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Building control 1 case summary Enforcement 13 case summaries - 3 NEW Mar-Apr 2008 Forward planning no recent case summaries Planning advice 2 case summaries Planning applications 20 case summaries - 3 NEW Mar-Apr 2008 Trees 2 case summaries - 1 NEW March 2008 London Borough of Merton (05/B/9611, 06/B/981 & 983) Maladministration causing injustice Merton Council delayed acting when new properties were built too close to neighbours’ boundaries and not in accordance with approved plans. The Ombudsman said that the Council should take enforcement action as quickly as possible, pay compensation to the neighbours, and review its procedures. Two neighbours also suffered a statutory noise nuisance from a metal staircase that was built without planning consent. ‘Mr Alder’, ‘Mrs Birch’ and ‘Mr and Mrs Willow’ (not their real names) lived near a pub. There was a planning application for the conversion of the upper floor of the pub into flats, and for houses and flats to be built in the pub’s beer garden. The development was in a conservation area. The Ombudsman found that, when the complainants raised concerns that the construction was not in accordance with the plans, the Council’s response was contradictory - though it later recognised that the approved and built schemes differed significantly. The Council failed to investigate thoroughly and respond accurately to the complaints. During the construction a metal staircase, approved by Building Control, was installed on the wall adjacent to Mrs Birch’s property without planning consent. The staircase caused a statutory nuisance by way of noise and vibration, but there were delays in referring the matter to Environmental Health. When Environmental Health became involved, an abatement notice was served. The Ombudsman said “It seems to me that the Council did not have a clear strategy in this case, and it failed to act robustly for several months when no accurate revised plans were forthcoming.” When new planning applications were finally received, it refused permission for the properties as built. The application for the houses on the beer garden was also refused on appeal. The Ombudsman found that the Council’s delays meant that matters could have been resolved much sooner than will now be the case. He found maladministration causing injustice and recommended that the Council should:
12 June 2007 West Wiltshire District Council (06/B/538, 547, 549 & 1306) Maladministration causing injustice Complaints were made by The Preservation Trust and by a group formed in response to the development of the site, about the grant of planning permission for a terrace of houses of modern design in the conservation area. They believed that administrative errors in the handling of the application led to planning permission being granted for a development that they considered inappropriate. The Ombudsman found that the Council’s Area Committee was not informed of the conservation officer’s concerns about the proposed development. Councillors therefore made their decision on the basis of incomplete information. However, the Ombudsman could not say with certainty that the decision would have been any different had this been known. Also, the Council was slow to take enforcement action against the developer for breaching conditions attached to the planning permission. The Ombudsman found maladministration that caused the complainants injustice in their sense of outrage that councillors had granted planning permission without knowing the views of the conservation officer, and because they would never know whether the development might have been avoided. In accordance with the Ombudsman’s recommendations, the Council agreed to make a payment of £2,000 to the Preservation Trust to be used for a project of benefit to the conservation area. 10 May 2007 Carlisle City Council (05/C/13355) Maladministration causing injustice Carlisle City Council failed to take action over a developer’s failure to produce a landscaping scheme for a site. The Ombudsman said “There is no point in including a condition in a planning permission if the Council has no intention of enforcing it.” She also said that the complaint had “exposed some matters of more general public concern” about tree protection issues. ‘Mr J’ (real names are not used) lived on a large private housing development. He complained about a number of issues relating to the planning permission for the development, in particular that the Council failed to take effective action over the non-implementation of planning conditions, and that it failed to protect trees on the site. The Ombudsman upheld some of his allegations. She found the Council failed to enforce the landscaping conditions, but that the injustice that flowed from this was not as great as Mr J believed, commenting “The developers appear overall to have created a pleasant environment to the satisfaction of the vast majority of residents.” She found that protected trees were removed without clear indication in the Council’s files as to the reasons, and permission to fell diseased trees was not made conditional on replanting. In one case, permission was given to fell the wrong tree. The Ombudsman found maladministration causing injustice and, in accordance with her recommendations, the Council agreed to:
14 May 2007 London Borough of Hounslow (05/A/14008) Maladministration causing injustice Hounslow Council’s Heston and Cranford Area Planning Committee took irrelevant matters into account and failed to give weight to the Council’s own policies and planning guidance when it decided not to take enforcement action against unauthorised development, found the Ombudsman. He found fault in the way the decision was taken, and recommended that it be reconsidered by a different committee. He said “It appears that there is still a need for training about planning matters for the members of this committee,” as information about the decisions of the Heston and Cranford Area Planning Committee suggested that this was not a solitary lapse. ‘Mr Smith’ and ‘Mr Jones’ (not their real names) lived in a conservation area. They complained about the way that the Council decided not to take enforcement action against a neighbour who had built a rear garage and added features to his house without planning permission. The development has had a detrimental effect on Mr Smith’s and Mr Jones’ enjoyment of their own homes, and they consider that it has reduced the value of their properties. The Council investigated Mr Smith’s complaint and agreed that that the development breached the Council’s policies and guidance for building in conservation areas and was detrimental to the local street scene. They made a recommendation to the Heston and Cranford area planning committee that enforcement action should be taken to make the neighbour remove the garage and other unauthorised features. The area committee decided not to take action. In doing so, they took into account irrelevant matters and factually inaccurate information. They gave little weight to the Council’s policies and planning guidance. Some members of the committee had received no training in planning issues. One of the reasons given for their decision was factually inaccurate. Mr Smith and Mr Jones were disappointed with the Council’s failure to consider the matter properly and had to make great and prolonged efforts to have the decision reconsidered. A review of the Council’s records revealed that in recent years this area committee had refused a higher proportion of officers’ recommendations to take planning enforcement action than the Council’s other area planning committees, and that concerns about this committee’s planning decision making had been raised in a report to the Council’s Executive Committee by its Scrutiny Committee in 2003. The Ombudsman found maladministration causing injustice and recommended the Council to:
16 May 2007 South Somerset District Council (05/B/15862) Maladministration causing injustice The Ombudsman criticised South Somerset Council over its handling of a planning application for a manufacturing business and, later, delaying eight months in commencing enforcement action against unauthorised activity. The Ombudsman recommended the Council to pay £5,000 to a business rival for justifiable outrage and for having to take professional advice for longer than necessary. However, the Ombudsman did not agree that the complainant’s commercial losses were the Council’s fault: these were caused by the rival business, not the Council. ‘Mr Nelson’ (not his real name) complained that the Council had incorrectly sought to grant planning approval for the manufacturing operations of a business rival and that, when planning permission was later refused, it delayed in taking enforcement action against the unauthorised operations. The Ombudsman found that the Council’s initial decision to grant planning approval subject to a legal agreement was flawed because:
Later, when planning permission was refused, the Council took eight months too long to commence enforcement action. Mr Nelson was caused outrage by the Council’s error, in that he had to operate in an adverse business environment and paid for professional advice for longer than he should have done. One councillor (not named in the report) was a customer of the business rival, and had submitted a letter supporting the planning application although she did not attend the meeting where it was decided. The Ombudsman found this was a breach of the Code of Conduct and was therefore maladministration. However, this made no difference to the outcome of the application because similar views were expressed by another councillor. The Ombudsman finds maladministration causing injustice and recommends that the Council should:
22 May 2007 London Borough of Merton (05/B/9611, 06/B/981 & 983) Maladministration causing injustice Merton Council delayed acting when new properties were built too close to neighbours’ boundaries and not in accordance with approved plans. The Ombudsman said that the Council should take enforcement action as quickly as possible, pay compensation to the neighbours, and review its procedures. Two neighbours also suffered a statutory noise nuisance from a metal staircase that was built without planning consent. ‘Mr Alder’, ‘Mrs Birch’ and ‘Mr and Mrs Willow’ (not their real names) lived near a pub. There was a planning application for the conversion of the upper floor of the pub into flats, and for houses and flats to be built in the pub’s beer garden. The development was in a conservation area. The Ombudsman found that, when the complainants raised concerns that the construction was not in accordance with the plans, the Council’s response was contradictory - though it later recognised that the approved and built schemes differed significantly. The Council failed to investigate thoroughly and respond accurately to the complaints. During the construction a metal staircase, approved by Building Control, was installed on the wall adjacent to Mrs Birch’s property without planning consent. The staircase caused a statutory nuisance by way of noise and vibration, but there were delays in referring the matter to Environmental Health. When Environmental Health became involved, an abatement notice was served. The Ombudsman said “It seems to me that the Council did not have a clear strategy in this case, and it failed to act robustly for several months when no accurate revised plans were forthcoming.” When new planning applications were finally received, it refused permission for the properties as built. The application for the houses on the beer garden was also refused on appeal. The Ombudsman found that the Council’s delays meant that matters could have been resolved much sooner than will now be the case. He found maladministration causing injustice and recommended that the Council should:
12 June 2007 London Borough of Croydon (04/B/16079) Maladministration causing injustice Croydon Council incorrectly advised a woman’s neighbour that he did not need planning permission for works that included excavating beneath her driveway and garage and a party wall. The Ombudsman found that the Council’s failure meant that the woman had to take legal action herself to protect her interests, incurring unnecessary expense, she suffered anxiety and distress, and the Council’s enforcement action was delayed by two years. In 2001 a neighbour of Ms Bailey (not her real name) commenced building work at the front of the adjoining property. This included the construction of a wall and a new flight of steps and the undercutting and excavation of the foundations of the driveway and garage of Ms Bailey’s property, including a party wall. When the work was reported to the Council, it failed to record accurately details of the site and the works carried out. This failure to ascertain adequate facts in 2001 meant that it incorrectly advised the neighbour that the work did not require planning permission at that time. In April 2003 Ms Bailey took her own legal proceedings under the Party Wall etc Act 1996. She would not have considered it necessary to do this if the Council had dealt promptly and appropriately with the development affecting her home. Two years elapsed between the Council’s earlier advice that no permission was needed and its subsequent correct advice that eventually resulted in the submission of a planning application, which the Council refused. The Council accepted that there was a delay in concluding that a breach of planning control had occurred. The Ombudsman found that the Council’s failure meant that at least some of Ms Bailey’s legal costs could have been avoided. In addition, Ms Bailey suffered avoidable distress and anxiety from believing that the Council could not assist her, and its enforcement action was delayed by two years. The Ombudsman found maladministration causing injustice and recommended the Council to pay £2,000 to Ms Bailey, plus £4,268 which represented a 50% contribution to her legal and professional costs. 13 June 2007 London Borough of Ealing (07/A/6930) Maladministration causing injustice Ealing Council’s error allowed a roof extension to be built that was larger than should have been permitted. The Ombudsman found that the Council wrongly issued a lawful development certificate for the extension, having failed to recognise that it was too large. The Ombudsman said the extension was “particularly imposing” when viewed from the neighbour’s home, and recommended the Council to pay compensation to the neighbour. ‘Mrs Harding’ (not her real name) complained about the Council’s decision to grant a lawful development certificate for her neighbour’s roof extension, which was too large to be considered as permitted development. The Ombudsman found that the Council was wrong to issue a lawful development certificate for an extension that exceeded the levels allowed under permitted development. It should have recognised the fact that planning permission was needed for the proposed extension. As this was unlikely to have been granted, Mrs Harding will have to live next door to an extension which is significantly larger than would have been the case if the Council had dealt with the matter properly. In order to remedy the injustice caused to Mrs Harding the Council should:
6 December 2007 Restormel Borough Council (06/B/11183) Maladministration causing injustice Restormel Borough Council’s approval of a lawful development certificate for an industrial business in a rural area was “fundamentally flawed”. The Ombudsman said also that the Council acted against its own legal advice, was not even-handed in dealing with information provided by the different parties, and took too long to make its decision. He recommended the Council to pay £24,000 compensation to residents, and to commission an independent reassessment of the present position at the site and consider any recommendations arising for the further protection of the area amenity. The Ombudsman said “…the process by which the LDC [lawful development certificate] was considered was fundamentally flawed. Had the matter been dealt with correctly, I believe the application should have been refused on the evidence.” ‘Ms Archer’ (not her real name) complained on behalf of a small group of residents of a rural hamlet about the way the Council dealt with activities at a nearby business that did not have planning permission. She said that the Council failed to take enforcement action against the business and issued a LDC contrary to its own legal advice. She said that, as a result, the residents suffered unacceptable noise and disruption, and that important wildlife habitats were destroyed. The site owner submitted an application for a LDC in November 2003, but it was not determined until 2006. Despite strong legal advice to the contrary, the Council decided to appoint a members’ subgroup to evaluate the evidence. But they met erratically, were not rigorous in evaluating the historic evidence, and were swayed by their views about the current planning merits of the site. The residents, through their professional adviser, sought to submit evidence to challenge that provided by the site owner. The Council was not even-handed in dealing with the information provided, and the Members’ panel eventually recommended approval of the application, contrary to the legal advice received. The delayed and unsound decision-making process caused injustice to the residents. A LDC has been issued when the application should have been refused and the matter considered as a planning application on its merits. The long delay in reaching a decision also meant that investigation of other unapproved activities was slow and half-hearted while the planning status of the land was undetermined. The residents have suffered considerable cost and uncertainty over a four-year period, and some permanent loss of amenity that cannot now be defined. The Ombudsman found maladministration causing injustice and recommended the Council to:
9 January 2008 Plymouth City Council (06/B/15306) Maladministration causing injustice Plymouth City Council delayed in taking enforcement action over non-compliance with planning conditions at industrial premises. The Ombudsman said that, in view of the number of residents’ complaints about noise and odour nuisance, “I consider that the Council should have acted much sooner to secure implementation of an adequate environmental protection scheme”. The Ombudsman recommended the Council to pay £5,000 compensation to the complainant and review its planning enforcement arrangements. ‘Mr Moore’ (not his real name) complained that the Council did not consult him or his neighbours about a planning application for industrial premises near his home and failed to ensure compliance with the planning permission issued in 2001. The Ombudsman found that the Council correctly applied its neighbour notification policy, but failed to monitor whether the company operating on the site was complying with planning conditions. Mr Moore and his neighbours made several complaints about noise and fumes from the company’s operations, and the Council’s failure to ensure prompt compliance with planning conditions resulted in delay in securing an acceptable environmental protection scheme. The Ombudsman found maladministration causing injustice and recommended that the Council:
21 January 2008 Bath & North East Somerset Council (05/B/15565) Maladministration causing injustice Bath and North East Somerset Council was criticised by the Ombudsman over planning matters at a green belt site next to an Area of Outstanding Natural Beauty and close to a World Heritage site. The Ombudsman found fault in the Council’s investigation of nuisances caused by the site and in its unnecessarily protracted attempts to resolve other planning issues. But the Ombudsman did not criticise the Council’s decision not to take enforcement action against the use of the site for waste recycling, which a local Conservation Group considered was unauthorised. The Group complained that the Council failed to take prompt and appropriate action to end the unauthorised activity. When the Group submitted legal opinion challenging the Council’s view that the site had the benefit of an established ‘B2 (General Industrial)’ fallback position, the Council reviewed its legal advice but remained of the view that it should not take enforcement action. “That was a decision the Council was entitled to reach, and I see no grounds to criticise it,” said the Ombudsman. Although the Ombudsman did not criticise the Council’s decision that planning enforcement action was not expedient, he did find that the Council’s efforts to resolve other planning control issues at the site were unnecessarily protracted. He also identified fault in the Council’s investigation of other nuisances caused by the site, complained about by the Group. He concluded that, in view of the Conservation Group’s interest in protecting the World Heritage site, it was caused both avoidable frustration and outrage by the Council’s administrative errors. The Ombudsman found maladministration causing injustice and recommended the Council to:
30 January 2008 Bath & North East Somerset Council (05/B/8418) NEW Maladministration causing injustice Bath & North East Somerset Council overlooked the existence of an agreement that a site had the benefit of an established industrial use fallback position, and incorrectly threatened to take enforcement action against the owner. The Ombudsman said the error led the Council unfairly to withhold business from Mr Scott in the mistaken belief that his site might be subject of planning enforcement action. ‘Mr Scott’ (not his real name) owned and operated an industrial site. For a number of years there was uncertainty about planning approval for operations and development at the site. Mr Scott complained that the Council unreasonably threatened to take planning enforcement action against him; that it embargoed the use of his waste recycling facility; and that it incorrectly approved changes to the Local Plan that did not accurately reflect the approved use of his site. The Ombudsman found that the Council had overlooked the earlier agreement, and had unfairly withheld business from Mr Scott as a result. He also found errors in the Council’s process for approving pre-inquiry changes to the Local Plan. The result of those errors caused Mr Scott avoidable uncertainty, stress, anxiety and legal costs. The Ombudsman found maladministration causing injustice and recommended the Council to:
27 March 2008 Castle Morpeth Borough Council (05/C/17283) NEW Maladministration causing injustice Castle Morpeth Borough Council unreasonably started enforcement action against a couple who had constructed a self-built ‘timber/log kit’ home. The Ombudsman found no evidence that the Council ever made a properly-considered decision that the conditions that it was seeking to enforce were actually required. It also failed to monitor conditions on the site, and was therefore unable to show that it had treated each purchaser equitably. A couple (called ‘Mr and Mrs C’ in the report) bought a building plot as part of a project sponsored by the Council to promote timber/log self-build homes with high standards of environmental sustainability. The Council unreasonably refused to allow them to use materials and methods that would have achieved all the required sustainability standards. The Council said that it refused because what the Cs wanted to build did not meet its specification of a timber/log house. There is no evidence that the Council ever considered or approved a definition or specification for what it meant by a timber/log home. It took no steps to ensure that all the properties were built to the sustainability standards that it had set. The Ombudsman said “Its reliance on what it calls the ‘specification’ does not stand up to scrutiny. Its replies to me show that it has been prepared to accept a property built from a kit supplied by [a particular company] but which can not reasonably be described as a ‘timber log kit home’. The Council seems to be incapable of distinguishing its sustainability specification from the identity of the supplier.” The Ombudsman found maladministration causing injustice and recommended that the Council should:
14 April 2008 Caradon District Council (06/B/16609) NEW Maladministration causing injustice Caradon District Council failed to notify a man of his neighbour’s planning application that would regularise breaches of planning consent at a converted barn. The Ombudsman found that the Council also delayed in deciding the application, and did insufficient monitoring of an alleged breach of planning consent at site. ‘Mr Lee’ (not his real name) owned a former farm in a rural area and had almost completed building a new dwelling to replace the old farmhouse. He had sold part of the land including an old barn, and his new neighbour obtained permission to convert the barn into a dwelling. After this was built, a visiting councillor noted that there were breaches of the planning consent, and the Council made a number of attempts to get the owner to make changes to comply with the consent, without issuing formal enforcement notices. Eventually, he submitted a retrospective application to formalise the remaining breaches. The Ombudsman found that the Council had failed to notify Mr Lee of the planning application although his property adjoins the site. He also found that the Council had failed to determine the application within the permitted time limit without valid reasons, and it had failed to inform Mr Lee or his MP of the progress of the application. Although Mr Lee also complained about the Council’s handling of enforcement issues, the Ombudsman criticised only one aspect – that the Council failed to carry out sufficient monitoring between August and November 2006 when Mr Lee believed that commercial paint spraying was being carried out at the site. The Ombudsman found maladministration causing injustice and recommended the Council to:
15 April 2008 no recent case summaries London Borough of Croydon (04/B/16079) Maladministration causing injustice Croydon Council incorrectly advised a woman’s neighbour that he did not need planning permission for works that included excavating beneath her driveway and garage and a party wall. The Ombudsman found that the Council’s failure meant that the woman had to take legal action herself to protect her interests, incurring unnecessary expense, she suffered anxiety and distress, and the Council’s enforcement action was delayed by two years. In 2001 a neighbour of Ms Bailey (not her real name) commenced building work at the front of the adjoining property. This included the construction of a wall and a new flight of steps and the undercutting and excavation of the foundations of the driveway and garage of Ms Bailey’s property, including a party wall. When the work was reported to the Council, it failed to record accurately details of the site and the works carried out. This failure to ascertain adequate facts in 2001 meant that it incorrectly advised the neighbour that the work did not require planning permission at that time. In April 2003 Ms Bailey took her own legal proceedings under the Party Wall etc Act 1996. She would not have considered it necessary to do this if the Council had dealt promptly and appropriately with the development affecting her home. Two years elapsed between the Council’s earlier advice that no permission was needed and its subsequent correct advice that eventually resulted in the submission of a planning application, which the Council refused. The Council accepted that there was a delay in concluding that a breach of planning control had occurred. The Ombudsman found that the Council’s failure meant that at least some of Ms Bailey’s legal costs could have been avoided. In addition, Ms Bailey suffered avoidable distress and anxiety from believing that the Council could not assist her, and its enforcement action was delayed by two years. The Ombudsman found maladministration causing injustice and recommended the Council to pay £2,000 to Ms Bailey, plus £4,268 which represented a 50% contribution to her legal and professional costs. 13 June 2007 Lancaster City Council (05/B/13863 & 05/C/16360) Maladministration causing injustice ‘Mr and Mrs King’ and ‘Mrs Duke’ (not their real names) owned properties in a terrace in the Council area that had been targeted for regeneration. During 2002 the Council had secured funding under a Government initiative, the Home Zone Challenge Fund. One of the options was the demolition of the terrace to make way for parking, which was agreed in March 2003. The Council had invited the property owners to sell their houses, which they were reluctant to do, but felt obliged to do so voluntarily, as they said that they had been told they would risk getting a lower price for their homes if the properties had to be compulsorily purchased. Later in the year, when it became clear that the redevelopment budget would not cover all costs, the boundaries of the Home Zone were reduced, so this particular terrace was no longer included for works. The properties were sold to a housing association for renovation, at a higher price than the Council paid for them. The two households complained that the Council misled them when it purchased their properties. At the time, Mr and Mrs King’s daughter and her family lived in one house and their disabled son in the other. Mrs Duke’s property was let out. They said that they were led to believe that the properties were to be demolished, but alleged that the Council was negotiating to sell them on for considerably more money. They said that, if they had been aware that the houses were not going to be demolished, they would not have sold them to the Council. When they tried to buy similar properties in the areas, prices were far in excess of what the Council offered. The Ombudsman found that the Council had failed to keep any written records of its discussions with the complainants and had not confirmed anything in writing. It did not fully explain to them that they could get an independent valuation of their properties and failed to advise them about the implications of buying their houses under a compulsory purchase order. He also found that the Council did not take the principles of the Crichel Down Rules into account when it sold the properties. When circumstances change after property has been purchased for a public purpose, the public body must act fairly to the person affected by the original purchase. The Ombudsman did not share the complainants’ view that the Council had set out to mislead them. “Had the complainants been properly advised of their rights at the outset as they should have been, I believe there is a strong likelihood that they would not have sold when they did, or indeed at all,” said the Ombudsman. The Ombudsman found maladministration causing injustice and recommended the Council to:
10 October 2007 West Wiltshire District Council (06/B/538, 547, 549 & 1306) Maladministration causing injustice Complaints were made by The Preservation Trust and by a group formed in response to the development of the site, about the grant of planning permission for a terrace of houses of modern design in the conservation area. They believed that administrative errors in the handling of the application led to planning permission being granted for a development that they considered inappropriate. The Ombudsman found that the Council’s Area Committee was not informed of the conservation officer’s concerns about the proposed development. Councillors therefore made their decision on the basis of incomplete information. However, the Ombudsman could not say with certainty that the decision would have been any different had this been known. Also, the Council was slow to take enforcement action against the developer for breaching conditions attached to the planning permission. The Ombudsman found maladministration that caused the complainants injustice in their sense of outrage that councillors had granted planning permission without knowing the views of the conservation officer, and because they would never know whether the development might have been avoided. In accordance with the Ombudsman’s recommendations, the Council agreed to make a payment of £2,000 to the Preservation Trust to be used for a project of benefit to the conservation area. 10 May 2007 Canterbury City Council (06/A/5098) Maladministration causing injustice Canterbury City Council was criticised by the Ombudsman for not preparing reports on decisions to grant planning permission where this was done under delegated powers. He said that it was not sufficient to approve an application without keeping any record of what matters were taken into consideration. In this case, the complainant could not be certain that the effect of the new development on his amenity had been properly taken into account. The Council failed to notify ‘Mr Johnson’ (not his real name) of a planning application for a two-storey extension to a property to the rear of his own. Mr Johnson believed the Council failed to take account of the impact of the development on his home when granting it permission. The Ombudsman considered there was fault in the way the Council dealt with the application. He was particularly concerned that the Council had not, until that time, prepared reports on planning applications that were decided under delegated powers. The Ombudsman did not, however, consider that the outcome of the planning application would have been any different had Mr Johnson been given the opportunity to comment on it. But Mr Johnson suffered an injustice in that he was denied the opportunity of making his views known and of having the certainty that these had been properly considered. The Ombudsman found maladministration causing injustice and recommended that the Council pays Mr Johnson £500 in compensation for its failures and to recognise his time and trouble in pursuing his complaint. The Council should also provide the Ombudsman with a copy of its pro‑forma for use when planning applications are decided under delegated powers, once finalised. 16 May 2007 Bradford City Council (06/C/2472) Maladministration causing injustice Extensive flaws were found in the way Bradford Council granted planning permission for a home extension. The Ombudsman criticised failures to follow proper procedures, to notify neighbours, and to keep proper records. But she did not find that the outcome to the planning application would have been different, had things been done properly. The Council granted planning permissions for two home extensions: first to the complainants, ‘Mr and Mrs Harris’ (not their real names), and then some months later to their neighbours. Both permissions were subject to conditions requiring obscure glazing in overlooking windows. The neighbours asked for the obscure glazing condition to be lifted from their permission. The Council attempted to do this by making a minor amendment to the decision notice that they had issued, and did not consult Mr and Mrs Harris who had asked for the condition to be imposed. There is no power for a council to amend a decision notice. The Ombudsman found a number of faults by the Council, including:
However, the Ombudsman did not find that Mr and Mrs Harris’ amenity had been prejudiced by the Council’s maladministration, recommending the Council to pay them £600 compensation for their distress, time and trouble. 17 May 2007 South Somerset District Council (05/B/15862) Maladministration causing injustice The Ombudsman criticised South Somerset Council over its handling of a planning application for a manufacturing business and, later, delaying eight months in commencing enforcement action against unauthorised activity. The Ombudsman recommended the Council to pay £5,000 to a business rival for justifiable outrage and for having to take professional advice for longer than necessary. However, the Ombudsman did not agree that the complainant’s commercial losses were the Council’s fault: these were caused by the rival business, not the Council. ‘Mr Nelson’ (not his real name) complained that the Council had incorrectly sought to grant planning approval for the manufacturing operations of a business rival and that, when planning permission was later refused, it delayed in taking enforcement action against the unauthorised operations. The Ombudsman found that the Council’s initial decision to grant planning approval subject to a legal agreement was flawed because:
Later, when planning permission was refused, the Council took eight months too long to commence enforcement action. Mr Nelson was caused outrage by the Council’s error, in that he had to operate in an adverse business environment and paid for professional advice for longer than he should have done. One councillor (not named in the report) was a customer of the business rival, and had submitted a letter supporting the planning application although she did not attend the meeting where it was decided. The Ombudsman found this was a breach of the Code of Conduct and was therefore maladministration. However, this made no difference to the outcome of the application because similar views were expressed by another councillor. The Ombudsman finds maladministration causing injustice and recommends that the Council should:
22 May 2007 Cambridge City Council (06/B/7907) Maladministration causing injustice Cambridge City Council failed to “ensure an even-handed and consistent approach” when granting permission for two extensions in the same road. The Ombudsman criticised the Council’s handling of the applications, and recommended it to pay £1,000 compensation to the complainant. However, he could not say that permission for the extensions would not have been granted in any case. ‘Ms Firkins’ (not her real name) lived in a semidetached Victorian house. She complained that the Council, in approving two similar planning applications for extensions to the neighbouring semidetached properties, failed to take adequate account of the adverse impact on her property and failed to adopt an even-handed approach. Ms Firkins said that the nearer extension severely affected her amenity as it doubled the length of the house and was very close to the boundary. She looked out onto a brick wall and felt very enclosed. She also said that her first floor bedroom window was overlooked by the new ground floor dining room window and she needed to erect a fence to screen the extension. The Ombudsman found fault in that the Council:
These failures caused Ms Firkins injustice as she was left with a perception of unfairness in the decision–making process and the feeling that, once the decision had been made on the first, the second was a foregone conclusion. This was exacerbated by the failure to provide proper reasons for the decisions. However, the Ombudsman could not say that permission for the extensions would not have been granted even without these failures. The Ombudsman found maladministration causing injustice and recommended that the Council pay Ms Firkins £1,000 compensation. 21 June 2007 King’s Lynn & West Norfolk Borough Council (06/B/6809) Maladministration causing injustice King’s Lynn and West Norfolk Council approved a planning application for new village homes on land designated as ‘greenfield’, and decided to redesignate the site as ‘brownfield’, contrary to Government definition and its own policies. In his report the Ombudsman criticised the Council’s decision making, although, had the matter been dealt with properly, a smaller housing scheme might still have been approved on the site. The Council accepted his criticism and agreed to follow his recommendations to improve its procedures, apologise and pay compensation to the complainants, who lived next to the application site. ‘Mr and Mrs Able’ (not their real names) moved to a village house next to a plot of greenfield land that had recently been used for agriculture. The Council approved a planning application for six houses on this site, and members decided that they could redesignate it as brownfield land, thus bringing the disused stockyard area into residential use. This was contrary to the Government’s definition of brownfield land, to the Council’s own adopted policies, and to the recommendation of the planning officers who had assessed the site. However, it was possible that, had members considered the matter properly, consent might have been given for a more modest scheme of five houses or fewer that accorded with the Council’s adopted policy position. The Ombudsman found maladministration, and the Council accepted his criticisms of its decision-making process and offered to follow his recommendations to remedy the injustice. It agreed to:
11 July 2007 Selby District Council (06/C/3908) Maladministration causing injustice The report prepared by Selby District Council on an application to demolish buildings in a conservation area had “serious deficiencies”. The Ombudsman said “Officers, who lacked professional knowledge and expertise, accepted uncritically the applicant’s assertions that converting the building was not commercially viable.” The planning committee that approved the application therefore lacked all the relevant information on which to make its decision. The Selby Civic Society complained about the way the Council decided to approve the demolition of a school and a public house in a conservation area. The Ombudsman found serious deficiencies in the report that the planning committee had considered when taking the decision to demolish. It had been ‘signed off’ by four senior officers before being issued. The serious flaws included:
There were good reasons for the committee to approve the application and the Ombudsman could not say what would have been decided if the report had not been flawed. The injustice to the Civic Society was that its views and relevant issues were demonstrably not considered. The Ombudsman found maladministration causing injustice and recommended that the Council should:
24 July 2007 Bristol City Council (06/B/1379 & 07/B/2281) Maladministration causing injustice Failures by Bristol City Council led to a lost opportunity to minimise the impact of a waste recycling centre on local residents. The Ombudsman found fault by the Council during the site assessment and in its decision-making process. In particular, he said, “Local residents were denied the opportunity to put forward their concerns about the proposal,” and the Council’s environmental health officers had no opportunity to recommend conditions for regulation of the site, or to refuse it outright. He recommended the Council to pay the two complainants £2,000 each for the significant noise nuisance they suffered between August 2005 and November 2006. ‘Mrs Ash’ and ‘Mrs Oak’ (not their real names) complained that the Council granted planning permission for a nearby industrial unit to operate as a waste recycling centre without consulting adjoining properties or the environmental health department. They said that, as a result, the operation of the recycling centre caused noise and environmental pollution to them and other local residents. The Ombudsman found failings by the Council during the site assessment, when the planning application was received, and during the decision-making process. The Council failed to notify neighbours directly about the planning application, and failed to consider the previous history of the site or undertake consultation with its own environmental health department. As a result, the Council lost an opportunity to minimise the impact of the recycling centre on the amenity of the area. When the Council received complaints from local residents it did take action to try and resolve the situation. As a result the situation has improved, although the Council is still considering whether to take more formal action. The Ombudsman found maladministration causing injustice and recommended the Council to:
Mrs Oak lived in a sheltered housing complex and it was likely that the other residents were similarly affected by the nuisance. The Council may wish to consider, in consultation with the manager of the sheltered housing complex, what redress can be made. 30 July 2007 Durham City Council (04/C/17368) Maladministration causing injustice Durham City Council failed to consider policies in its local plan when it gave planning permission for an indoor football stadium that is highly visible from routes into the City. The Ombudsman said that the stadium was built “…in a landscape that was supposed to be specifically protected…”. The complainant, who lived on the opposite side of the valley looking towards Durham Cathedral, could reasonably have expected this view to be protected, preserved and enhanced. The Council gave planning permission for a large indoor football stadium to be built where it was highly visible from rail and road routes into the historic City of Durham. At one point, the stadium impinged on the view of the Cathedral itself from a main approach road to the City. It was also clearly visible from the main railway line. The Council had specific policies in its Local Plan designed to protect and enhance the environment. Policy E11 was concerned with areas visible from transport corridors and said that the Council would protect and enhance areas visible from the road network, railway lines and recreation routes by not permitting development that unacceptably adversely detracted from them. The Council had the right to apply these policies as it saw fit in the circumstances. In this case, the Council did not bring the policies to the attention of the Development Committee which could not, therefore, take them into account when deciding to grant planning permission for the stadium. The Ombudsman found that this was maladministration and the Council agreed to her recommendations for a remedy. It will commission an independent landscape consultant to examine the site and produce a report and recommendations outlining what, if anything, can be done to reduce the visual impact of the building. The Council will then consider these recommendations, and decide whether any of the actions identified should be taken. 9 August 2007 Doncaster Metropolitan Borough Council (06/C/1360) Maladministration causing injustice Doncaster Metropolitan Borough Council’s decision to grant a certificate of lawful use for land was based on a flawed report. The Ombudsman found that the evidence was not properly assessed in preparing the report. The certificate was significant as the land was then considered to be ‘brownfield’ and not caught by a freeze on development on ‘greenfield’ sites. ‘Mr Emery’ (not his real name) complained about the way the Council granted a certificate of lawful use (CLU) for land that had been in the curtilage of a house next to his home. The Ombudsman found that, in considering the application for the CLU, the Council:
This meant that the Committee’s decision to approve the CLU was based on a flawed report. The Ombudsman found maladministration causing injustice. Mr Emery’s expectation that the Council would deal competently with the CLU was not met. He incurred the expense of producing an affidavit that was not properly considered. He experienced worry and outrage, and had to take time and trouble in making his complaint. The Ombudsman did not consider that, but for the maladministration, the land would have remained open space for the foreseeable future, nor that the development causes injustice to Mr Emery. The Ombudsman recommended that the Council reimburse the cost of Mr Emery’s affidavit and pay him £300 for the remaining injustice. 9 August 2007 Dudley Metropolitan Borough Council (06/B/12090 & 13017) Maladministration causing injustice Neighbours of an proposed new advice and counselling centre lost the opportunity to make objections because Dudley Metropolitan Borough Council sent notification letters to the wrong addresses. The Ombudsman found that the complainants had a “justified sense of outrage”, but that the planning application was likely to have been approved by members of the Development Control Committee in any case. He was also critical of the Council’s scheme of delegation to officers, which he said was “confusing”, and that it was unclear just what objections would trigger a referral to Committee. ‘Mr and Mrs Sheffield’ and ‘Mr and Mrs Mansfield’ (not their real names) complained that the Council failed to notify them of an application for planning permission to convert a neighbouring industrial building into an advice and counselling centre. As a result, they were deprived of the opportunity to object to the planning application, which was approved by officers. After the application was approved, the complainants learned that the centre would serve people who have been involved in substance misuse. The Council accepted that it sent the notification letters to the wrong addresses but did not believe the outcome of the application would have been different if they had been received. After interviewing members of the Development Control Committee at the time of the application, the Ombudsman agreed that the application was likely to have been approved if it had gone to Committee. But he also believed that the complainants had a justified sense of outrage at their lost opportunity. The Ombudsman found maladministration causing injustice and the Council agreed to:
18 September 2007 Herefordshire Council (06/B/14891) Maladministration causing injustice ‘Mr Martin’ (not his real name) lived in a cottage in a rural part of Herefordshire, surrounded by fields. The son of a nearby farmer applied for planning permission for a smithy and stables with a farrier’s cottage and apprentice flat on land adjacent to Mr Martin’s property. Mr Martin complained that the Council’s planning committee, in approving the application against the officer’s recommendation: 1. was misled by the presentation of inaccurate information relating to a nearby site and by the omission of extensive photographs supplied by Mr Martin regarding the effect of the proposals on his amenity; and 2. did so without providing sufficient reasons for rejecting the officer’s recommendation for refusal. In particular the committee failed to explain why this application accorded with the Council’s planning policies or why it should be treated as an exception to those policies. Mr Martin said that the development will affect his amenity with an increase in noise and traffic. Furthermore he would lose the privacy and peace he enjoyed from living in an isolated rural spot in open countryside. He also complained that the development, and the potential for further development, was having a detrimental effect on his attempts to sell the property. The Ombudsman found the Council was at fault in failing to give adequate reasons for granting the application against officer advice and against significant local and national planning policies. He accepted that members of the planning committee were entitled to depart from the officer’s advice but only where they have good reason to do so, based on clear and legitimate planning grounds. In this case he found that the members had failed to provide such justification for the decision. This failure caused Mr Martin significant injustice as the amenity he derived from living in open countryside would be permanently lost and could worsen if more development was permitted in the future. He also experienced difficulties in selling his property which appear to be directly related to the approved development. The Ombudsman found maladministration causing injustice, and recommended the Council to:
10 October 2007 Macclesfield Borough Council (06/C/1990) Maladministration causing injustice An error over dates meant that Macclesfield Council lost the opportunity to refuse permission for a new telephone mast. The Ombudsman found that the Council had counted the 56 days it had to refuse the application from the date it was stamped as arriving in the Planning Department, and sent the refusal notice on the last possible date. But the applicant had proof that the Council had received the application on the day before it had arrived in the Planning Department. The refusal notice was therefore ineffective, and the mast was constructed as having ‘deemed consent’. After criticising a number of councils over similar failures over the past few years, the Local Government Ombudsman issued a special report in June 2007 giving guidance to local authorities in England about problems with ‘prior approval’ applications for telecommunications masts. It includes examples of cases very similar to this one. [You can download this report from the LGO website at www.lgo.org.uk/special-reports.htm .] ‘Mr Firswood’ (not his real name) complained that the Council did not respond to an August 2005 application for a telecommunications mast within the statutory 56-day time limit, so losing its chance to refuse permission close to his home where the Council considered it would cause a traffic hazard. When the Council realised its mistake over the dates it failed to tell the people who had objected to the mast. They only became aware when the mast was erected. The Ombudsman found maladministration causing injustice and the Council accepted her recommendations that it should:
30 October 2007 Woking Borough Council (06/A/16418, 17287 & 07/A/2844) Maladministration causing injustice Woking Council’s misunderstanding of legal requirements led it to miss the 56-day deadline for refusal of a ‘prior approval’ application for a mobile phone mast. The Ombudsman said “Its initial response … betrays the defects within its procedures: it treated the application as one for planning permission, when this was not the case.” However, he could not say that the phone mast would not have been erected anyway, if there had been no fault by the Council. After criticising a number of councils over similar failures over the past few years, the Local Government Ombudsman issued a special report in June 2007 giving guidance to local authorities in England about problems with ‘prior approval’ applications for telecommunications masts. It includes examples of cases similar to this one. [You can download this report from the LGO website at www.lgo.org.uk/special-reports.htm .] The Council received an application for prior approval of a mobile phone mast and associated equipment in an area where there were already two other masts. It wrote to the operator, T-Mobile, saying that the application did not comply with legal requirements. T‑Mobile sent back an amended application as requested, but said its original application did meet legal requirements, as in fact was the case. The Council then mistakenly assumed that the statutory period of 56 days it had to respond ran from the date it received the amended application. Consequently, when it refused the application, it was too late, and T‑Mobile lawfully erected the mast and equipment. The Ombudsman found that the Council was at fault as it failed to serve notice of refusal of the prior approval application within the 56 days required by law, and that its procedures on telecommunications development were inadequate. The Ombudsman said that he recognised the complainants’ views on the health effects of the mast and the impact on the value of their homes but, bearing in mind T-Mobile’s policy on appeals, the success rate of such appeals, and the Council’s acceptance that there were no reasonable alternative sites available, he could not conclude that the mast would not be there but for the Council’s fault. The Council acknowledged that it was at fault. The Ombudsman recommended that the Council pays £250 to each of the two complainant households in recognition of the uncertainty they have been faced with and the unnecessary time and trouble they have taken in pursuit of the complaints. He also recommended that the Council reviews its procedures in relation to telecommunications development. 31 October 2007 Dudley Metropolitan Borough Council (06/B/1186 & 6404) Maladministration causing injustice Dudley Council’s consideration of a revised detailed planning application for a housing development was flawed. The Ombudsman said that the Council failed to notice that the new plans breached its guidelines and, as a result, “new houses directly overlook the complainants’ homes, from a much closer distance and at a significantly higher level than should have been permitted.” ‘Mrs Jones’ and ‘Mr Smith’ (not their real names) were neighbours. A new development of 224 houses was planned on a former sports field behind their homes. They complained that the Council’s description of the application for detailed planning consent was misleading, and that it failed to consider their amenity or its own guidelines on minimum separation distances where there is a difference in levels. As a result, the complainants did not realise that the application was significantly different from the previous planning application for the site, and their homes are now dominated by new houses at the rear of their gardens. The Ombudsman found that the Council wrongly treated a significant revision of the application as a minor amendment, and did not notify the complainants, who lost the opportunity to make their objections to the revision known. The Council failed to realise that the final layout breached its guidelines on separation distances, and restricted its consideration to the impact that the proposed development would have on the sole objector. The Ombudsman found maladministration causing injustice and the Council agreed to pay the complainants compensation for any consequent reduction in the value of their properties, plus £250 each for their time and trouble in pursuing the complaint. 31 October 2007 East Cambridgeshire District Council (05/B/1966, 06/B/2810, 2814 & 8087) Maladministration causing injustice There were faults in the way East Cambridgeshire District Council granted planning permission for homes on the site of a former gasworks. The Ombudsman said the Council failed to consider imposing a planning condition requiring decontamination work to be done on the site. The Council was already committed to conducting remedial works, and agreed to the Ombudsman’s recommendation to pay £5,000 compensation to each of the four complainants. Four residents complained about the way the Council dealt with a planning application which led to the development of their homes on land that was formerly the site of a gasworks. They said that the Council failed to ensure that land upon which their homes are built was properly decontaminated prior to construction. The Ombudsman considered there was fault in the way the Council dealt with the application for planning permission. In particular, it did not properly consider whether a condition needed to be imposed on the planning permission to ensure that remedial work was done, and failed to take into account Government advice and guidance on dealing with planning applications for developments on contaminated land. The Ombudsman recognised there was uncertainty as to what would have happened had an appropriate condition been applied at the time. It was possible that decontamination work might have gone further than the minimum standards required at the time. He added “I cannot know for certain that all the complainants’ subsequent difficulties would have been avoided, but they might have been”. The Ombudsman found maladministration causing “significant injustice”, and the Council agreed to pay £5,000 to each of the four complainants in addition to its existing commitment to conduct remedial works to the properties’ gardens at no cost to the owners. 10 Jan |
