Summary: Mr B complained that the Council did not correctly consider an application to vary conditions in a previously granted planning permission. We found the Council at fault. The Council has agreed to apologise to Mr B in recognition of the injustice caused.

The complaint

1. Mr B complains the Council has failed to consider relevant factors when granting planning permission for the alteration of a building at the end of Mr B’s garden. Specifically, he says:
1. the Council allowed a variation which should have been applied for under a new planning application;
2. the Council was not clear in its description of the variation when it published this for consultation;
3. the Council did not assess the impact of the changes it agreed to under the section 73 application, on the character of the conservation area;
4. the Council did not apply its own policy relating to consideration of impact on amenity, overlooking and design;
5. the Council failed to set out its reasoning for approving the amendments under the section 73 application.
2. Mr B says the new plans and use of the building will cause him an injustice by damaging his outlook, the surrounding conservation area, and will detract from his enjoyment and appreciation of the garden.
3. Mr B is seeking a review of the planning application and a withdrawal of permission.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done or failed to do. (Local Government Act 1974, sections 26B and 34D, as amended)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with an organisation’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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What I have and have not investigated

8. I have not investigated how the Council made its decision in the original planning permission application, only the way it has dealt with the related section 73 application. The original planning permission application is late for our purposes and there is no good reason to look at it now.

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How I considered this complaint

9. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
10. Mr B and the Council have had an opportunity to comment on my draft decision. I have considered all comments received before making a final decision.

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What I found

Law and guidance

11. The Town and Country Planning Act 1990 section 73 applies to applications for planning permission for the development of land without complying with conditions the original permission was subject to.
12. On such an application the Council will consider only whether the conditions previously imposed should be changed or removed. If the Council decides it should, the application will be approved.
13. If the Council decides the conditions should remain unchanged, it will refuse the application.

What happened

14. Mr B lives in a conservation area. The Council granted permission for an inter-war garage building to the rear of Mr B’s property to be converted into a residential property in April 2022.
15. This planning permission was issued with conditions. The applicant made a section 73 application to the Council to vary two of the conditions imposed.
16. The Council says the application went through its normal process for a section 73 application. As part of its process, the Council invited consultation by displaying a site notice, placing a press advertisement and notifying neighbouring properties by letter. It says no comments were received in response.
17. The Council says it considered the application to be valid and approved the variation.
18. Mr B complained the Council should not have allowed the variations under a section 73 application. He says it should have dealt with this as an amendment to the original permission, or as a new planning application.
19. Mr B says the updated drawings made a material change as they raise the height of the existing walls.
20. Mr B also said the Council had failed to consider the impact of the variations on the conservation area and the impact on the neighbouring listed buildings appropriately.

Analysis and findings

The Council allowed a variation which should have been applied for under a new planning application

21. Section 73 applications apply to any changes sought to conditions applied to a previous planning permission, which is what was applied for. Section 73 does not include an exclusion which would apply here. Therefore, I do not agree that the Council is at fault for accepting this process as appropriate.

The Council was not clear in its description of the variation when it published this for consultation.

22. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies.
23. In this case, the Council confirms it added more detail to the description than was contained in the application. It accepts however that it could have been clearer.
24. The notice explains the conditions which the application seeks to vary. The application and previous planning permission were available to view online.
25. Although the Council could have added more detail to the application description in its consultation notices, there is no statutory requirement as to how much detail is needed. Having considered the description together with the application, I do not consider the Council at fault.

The Council did not assess the impact of the changes it agreed to under the section 73 application, on the character of the conservation area

26. The Council considered whether the design, layout and scale of the planned development would preserve or enhance the character or appearance of the conservation and a nearby listed building when the original permission was granted.
27. However, when it considered the section 73 application, the Council did not show it had carried out similar considerations. It has explained that due to demands on the service at the time, the Council produced a ‘proportionate and concise report’.
28. The report referenced that consideration of the heritage and conservation area had been made in the original permission, but did not go into any assessment of this issue again.
29. The Council acknowledged that this should have been done. As the section 73 application sought to vary a condition which could impact the conservation area, the Council should have explained its consideration of the impact of the variation again. Its failure to do so is fault.
30. Where we consider the Council to be at fault, we consider the impact this has had. In this instance, the Council has revisited its decision in responding to Mr B’s complaint and confirms that despite the lack of detail in its report, further consideration would not have made any difference to the overall outcome. It still considers the variations to be minor and would approve the application.
31. The injustice to Mr B here is therefore limited to the frustration and uncertainty resulting from the lack of detail in the Council’s decision. This is reflected in the remedy below.

The Council did not apply its own policy relating to consideration of impact on amenity, overlooking and design.

32. The Council confirms it considered the application in accordance with its policies relating to Quality Urban Design, Layout and Form, and Alterations to existing buildings, and is satisfied its decision complies with them all.
33. It also references other conditions in the original planning permission which were imposed specifically to safeguard the impact of amenity, overlooking and design, which remained unchanged by this decision.
34. It is clear the original planning permission took consideration of the impact it may have on amenity, overlooking and design, as well as other issues. The Council implemented conditions to protect these.
35. The section 73 application itself contains a list of conditions which are specifically explained to be intended to preserve this issues Mr B says were not considered.
36. Although Mr B disagrees with the Council’s decision, it took relevant considerations into account and made a decision consistent with the facts. So, I cannot question the merits of the decision made.

The Council failed to set out its reasoning for approving the amendments under the section 73 application.

37. The Council says it has adhered to statutory requirements as although it is required to issue a written decision, the Council is not obliged to include an officer report. The Council takes this to mean that reasoning is not required.
38. However, although the Council is not obliged to include an officer report, a council will often do this as it is an easy way to show it has considered all relevant factors appropriately and come to a sound and defensible decision.
39. Failure to provide an officer report or to give reasons denies the opportunity to understand and to challenge the reasoning, and this is fault.
40. The impact of this is somewhat limited, as Mr B has challenged the Council’s decision, by raising his complaints. The Council has confirmed that having considered the matter again through the complaints process, its decision remains unchanged. It is therefore likely Mr B would have gone through the complaints process regardless.
41. The injustice here is therefore that Mr B has had to ask the Council to explain its reasoning. Again, this is reflected in the remedy.

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Agreed Action

42. Within one month of the decision, the Council should apologise to Mr B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing injustice. The Council has agreed to provide an apology to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman