Summary: Mrs X complained that the Council wrongly approved a planning application for a development next to her property. There was no evidence of fault in how the Council considered the planning application. The Council delayed in dealing with Mrs X’s complaint at stage two of its complaints procedure which caused frustration to her. The Council has apologised to Mrs X for the delay which was an appropriate and proportionate remedy.

The complaint

1. Mr Y complained on behalf of Mrs X. Mrs X complained that the Council wrongly approved a planning application for a development next to her property. In particular, Mrs X considers that the Council:
1. Failed to properly consider whether or not an earlier planning permission had been implemented or whether it should have been formally confirmed as having lapsed. As a result, following officers’ advice, the Committee placed very significant weight to the lapsed permission which was an irrelevant factor.
2. Failed to place weight on the fact that the development was intentional unauthorised development and the application was retrospective when considering the application.
3. Failed to recognise there was significant confusion, contradiction and inaccuracy in the proposed plans as to the siting of the development in relation to Mrs X’s property. As a result, the development is significantly closer to her property than permitted under the previous permission.
4. Imposed a condition which failed to meet the six tests of enforceability and including a tailpiece which provided insufficient precision about what would be permitted
5. Failed to properly investigate complaints about non compliance with approved documents and breaches of adopted policy and failed to keep complainants informed.
2. Mrs X considers that, as a result, the Council approved a development which has a significant impact on her amenity and which does not provide acceptable living conditions for future occupiers or adequately mitigate the risk of flooding.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 investigated events from June 2023 to September 2024. I have exercised discretion to investigate events from June 2023 when the Council considered the planning application which is the subject of this complaint. The Council delayed in dealing with Mrs X’s complaint about the application so there are good reasons why she could not make a complaint to us sooner about this matter. I have not investigated how the Council dealt with Mrs X complaints about unauthorised development at the site prior to June 2023. It was open to Mrs X to make a complaint to us about these matters sooner and there are no good reasons to investigate these matters now.

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How I considered this complaint

9. I considered evidence provided by Mr Y on behalf of Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X, Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

13. Planning considerations do not include things like:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.
15. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
16. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
17. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
18. Government statements of planning policy are material considerations.
19. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
20. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
21. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
22. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

What happened

23. The following is a summary of the key events which are relevant to my consideration of the complaint. It does not include everything that happened.
24. Some years ago, the Council granted planning permission for a development next to Mrs X’s property. The developer later applied to vary the approved plans. The Council granted planning permission for this application. I shall call this consent A. The developer did not build the development in accordance with the approved plans for consent A. The developer submitted a retrospective planning application for the development. I shall call this application B.
25. The Council set out its assessment of application B in a report. The report explained that the Council had assessed the whole scheme against its development plan and not just the amendments. It also said that consent A was very similar and was a strong ‘fallback’ position which should be afforded very significant weight in the decision making process. The report set out where the development did not comply with its development plan, why officers considered that to be acceptable and where officers placed weight on the fallback position.
26. The report said:

• The design changes were relatively minor compared to consent A and, as significant weight should be placed on the fallback position, officers did not consider the changes were of such magnitude that they would warrant refusal on design grounds.
• Some aspects of the quality of the accommodation did not meet the requirements of the development plan and London plan. But officers considered the development provided an acceptable standard of accommodation.
• Officers considered the development would not result in significant harm to the outlook and amenity of adjoining occupiers and continued to comply with the local plan.
• Residents had raised concerns about the implementation of the sustainable drainage system (SuDS). Officers recommended a condition requiring compliance and maintenance with the details approved with the previous application.
• Officers recommended approval of the application.

27. The Planning Committee considered application B. The recording of the meeting shows an officer presented the Council’s assessment of the application and highlighted where the development deviated from consent A. Mrs X submitted a statement setting out her objections to the application which was read to the Committee by an officer. The Committee also heard a statement in support of the application and from a councillor setting out residents’ concerns about the development and the application. Members raised concerns about a number of aspects of the development including about the access not complying with the local plan and that the application was retrospective. Following a debate the Planning Committee approved application B.
28. The Council issued the decision notice some months later following further consideration by officers.
29. Mrs X made a complaint to the Council about its decision to grant application B. She said the Council was wrong to place significant reliance on consent A as it had lapsed and the condition for the maintenance of the SuDS failed to comply with six tests required by the National Planning Policy Framework. Mrs X also said there were errors of fact in the siting of the building, the width of the access and the drainage.
30. The Council considered the complaint through its two stage complaints procedure. At stage one the Council said:

• It was a matter for the decision maker to decide how much weight to place on each material planning condition. The Planning Committee saw images of the plans for consent A and application B so members were aware of the differences. Members were also not wholly reliant on the fallback position.
• The SuDS condition complied with the six tests and was lawfully imposed.
• Officers carried out site visits and checked the measurements on site. The Planning Committee was aware of the positioning of the building when considering the application.
• The planning application sought to regularise the development. Officers were aware of residents’ concerns that the SuDS condition had not been complied with and enforcement action could be taken if the condition was not complied with.
• Drainage matters were considered when the Council issued the decision notice some months after the Planning Committee meeting.

31. Mrs X escalated her complaint to stage two. The Council should have considered the complaint within 20 working days but it took two and a half months longer than it should have done to respond. The Council apologised to Mrs X for the delay in its response to her complaint. The Council did not uphold Mrs X’s complaint.
32. The Council received a written representation after the Planning Committee’s consideration of the application. This said there was a sewerage leak at the property. The Council has said it did not consider this was relevant to whether the development was acceptable in planning terms.
33. Mrs X made a complaint to the Council about a sewage smell from the site. The Council advised Mrs X that foul water disposal was not a planning matter. It referred her complaint about sewage odour to its environmental health team to investigate. The Council visited the development several months later but did not witness a statutory nuisance from sewage odour.
34. In response to my enquiries the Council said:

• It considered consent A had not lapsed as it had lawfully commenced. The developer had notified the Council that the development had commenced before the expiry of the consent. The Council had considered if the deviation from the approved plans meant consent A had not lawfully commenced. The Council considered the condition to build in accordance with the approved plans was a post commencement condition. It was not a pre commencement condition so was not a true condition precedent. The Council was therefore satisfied that consent A had legally commenced.
• Caselaw had established a two stage process for fallback positions: firstly establishing if one exists and secondly, deciding how much weight to place on it. Case law also established that for a fallback position to exist there must be a realistic prospect that the development could be implemented. But this did not need to be probable or likely. The Council considered it was practically possible for the developer to rebuild in accordance with consent A so the fallback position existed. It was therefore a material planning consideration and the Council was entitled to place weight on it.
• The Planning Committee placed moderate weight on the benefits of regularising the breaches of planning consent. The Committee also expressed displeasure that the development had not been built in accordance with the approved plans of consent A. But the Committee did not place substantial weight on the behaviour of the developer.
• The SuDS condition met the six tests for planning conditions. It was satisfied that the condition was necessary to ensure ongoing compliance, relevant as sustainable drainage was a planning matter and relevant to the development. It also considered the condition was enforceable as it clearly said what needs to be done and precisely identified what the developer needed to comply with. The Council also considered it was reasonable as it required compliance with previously approved details and the ongoing maintenance requirement was proportionate given the importance of flood mitigation.
• If proportionate to do so, the Council could investigate whether the SuDS works had been undertaken as approved even though the development was complete. Officers could request intrusive inspections to examine buried infrastructure. The Council said it had not received evidence to suggest the drainage works had not been completed in accordance with the approved scheme.
• Disposal of foul water sewage is not a planning matter. The Council did not have any enforcement power as it falls outside the local planning authority’s jurisdiction.
• Officers visited the site on several occasions and had measured various aspects of the development. It was satisfied the plans submitted for application B were accurate. The Council noted that the development was between 12-13 cm closer to Mrs X’s boundary than on the approved plans for consent A.
• It did not act on the written representation about a sewage leak at the development site as it was not a planning matter.
• The Council could not take any action to determine if the foul water disposal works complied with building regulations. It did not have any powers of enforcement in accordance with sections 48 and 51 of the Building Act 1984. This is because the Council had accepted an initial notice when the work commenced and a final certificate on completion of the works.

35. Mrs X remains concerned that the developer has not installed the SuDS system in accordance with the approved scheme. She considers photographs taken of the development in 2020 show the material used for the SuDS systems was not in accordance with the approved scheme. Mrs X also considers the developer has wrongly combined the surface water drains with the foul water system which has caused a sewage smell and increased the risk of flooding.

Analysis

36. It is not our role to come to our own decision on whether consent A had been implemented or whether there was a fallback position. It is also not our role to come to our own view on the planning merits of application B and whether it should be approved. Our role is to examine whether there was fault in how the Council reached its decisions. We will only question the merits of a decision if we consider there is evidence of fault in how it was reached.

Failed to properly consider whether or not an earlier planning permission had been implemented or had lapsed.

37. The Council has provided reasoned explanations for why it considered the development had lawfully commenced and why the deviation from consent A did not invalidate the planning permission. It has also explained why it considered the consent A was a fallback position open to the developer. In addition. the Council has shown it considered case law when considering these issues. I therefore consider the Council properly considered whether consent A had lapsed and whether a fallback position existed. So, there is no evidence of fault in how the Council reached its decisions.
38. Mrs X disagrees with the Council’s interpretation of the case law, including its position on which case law was relevant. Our role is limited to investigating if there is fault and service failure. So, our focus is on whether the Council followed the proper process when considering the planning application. We cannot resolve questions of law, including the interpretation of case law and which case law is relevant. That is a matter for the courts. I therefore cannot decide if the Council’s interpretation of the case law, including which case law applies, is correct.

Consideration of the planning application including the weight given to the fallback position and unauthorised development, inaccurate plans and the planning condition

39. There is no evidence of fault in how the Council considered application B. The Committee report was detailed and reasoned. It assessed the whole development against the development plan and identified the material planning considerations. The report also set out the changes between consent A and application B and evaluated those changes. It identified where the changes were not in accordance with the development or London plans and explained why officers considered them to be acceptable.
40. The recording of the Planning Committee meeting show officers presented the report and plans in detail. An officer also read out Mrs X’s and a local councillor’s statements to the Committee. So, the Planning Committee was aware of the key issues, including Mrs X’s and other residents’ concerns, when reaching its decision.
41. Mrs X and Mr Y consider the Council should not have placed significant weight on the fallback position. They also consider the development was intentionally unauthorised and the Council should have placed significant weight on this. The Council did not explicitly consider if the development was intentionally unauthorised. But it had considered the fallback position and it was aware the development was unauthorised. So, on balance, there is no evidence of fault in the Council’s consideration of these matters. It is a matter for the Council to decide what weight to give to each material planning consideration.
42. There is no evidence of fault in how the Council decided the plans for application B were accurate. Officers visited the site to check the plans. The development was built so officers were in a position to assess the relationship between the development site and Mrs X’s property. Officers also set out their assessment of the impact of the development on neighbouring properties in the Committee report. So, I am satisfied the Council considered the impact on Mrs X’s amenity.
43. The Council has provided a reasoned explanation of why it considers the condition for the SuDS scheme to meet the six tests and to be enforceable. I therefore do not consider there is evidence of fault.
44. I am therefore satisfied that the Council followed the proper decision making process when considering the planning application and there is no evidence of fault.

Mrs X complaint about the foul and surface water (SuDS) disposal systems

45. The Council’s position that foul water disposal is not a planning enforcement matter is correct. The matter of whether the foul water disposal system was correctly installed would be a matter for building control. But the Council’s position that it does not have any building control enforcement powers is also correct. This is because the developer served an initial notice which had the effect of withdrawing the Council’s enforcement powers. So, I am satisfied there is no evidence of fault in how the Council made its decision that it could not take planning or building control enforcement action regarding the foul water disposal system.
46. The Council has not investigated if the SuDS scheme complies with the approved scheme during the period I have investigated. In response to my enquiries, the Council said it has not seen evidence to show the SuDs scheme was not installed in accordance with the approved scheme. There is no evidence to show the Council’s decision was flawed. However, Mrs X has very recently provided evidence which she considers shows the SuDS scheme was not installed as approved. This is new information which the Council will need to consider so it is outside the scope of this investigation. The Council should therefore consider the information provided by Mrs X to decide if it warrants an enforcement investigation.

Complaint

47. The Council should have responded to Mrs X’s stage two complaint within 20 working days. It delayed in responding to Mrs X’s stage two complaint by two and half months. This was fault which will have caused frustration to Mrs X. The Council apologised to Mrs X for the delay in the stage two response. This is a sufficient and proportionate remedy for the frustration caused to Mrs X.
48. We have recently made a recommendation aimed at addressing delay by the Council in responding to planning complaints. It is therefore not proportionate to recommend further service improvements to address the delays in this case.

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Decision

I have completed my investigation and I do not uphold Mrs X’s complaint about the Council’s consideration of a planning application. I have found fault by the Council as it delayed in dealing with Mrs X’s complaint but it has apologised to Mrs X which is a sufficient and proportionate remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman