Summary: The Council’s Planning Committee failed to properly explain its reasons for granting planning permission to Mrs X’s neighbour for a residential extension. It also failed to properly deal with her enforcement complaint. The Council has agreed to apologise to Mrs X and Mr B, make a payment to Mrs X, complete its enforcement investigation and take action to prevent similar failings in future.

The complaint

1. Mr B is complaining on behalf of his mother, Mrs X. Mr B complains that there were failings in the way the Council granted planning permission to Mrs X’s neighbour to erect a first-floor side and rear extension. In particular, Mr B says that the decision was inconsistent with previous decisions to refuse permission for smaller proposals and the Council failed to explain how it considered the applicant had overcome the reasons for refusing the previous planning applications.
2. Mr B believes the Council’s Planning Committee decided to grant planning permission because the applicant is a Councillor and fellow member of the Planning Committee.
3. Mr B also complains that the Council has failed to deal with his Code of Conduct complaint against the Chair of the Planning Committee and has failed to deal with his enforcement complaint.
4. Mr B says the extension is extremely overbearing and unsightly and has caused Mrs X significant distress.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• watched a YouTube video of the Committee meeting;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Overview

9. Mrs X’s neighbour applied for planning permission for a first-floor side and rear extension. The proposed side extension would run along the rear boundary of Mrs X’s garden and would measure 13.2 metres in depth and have a height of 7.5 metres at its highest point.
10. The application was referred to the Council’s Planning Committee for determination because the applicant was a Councillor and member of the Planning Committee.
11. Officers recommended that planning permission be refused. The officer’s report explains that the Council had refused applications for similar extensions on three previous occasions, in 2007, 2008 and 2009. The applicant had appealed the Council’s decision to refuse permission in 2007 but the Planning Inspector agreed that planning permission should not be granted. On each occasion, it was decided that the proposal would have an overbearing impact on Mrs X’s house and garden because of the short length of the garden of her house, and the height and mass of the extension and its close proximity to the boundary. Officers considered the applicant had not overcome the reasons for refusing the previous planning applications.
12. Against officer advice, the Planning Committee decided permission should be granted. The reasons it gave for its decision were that:

“the application does not harm the amenity of [neighbouring properties], the Inspector’s decision on the earlier appeal was incorrect as the proposal has no greater detrimental impact on the residents [of neighbouring properties] and [Mrs X’s property] has reduced their own amenity by their rear extension.”

13. Mr B complained to the Council about its decision and about the conduct of the applicant and the Chair of the Planning Committee. Mr B believes planning permission was granted because the applicant is a member of the Planning Committee and friends with other members of the Committee, and in particular the Chair. When Mr B complained to the Ombudsman, the Council had not completed its investigation of Mr B’s Code of Conduct complaints.
14. Mr B also complained that the applicant was not complying with the conditions of the planning permission. He said that the building works were being carried out on Sundays, outside of the permitted hours, the applicant had not addressed a condition relating to a protected tree, and the bricks did not match those of the existing building. He is particularly aggrieved by a window sized section of brickwork which was removed and then replaced haphazardly which he considers to be unsightly. The Council has not yet completed its enforcement investigation.

Analysis

Planning decision

15. Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. Applications which are not in accordance with relevant policies in the development plan should not be allowed unless material considerations justify granting planning permission.
16. The officer’s report shows that officers considered the side extension was contrary to several policies in the development plan and that there were no material planning considerations in support of the proposal.
17. I have considered the reasons the Committee gave for departing from the development plan. One of its reasons was that Mrs X had reduced her own amenity by extending her property.
18. After the 2007 proposal was refused planning permission, Mrs X did add a conservatory to her property, which she later replaced with an extension. This reduced the distance between her house and the rear boundary from 12.3 metres to 8.6 metres.
19. Comments made during the Committee meeting suggest that members considered the applicant should not be disadvantaged because Mrs X had extended her property. But officers had not recommended planning permission be refused because of the distance between the extension and the rear boundary. Even before Mrs X erected the conservatory, the impact of a first-floor side extension was considered to have an unacceptable impact on her amenities. And so the reason given by the Committee does not explain why it reached a different conclusion to that reached by the Council and the Planning Inspector previously.
20. Another reason the Committee gave for granting planning permission was because the proposal did not harm the amenity to neighbouring properties. This is a very different view to that reached by the Council’s officers, who considered the proposal would have an overbearing effect and would unduly harm the outlook from Mrs X’s property. It is also a different view to that reached on the previous similar proposals.
21. The Committee said that it disagreed with the Inspector’s decision on the earlier appeal because the proposal had no greater detrimental impact on the residents of neighbouring properties. But it did not explain the reasons for reaching this different view. Case law says that where a previous appeal decision is of direct relevance, the decision-maker should explain any discrepancy with the earlier decision and provide reasons for any departure from those conclusions which differ from their own. The Committee did not do so; this was fault.
22. I have considered whether the Committee’s failure to provide clear and convincing reasons for reaching a different view calls into question its decision to grant planning permission. The Committee has to have regard to the Planning Inspector’s decision, but it is entitled to reach a different view. I am satisfied that the Committee was aware of the relevant planning matters and decided that there were material considerations to justify granting planning permission. I therefore consider that if there had been no fault, and the Committee had properly explained the reasons for its decision, it still would have granted planning permission.
23. Members of planning committees are entitled to apply for planning permission and have their application fairly considered. However, it is important that decisions are fully explained and justified so that there are no grounds for accusations of favouritism from members of the public. The Committee’s failure to properly explain and justify its decision gave rise to suspicions of impropriety and led Mrs X and Mr B to feel that they had been unfairly treated.

Code of conduct complaints

24. Mr B complained about the conduct of the applicant and the Chair of the Planning Committee in August 2020. The Council told Mr B in September 2020 that the Council had appointed an external investigator to carry out a preliminary assessment. It did not provide any further updates until February 2021, when it advised that the investigator had completed his assessment. The Council sent the assessment decision notices to Mr B which concluded that the elected member who was the applicant had not breached the Code of Conduct, but that the complaint against the Chair of the Planning Committee warranted a formal investigation. The formal investigation was carried out by another external investigator who concluded that the Chair had not breached the Code of Conduct.
25. The Ombudsman cannot criticise a decision which has been made without fault. I have found no evidence of fault in the way the conclusion was reached.
26. There were some delays in the process and the Council should have updated Mr B on a more regular basis. I do not consider this caused Mrs X or Mr B any significant injustice.

Enforcement complaint

27. After Mr B made an enforcement complaint in September 2020, the Council visited the site and took some photographs to check whether the materials used on the extension were significantly different to the original building. It also wrote to Mrs X’s neighbour on two occasions advising him to adhere to the permitted hours of construction or risk action for a breach of condition. The Council has not taken any further action; it says the case has not been concluded and remains under investigation.
28. Mr B’s enforcement complaint was given a medium priority, which means the target timeframe for providing Mr B with a response to his complaint is 28 days. It is now around a year later and the Council has not decided whether there is a breach of planning control, or whether it should take any enforcement action. This is fault and will have caused Mrs X and Mr B significant frustration.

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Agreed action

29. Within four weeks, the Council will:
• Apologise to Mr B and Mrs X for the failings identified in this case.
• Make a payment of £500 to recognise Mrs X’s distress and the time and trouble Mr B has been put to pursuing her complaint.
30. Within eight weeks, the Council will:
• Provide training to members of its planning committee on probity in planning and how to properly explain its decisions.
• Develop a process for monitoring outstanding enforcement complaints to ensure that, wherever possible, investigations are completed within the target timeframes.
• Complete its enforcement investigation and write to Mr B and the Ombudsman with the outcome of its investigation.

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Final decision

31. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman