Summary: Mr X complains the Council failed to add a condition about the use of materials to a neighbour’s planning permission. As a result of this fault, the neighbour has used plastic cladding when the Council intended natural timbers to be used. The use of this material has impacted on Mr X’s visual amenity. An appropriate remedy is proposed.

The complaint

1. Mr X complains the Council failed to add a condition about the use of materials on a planning permission for a neighbouring extension.
2. He says the resulting in building is out of keeping with the area and has affected his visual amenity.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments before making my final decision.

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What I found

6. Mr X lives in a converted heritage building. He previously sought planning permission to build a rear extension. His planning permission included a condition requiring the prior approval of the materials to be used. This condition was added to ensure the extension was in keeping with the main building and required natural materials to be used.
7. Mr X’s neighbour sought planning permission in August 2018 to build an extension. The case officer visited the site and spoke to Mr X’s neighbour. The Council says the discussions covered the materials for the extension and the case officer had the impression the neighbour would use natural materials.
8. The Council determined the planning application under delegated authority. A delegated decision report was prepared which stated “the proposed extension is considered to be of an appropriate size, scale, design and detailing with materials considered to be in keeping with the existing property.” The application was approved with three conditions. No condition was added requiring the applicant to seek approval for the materials.
9. The neighbour began building the extension. Mr X was concerned about the materials being used and so contacted the Council in December 2018. He said the neighbour appeared to be using a white plastic cladding material and not natural timbers.
10. The Council says it checked the decision notice and saw there was no condition about the materials. It then phoned the neighbour’s agent to seek clarification. I have not seen any notes of the telephone call but the Council says the agent was surprised and gave the impression he thought natural materials would be used.
11. The agent called the Council after speaking to the neighbour. He said the neighbour confirmed he was using an imitation wood cladding. The neighbour was not willing to change the materials as he said the build was too far advanced.
12. The case officer visited the site in early 2019. The neighbour was unwilling the change the materials even if the Council covered the costs. He was concerned about the time and cost of maintenance with natural wood timbers. The neighbour also rejected the suggestion of painting the cladding due to the ongoing maintenance issues.

Analysis

13. The Council accepts there was fault in this case. It was its intention that the extension would be built in natural materials. To achieve this it should have included a condition requiring the prior approval of the materials to be used. The failure to include such a condition means the neighbour is free to use any materials he chooses, regardless of how it looks and there is no action the Council can take to enforce changes.
14. I note the Council did make efforts to negotiate with the neighbour and it tried to reduce the impact. However, this relied on the good will of the neighbour because the Council had no enforcement powers. As a result the neighbour has constructed the extension in materials the Council would never have approved if it had properly determined the planning application.
15. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. This is not possible in this case and so I have considered what other action can be taken. As well as asking for a symbolic payment to acknowledge the avoidable distress caused, I consider the Council should make a payment to allow Mr X to put in some screening at his property to reduce the visual impact of the extension.

Agreed action

16. Within one month of my final decision the Council agrees to pay Mr X £500 to acknowledge his avoidable distress and to enable him to erect screening in his property.
17. I am pleased to note the Council’s commitment to share the learning from this case with all planning officers to ensure the same fault does not re-occur.

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Final decision

18. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the action I have recommended. These appropriately remedy the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman