The Ombudsman's final decision:
Summary: Mr B complained about the Council’s decision to grant a Certificate of Lawfulness for development next to his home. We find that while the decision was one the Council was entitled to make, it failed to properly consider Mr B’s representations about the matter or to document such consideration, and that was fault. There was further fault in the Council’s handling of Mr B’s complaint. These faults led to injustice for Mr B, for which a remedy has been agreed.
- The complainant, whom I shall call Mr B, complained the Council wrongly granted a Certificate of Lawfulness for an outbuilding next to his home, which has a crowned roof and a height of 4m. Mr B reports the development causes an unacceptably cramped and overbearing impact, impacting his amenity from his neighbouring bungalow.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of the information it provided n response.
- I have taken account of the Ombudsman’s guidance on remedies.
- Mr B and the Council had an opportunity to comment on my draft decision, and I considered all comments received in response before making my final decision.
What I found
Legal and administrative information
- Permitted development (PD) rights are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application. Such rights are subject to conditions and limitations to control impacts and to protect local amenity. The Town and Country Planning (General Development Procedure) Order (England) 2015 is the principal order which sets out classes of development for which a grant of planning permission is automatically given.
Lawful development certificates
- The Town and Country Planning Act 1990 sets out that an application may be made to the local planning authority for a Lawful Development Certificate made where someone wishes to be certain that the existing use of a building is lawful for planning purposes or that a proposal does not require planning permission.
- A Lawful Development Certificate is a legal document stating the lawfulness of past, present, or future building use, and if granted by the council the certificate means enforcement action cannot be carried out to the development referred to in the certificate.
- In 2019 Mr B’s neighbour applied to the Council for a Certificate of Lawful Development for a detached garage and store.
- The planning officer prepared a report, noting that the key consideration was whether the proposal constituted PD and that the application would be considered against Schedule 2, Part 1, Class E of the Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2015 (‘the GPDO’).
- The list of circumstances in which development is not classed as PD under Class E of the Order includes where:
“The height of the building, enclosure or container would exceed
(i) 4 metres in the case of a building with a dual-pitched roof,
(ii) 2.5 metres in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the dwellinghouse, or
(iii) 3 metres in any other case”.
- The planning officer in his report set out an assessment of the proposed development against the requirements of the GPDO, including that the building had a hipped roof, would not be within 2m of the boundary of the curtilage of the dwellinghouse, and the overall height would not exceed 4m. The officer concluded the proposed development met all relevant requirements and on that basis planning permission was not required: in other words, it was deemed to be PD. The Council issued a decision notice to this effect.
Mr B complains to the Council
- Once the building work was completed, Mr B found the building to be very prominent when viewed from the windows of the habitable room at the rear of his bungalow home. He found that due to its proximity and height it has formed an unacceptably cramped and overbearing relationship with his property.
- Mr B contacted the Council with his concerns in January 2020, and made a formal complaint on 27 January.
- In his complaint, Mr B set out his view that the Council had erred in its decision that planning permission was not required, because the roof was not pitched and so the height should have been limited to 3m.
- Mr B did not receive a reply to his complaint until 23 June, after he had chased this several times.
- In its response the Council said that the roof was a crown roof hipped on four sides and its form was such that a 4m height complied with the requirements of the GPDO. The Council said its interpretation was backed up by a planning appeal decision (‘the Hillingdon case’) in which the Planning Inspector had explored the meaning of the phrase ‘dual-pitched roof’. The Council said the roof of the building which was the subject of that appeal was similar to the roof to the neighbour’s development, and the Inspector had concluded that the phrase ‘dual-pitched roof’ applies not only to a roof with a pitched roof on either side and gable ends (that is, where the roof has two slopes), but also where one of both of the ends are hipped (that is, where the roof has three or four slopes) and secondly, the phrase ‘dual-pitched roof’ does apply to an outbuilding with a mansard/crown type roof (that is, either a roof with shallow pitches in the centre and steeper pitches at the sides, or a roof with a flat area in the centre and pitches at the sides). The Council therefore considered it had determined the Certificate of Lawfulness application correctly.
- Mr B was dissatisfied with the Council’s response and wrote back on 30 June explaining why. He provided details of two planning appeal decisions, more recent than the one cited by the Council, which further considered the issue of roof type in the context of the relevant part of the GDPO.
- In the first example cited, the Planning Inspector said:
“The technical guidance suggests that the height limit on a ‘dual-pitched’ roof of 4m should also be applied to buildings that have ‘hipped’ roofs (slopes on all four sides). Clearly, the logic appears to be that a hipped roof structure is likely to have a less bulky appearance, because of its roof design, thereby reducing its visual or amenity impact, than say, a gabled roof of similar height due to its built form. The technical guidance does not make a similar concession to mansard or gambrel roof designs. In my opinion the extension of the interpretation of paragraph E. 1(d)(i) to hipped roofs cannot automatically be applied to any other form of roof design, due to the specific use of the words ‘dual-pitched’ in paragraph E.1(d)(i)”.
- In the second example cited, the Planning Inspector said:
“The appellant argues that a roof with two roof slopes joined by a flat-roofed element could still be defined as dual-pitched. However, I consider that it is implicit when the term is given its ordinary meaning in everyday language that it refers to a roof with two roof slopes which meet at an apex which forms a single ridge line. There is no definition of the term for purposes of the GPDO which indicates an alternative view. A roof which has side slopes which are divided by a flat roofed element is termed a crown roof, which is a different type of roof form. It is stretching the bounds of everyday language to an unacceptable extent to refer to it as a dual-pitched roof. The Government’s technical guidance for householders on the changes to Part 1 introduced in October 2008 is referred to in the Penmarric decision. On p42, it is explained that the 4m height limitation should also be applied to buildings which have hipped roofs. That these are singled out as a variant of “dual-pitched” indicates that what the legislators had in mind was roofs with roof slopes which meet at an apex. This does not include roof slopes with a flat roofed element. The Government could have explained at that juncture that a crown roof could also, in view of the fact that it has two roof slopes, be defined as dual-pitched but it did not do so. The underlying logic of the exception made for hipped roofs is that a higher height limit of 4m is intended to apply to roof forms with a less substantial roof mass. By contrast, a gambrel roof or a crown roof in likely to result in a greater presence of roof mass. The building would have a pronounced flat roofed element. The GPDO sets a lower height limit of 3m for such roofs…”.
- The Council issued its second stage response to Mr B’s complaint on 6 July. It said it acknowledged the appeal decisions Mr B had referenced in his correspondence, but neither the GPDO nor the technical guidance expressly refers to crown roofs, and the question of whether crown roofs should be subject to the 3m or 4m limit was one that could probably be argued either way. It noted that Inspector's decisions were not binding precedents, but they are material considerations to which the local planning authority should have regard when determining similar applications. It said it was the view of the Council's Solicitor that planning officers were right to take the Hillingdon case into consideration.
- We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
- It is not the Ombudsman’s role to interpret PD regulations or technical guidance, or to substitute his view for that of the Council’s officers. The Council was entitled to make the decision it made in respect of the application. It is correct to say that there are different appeal decisions supporting contrary positions, and that such appeal decisions are not binding, but are material considerations in the planning process.
- In this case, once it had been highlighted that there were appeal cases which aligned with Mr B’s view (and were therefore contrary to the Council’s decision in this case), those cases should have been considered, and that consideration documented, prior to the issue of the complaint response. However, the Council’s records do not evidence any consideration given to those decisions. Without that, the Council cannot evidence it has taken full account of the information Mr B had provided in his complaint and show why having done so it was not persuaded its decision remained correct. While internal legal advice was sought in July 2020, prior to the issue of the final response to Mr B’s complaint, there is no reference in the legal advice correspondence to the appeal decisions Mr B had highlighted. The failure to consider the information provided, or to document such consideration, was fault.
- There was further fault in the handling of Mr B’s complaint. There was significant delay at the first stage of the complaints procedure, for which the published timescale is 10 working days. In this case it took five months. The delay has been attributed to the impact of the Covid19 pandemic, high caseloads and alack of resources but this is not the full picture, and the Council should have kept Mr B informed about any delays.
Injustice to Mr B
- The failure to ensure all information was considered and that consideration documented means there is a lack of transparency in the Council’s decision-making which leads to a justified sense of dissatisfaction and uncertainty for Mr B about how the matter was dealt with.
- In addition, Mr B was put to avoidable time and trouble seeking to have his queries about the matter resolved.
- In recognition of the injustice identified above, I recommended that within four weeks of the date of the decision on this complaint, the Council:
- Issues Mr B with a formal written apology; and
- Pays him £350.
- The Council has agreed to my recommendations.
- I have completed my investigation on the basis set out above.
Investigator's decision on behalf of the Ombudsman