The ombudsman, Patricia Thomas, ruled against the council on the grounds of maladministration causing injustice after she investigated four complaints made against it about the planning of the nursery.
The complainants, who all live near the setting, which had been two residential homes until 2001 when the council granted planning permission for a nursery, said the application had been 'wrongly decided'. They also alleged that the planning officer had been biased in favour of the applicant and that he had taken steps to ensure the application could be decided by him under delegated powers.
The four complainants, whose real names cannot be used for legal reasons, are Mr and Mrs Alison, who live next door to the new nursery and have another nursery on the other side of their house; Mr Collins, who lives on the other side of the new nursery; Mrs Beatty, owner of the established nursery who lives on the premises with her husband; and Mr Durand, who lives close by. The Alisons and Mr Collins said they suffered from noise from the children at the new nursery, and all complainants said they were being 'adversely affected by danger from traffic at pick-up times, and the noise from this activity'.
In May 2001 the applicant, who was then the potential purchaser of two adjoining residential properties, applied to change their use to a day nursery. Even though the complainants and the town council sent letters of objection, a planning officer recommended that the application be approved.
The ombudsman's investigation concluded that the council's failure to determine the planning application at committee instead of under delegated powers was maladministration. Howard Norris, chief monitoring officer for Warrington Borough Council, said, 'The ombudsman's report finds maladministration because of certain technical failings on this occasion in the operation of the council's procedures.' He added that the council would 'amend' processes shown to be flawed.
The council agreed to apologise and to pay 200 to each of the complainants to compensate for their anxiety, but there were concerns about the nursery's observing its voluntary agreement to limit outside play hours.
Rosemary Murphy, chief executive of the National Day Nurseries Association (NDNA) said, 'While we would not wish to comment in detail, it seems that the key issue here is one of the process that took place, as the ombudsman saw no evidence to suggest that planning permission would not have been granted. Planning is always problematic for nurseries, not least because the rules vary so widely from area to area.'
But as Rob Stay, an assistant director of the Local Government Ombudsman, pointed out, 'Planning does not take account of competition. If, for example, Burger King applied to open on the same street of a McDonald's and McDonald's complained that this would be commercially bad, the complaint would get short shrift from the planning authority.
'The same would apply regarding nurseries as I don't think the grounds that a new nursery would hurt the other one on commercial grounds is relevant.
However, issues such as traffic are relevant grounds for complaint.
'Competition is not an issue unless it's something as big as the opening of a superstore.'
