressed her appreciation at
the
content of the seminar. I have accepted the Council's position that it was
unable to
supply the photographs requested because to take photographs of the rear of
the site, in addition to views from the street, meant the need to obtain the
permission of private
owners.
Your comments on my letter of 16 January 2008 - using your paragraph
numbering
Paragraph
9-7 have carefully considered...' My provisional conclusions took
into
account the information available on the relevant events as set in the Draft
Key Facts.
Paragraph 11 - 'Having reviewed...':
The Council's assessment and that of your
consultant that BRE guidance on minimum winter sunlight levels could not be
met by
the 2005 and earlier schemes was only one of a number of factors that it
took into account when considering the acceptability of the development. I
see no reason to
question the Council's conclusion that this issue in itself did not give
grounds for refusal of the scheme in 2005, as now built.
Paragraph 12 -
7 have not found evidence...' The 2004 application was recommended
for approval by officers. That the Committee chose not to accept the
officers'
recommendation was a matter for its judgement. But Members refused
permission for the 2004 application on grounds related to the scale and
appearance of the development and its impact on neighbouring properties, as
well as loss of light.
Paragraph 13 - 'Councillors had sufficient...'
The written information provided by the
planning case officer to the Committee in 2005 was a matter for his
professional
judgment as the presenting officer. I have seen no reason to question the
sufficiency of the officer report on the planning application in 2005 for
the site. At interview,
members of the Committee stated that they had been satisfied with the
accuracy and
completeness of the information given by officers about the development and
they had
a full opportunity to raise questions where necessary.
Paragraphs
14-17
'The officer's report...', 'The report noted...', 'The report
concluded...',
'The report further...'
My conclusions
here were set out in the preceding
paragraph where I stated that: 'Councillors had sufficient information
before them about the application (the 2005 scheme), the setting of
the site and the likely effect of the development to enable them to reach
their decision to grant conditional planning
consent in a proper manner.'
I acknowledge
that you continue to disagree with the Council's assessment of the
impact of the development on your
sunlight and daylight. But I have found no evidence that the Council
failed properly to consider this issue within the framework of the BRE
guidance. The guidance was one of a
number of material planning considerations for the authority when it
considered the acceptability of the development. The BRE guidelines have the
status of guidance and are not mandatory. The Council took account of
the guidelines, in reaching its decision that the 2005 scheme would not
result in a wholly unacceptable loss of daylight or sunlight to neighbouring
properties.
Paragraph 18- 'Councillors considered...'
The scaffolding erected for the Members'
site visit was
intended to give an impression of the height and overall scale of the
development. But it was not meant or seen as a complete, life size
representation of the new building. The
scaffolding was one of a number of factors considered by
Members during their site visit. They
acted appropriately by visiting your property and that of one of your
co-complainants as well as viewing the application site.
Paragraph 19-'I have found no evidence...'
I see no reason to question as
fundamentally
flawed the consideration given by the Council in 2005 to the height of the
proposed building and its relationship to adjoining properties. You raised
this issue in your objection of 5 April
2005, when you said that two-thirds of the building would be
four storeys. The original application
described a part two storey/part three storey building with a
basement But the presenting officer confirmed to the Committee that the
height of the development was part three/part four storey. Members reached
their decision to grant planning
permission on this understanding.
I have no reason
to challenge the Council's view that the 2005 scheme as revised overcame the
concerns raised by Members in 2004 in their refusal of the previous
proposals and had addressed the appeal
Inspector's findings in 1994 that had centred on the mass of the
development then proposed and the extent of the site that would
have been covered by a new building.
Paragraphs 20/21 -
7 have carefully considered...', 7 have noted your view...'
The
information that is available shows that the Council's officers carefully
considered the impact of the development
on the sunlight and daylight of neighbouring properties. It
was a matter for their professional and
technical judgment as to what they considered a
worst-case scenario. But their
assessments recognised the already limited separation distance
between buildings and that the development would reduce the sunlight and
daylight available to existing occupiers.
I see no reason to challenge their conclusion, supported by the
Committee in 2005, that the reduction in sunlight and daylight that had been
identified did not give grounds for withholding consent for the revised
scheme.
The regard given
by the Council to your consultant's report of 2004 when it determined
the 2005 application was a matter for the authority's discretion. But its
record is that your consultant's
assessment, which had a different methodology to that used by the BRE
and so made a like-for-like comparison difficult, was drawn to the attention
of the Committee when it considered the
2004 application. Officers were mindful of the consultant's findings
and your re-stated views about the impact of the development on
your daylight and sunlight when they considered the 2005 application and
your reiterated objection.
Paragraphs 23/24 - 'For the reasons...'
I have not found evidence of fault by the
Council that leads me to pursue your complaint further. I acknowledge that
you
consider that the development you have objected to has fundamentally
affected your
light and outlook at the rear of your property. But I have not seen grounds
on which I
should conclude
that the Council's decision to grant planning permission in 2005 for the
scheme as now built was incorrectly
reached; or that it should be challenged as wholly unreasonable given the
factors that officers and Members took into account.
If you have any
evidence that the Council's officers may have acted corruptly, you
should contact the Police as this would be a criminal matter.
For the reasons
given in this letter and my previous letter, I have now discontinued the
investigation and closed your complaint. I have copied my letter to the
Council's Chief Executive.
I will return your papers under separate cover. Our policy is normally to
destroy files 14
months after we
have decided the complaint.
Yours sincerly
J R White
Local Government Ombudsman
The Oaks No 2 Westwood Way
Westwood Business Park Coventry CV4 8JB
Tel 024 7682 0000 Fax 024 7682 0001
DX 702110
Coventry 6
www.lgo.org.uk
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