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Dover District Council (20 001 498)

Category : Planning > COVID-19

Decision : Upheld

Decision date : 09 Oct 2020

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s decision making on planning matters and its handling of her complaint, causing distress and leading to overlooking and risk to her business. The Ombudsman finds no fault in the Council’s decision making on planning matters but finds fault in its complaint handling. The Ombudsman recommends a payment for time and trouble and a further written complaint response.

The complaint

  1. Mrs X complains about the Council’s decision making on planning matters and its handling of her complaint. Mrs X says she has suffered distress and the new development will result in overlooking and create risks to her business.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’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)

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How I considered this complaint

  1. I spoke to Mrs X and considered her complaint. I reviewed documents provided by Mrs X and the Council, in addition to documents available on the Council’s website. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Permitted development

  1. The Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”) sets out development that can take place without a full planning application and planning permission.
  2. Of relevance to this case, a person can convert farm buildings into homes without planning permission in certain circumstances. They only need to apply to the Council for prior approval, whereby the Council will check they meet the criteria under the GPDO.

Planning process

  1. A council must publicise and consult on planning applications. For non-major developments the law says councils must place a site notice or send neighbour letters and advertise on their website.
  2. A planning applicant may suggest changes to their application at any time before the council decides their proposal. A council may also ask the applicant to revise the application to overcome a possible objection. It is at the discretion of the council whether to accept such changes, whether to reconsult or, whether the changes are so significant that it will require a new planning application.
  3. A council must decide on the planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Material considerations include the impact on amenities, such as loss of privacy. A council must be able to show that it has considered material planning considerations.
  4. Planning officers make most decisions but a council may refer others to a planning committee.
  5. On 2 April 2020 the Government temporarily amended the law to allow councils to hold virtual planning committee meetings. The Government issued guidance to say local planning authorities should take advantage of these powers to hold virtual planning committees, rather than deferring committee dates. They should also consider using ‘urgency powers’ within their constitutions to give senior officers delegated authority to make decisions.
  6. On 14 May 2020 the Government introduced legislation that gave councils greater flexibility in providing notice where the traditional methods (such as site notices) were not reasonably practicable due to the effects of coronavirus (including restrictions on movement).

Council policy

  1. The Council’s Statement of Community Involvement is available on its website. This sets out how it will advertise and consult on planning applications. Of relevance:
    • For non major developments it will place site notices and advertise on its website.
    • If it receives comments after the end of the consultation period it may consider these, but cannot guarantee to do so.
    • It is common to amend applications during the process. These changes usually come about through negotiation between the applicant and the case officer, for example following receipt of comments.
    • It may reconsult for 21 working days if it receives amended details.
  2. I note the Council’s website has a “weekly planning list” which publishes a weekly list of validated planning applications and explains how to access full details.

Council Constitution

  1. The Council’s Constitution is available online. This sets out urgency procedures whereby the head of service may make decisions in place of a committee. It says:
  2. “In relation to Council functions when matters of urgency and items not involving matters of policy require decisions between the meetings of a Council or Committee or Sub-Committee of the Council, the Chief Executive or appropriate Head of Service or specified officer shall be empowered, in consultation with the Chairman and Vice- Chairman of the Council or of the relevant Committee or Sub-Committee, or one other member in the absence of either (or two other members in the absence of both), to deal with such items”.

Council complaints policy

  1. The Council publishes its complaints procedure on its website. This says you should first contact the relevant department and it will provide a stage 1 response in 10 working days. If you are unhappy with the response you can go to stage 2 and will receive a further response in 20 working days. If you remain unhappy you can contact the Ombudsman.

What happened

  1. Mrs X lives near to a farm (the “Site”).
  2. The Site owner applied for prior approval to convert five farm buildings into five homes under the GPDO. The Council found the Site owner could not convert three buildings due to their limited structure. The Site owner then amended the application seeking conversion of two buildings into two homes.
  3. In early 2019 a planning officer considered the application and produced a report setting out their views. They found the proposed change in use was in accordance with the GPDO and recommended approval. The Council granted prior approval.
  4. In late 2019 the Site owner applied for planning permission to demolish the same five farm buildings and build three detached homes and garages in their place.
  5. The Council placed a site notice and advertised on its website.
  6. The Council received comments from the public including Mrs X. She complained about overlooking and increased traffic. She was concerned the new residents would complain about noise from her own business. In addition, the development was not suitable or in keeping with the area and there should be a condition to ensure the asbestos present was properly removed.
  7. In November the Site owner submitted amended plans.
  8. Mrs X asked the Council how she could comment on the amendments and whether the application would go to the Planning Committee.
  9. The Council told Mrs X the application itself had not changed so it was not re- advertising changes or reconsulting, but she could provide comments. The Council said it was unlikely to go to the Planning Committee before February 2020.
  10. On 11 February 2020 Mrs X complained to the Council about planning applicants using approval under the GPDO as leverage on a later planning application. She felt the Council’s decision to grant prior approval in this case must be incorrect it if then went on to grant planning permission.
  11. The Site owner made further amendments to the planning application, seeking to demolish the five farm buildings and build two homes plus garages in their place, (rather than three homes).
  12. The Council says it put up a site notice and advertised on its website.
  13. On 3 March 2020 Mrs X complained to the Council that the Planning Committee did not discuss the case on 13 February as scheduled. She questioned whether the Council would notify her and others of the correct date to attend.
  14. Mrs X chased the Council on 7 April. She said she was not made aware of any amendments to the application and did not have chance to comment. She questioned how she could raise concerns at a planning committee meeting during lockdown. She also queried whether the new case officer had any conflict of interest.
  15. A planning officer considered the planning application and produced a report setting out their views. In summary I note the officer:
    • Refers to applicable law and policy.
    • Summarises the objections received, including those of Mrs X.
    • Notes the closest neighbour is on the opposite side of the road and 50m away.
    • Notes two of the farm buildings have prior approval for conversion into two homes.
    • Acknowledges the development is contrary to three policies of the development plan as it was outside the settlement boundaries, resulted in a need to travel and would have an adverse impact on the countryside.
    • Explains how the most critical policy could be viewed as out of the date and the other two should carry less weight as they were at tension with the National Planning Policy Framework (“NPPF”). Such that the officer considered it appropriate to apply the “tilted balance” outlined in the NPPF. That is to grant planning permission unless the adverse impacts significantly and demonstrably outweighed the benefits, having regard to the NPPF as a whole.
    • Notes the fallback position; the Site owner already had approval to convert two farm buildings into two houses, which was a significant material consideration.
    • Sets out their assessment of the development against material considerations, when applying the tilted balance and having regard to the fallback position.
    • Considers there would not be any material impact on residential amenity, given the distance between the development and neighbours.
    • Considers it unlikely the additional light from car headlamps would amount to a nuisance to neighbours.
    • Considers the future occupiers are unlikely to be affected by noise from nearby commercial premises given the distance between them.
    • Notes the travel and traffic that could be generated by lawful existing use plus that which could arise under the fallback position. Bearing this in mind finds they cannot object on this point.
    • Recommends the Council grants planning permission subject to conditions.
  16. A subsequent record attached to the report says it would usually go to the Planning Committee but due to the pandemic a decision will be made by the head of service under the urgency powers within its Constitution.
  17. The Head of Planning, Planning Committee Chairman and Planning Committee Vice Chairman decided to agree the officer recommendation and granted planning permission, with conditions.
  18. On 21 April the Council logged Mrs X’s complaint under its complaint process.
  19. The Council provided a stage 1 response on 22 April. In brief it:
    • Explained Mrs X’s emails went to a case officer who had since left, though these were forwarded to the present officer.
    • Apologised for the delayed response, in part due to a change in working practices due to the pandemic.
    • Explained the law around permitted development which allowed the Council a far more limited consideration of a proposal than a full planning application would.
    • Explained how it considered the subsequent full planning application and the need to have regard to any approved permitted development, which presented the fallback position. This was a significant material consideration.
    • Where relevant council policies are out of date, as in this case, the NPPF says it should only refuse permission if the harm caused by the proposed development would ‘significantly and demonstrably’ outweigh the benefits.
    • Mrs X had referred to another proposal, which was refused for reasons detailed in the case officer report.
    • The planning application did not make it onto the committee agenda for February and due to staff absence it did not update the information on its website.
    • The application was reallocated to another officer, with no conflicts of interest. The Site owner made further amendments which it advertised by a site notice.
    • The case was due to go to the Planning Committee on 16 April but it cancelled this due to the pandemic. It then decided the application under urgency procedures in line with Government guidance.
  20. Mrs X asked to go to stage 2 on 22 April. In brief:
    • She sent emails to various officers but received no reply. She wanted an explanation as to why this happened and how the Council would prevent recurrence.
    • She questioned whether a site notice was adequate given the lockdown restrictions on movement.
    • She questioned whether it was fair to cancel the Planning Committee meeting, preventing the public from giving their views.
    • The Council has made clear the GPDO does not allow a person to demolish and rebuild, yet it has approved a planning application allowing just that. This appears to be a contradiction.
    • The Council approved two buildings for conversion under the GPDO, but the Site owner then said those building were not suitable for conversion and applied to demolish them. The Council then approved that application. This appears to be a contradiction.
    • That someone can use the GPDO to gain approval for developments that would not usually be allowed under a full planning application is a contradiction.
    • She thinks the Council has decided other cases differently. In particular it refused planning permission for her neighbour to convert a garage into a home. In that case it applied policies that do not appear to have been applied in this case.
  21. The Council provided a further response on 15 May. In brief it said:
    • When an officer left their emails were passed to another officer, however they then found it difficult to manage the increased workload. In future it will ensure it acknowledges receipt of a complaint so it is clear it is looking into the matter.
    • The Government made clear it should continue to put up site notices, this did not change during lockdown.
    • The urgency procedures, which are a feature of the Council’s Constitution, allow for decisions which, under normal circumstances would be taken be the Planning Committee, to be taken by the Head of Planning in consultation with the Chairman and Vice-Chairman of the Planning Committee. It took all comments into account.
    • It judges each application on its own merits and case officer reports give reasons for its decisions.
    • Approval under the GPDO is not a loophole but it does present a fallback position. It takes this into account when considering a full planning application.
  22. Mrs X told the Council she would contact the Ombudsman. She did not consider a site notice during lockdown gave adequate notification. And it had not clarified contradictions in its decision making.
  23. Mrs X then raised concerns about asbestos and the Council confirmed this was not a planning matter for its to consider under the planning application.
  24. In her complaint to the Ombudsman, Mrs X refers to other planning decisions whereby the Council made clear the GPDO does not allow a person to demolish a farm building and rebuild a house. She therefore considers the Council’s decision to approve conversion under the GPDO conflicts with its later decision to grant planning permission for the demolition of those same buildings.

Findings

  1. It is possible to convert a farm building into a home without planning permission, under the GPDO. However, if a person wants to demolish a farm building and rebuild a home, they must apply for planning permission. These laws are not in conflict with each other. Rather Parliament has decided to make it easier to convert farm buildings and has required a more onerous process if you want to demolish and build anew.
  2. The Council approved the conversion of two farm buildings into two homes under the GPDO. That did not prevent the Site owner from later applying for planning permission to demolish the farm buildings and build new homes. Nor did it prevent the Council from considering this planning application.
  3. It is matter of professional judgement for the Council as to whether a farm building can be converted under the GPDO or whether the works are so great they go beyond conversion and are not permitted under the GPDO. I note the Council refused prior approval on a third party application because it was not possible to convert those buildings into homes, taking into account their existing structure. I do not find this evidence of inconsistent decision making.
  4. I am satisfied the Council advertised the planning application by way of a site notice and on its website, in line with law and policy.
  5. An applicant can make amendments and the Council can ask for amendments at any time, including after consultation has closed. I find no fault in this regard.
  6. It was up to the Council how to deal with any amendments and it decided to advertise and reconsult on amendments made in February 2020. The Council again put up a site notice and advertised on its website. I note Mrs X and others would not have seen the site notice due to the lockdown, however the Council’s action was in line with the law and policy applicable at the time. I therefore cannot find fault.
  7. It is up to the Council whether to accept comments on an application after the deadline for consultation has passed. Therefore, I find no fault in this regard.
  8. It is up to the Council to decide when to hold planning committee meetings and which cases will be on its agenda. I note the Council did not provide up to date information in this regard on its website, for which it has apologised. I find no fault in the Council’s intention to consider the case at its later 16 April 2020 meeting.
  9. Having reviewed the case officer’s report, I am satisfied the Council considered the planning application taking into account relevant law, policy and material considerations. The officer has provided clear reasons for the conclusions reached, including explanations for departing from relevant policy. I note the details of the application are different to a third party application seeking to demolish a garage and build a home, and so the Council’s consideration is also different. While Mrs X did not have the chance to raise further objections, the Council still had to take account of material considerations, including the impact on residential amenity. The case officer’s report shows the Council took account of all relevant information, including the fallback position, as it was entitled to do so.
  10. Prior to the Planning Committee meeting the Government decided to allow councils to take decisions under their urgency procedures due to the pandemic. The Council then cancelled the planning committee meeting and the Head of Planning decided the application in accordance with its urgency procedures. The head of planning considered the case officer’s report alongside the Committee Chairman and Vice-Chairman and decided to approve the application. I find no fault in the Council’s decision making process.
  11. The Council delayed addressing Mrs X’s complaint from February through to April 2020. This is fault. I note the Council has apologised, explained why this arose and suggested it will at least acknowledge complaints in future. However, I find this is not sufficient to remedy the time and trouble Mrs X suffered as a result.
  12. Having reviewed the complaint correspondence I consider the Council did not address all the points Mrs X raised, causing her further time and trouble in complaining to the Ombudsman.

Agreed action

  1. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
    • Pay Mrs X £100 for time and trouble.
    • Ask Mrs X if she has any remaining concerns and if so, provide a further written response.
  2. The Council has accepted my recommendations.

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Final decision

  1. I find no fault in the Council’s decision making on planning matters however I find fault in its complaint handling. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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