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Lewes District Council (20 007 183)

Category : Planning > Other

Decision : Upheld

Decision date : 11 Jun 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complained about the Council’s failure to respond to a prior notification application within the time limit set out in regulations. There was fault in the way the Council made its planning decisions which it has agreed to remedy.

The complaint

  1. Mr and Mrs X complained about the Council’s failure to respond to a prior notification permitted development application within the time limit set out in regulations.
  2. Mr and Mrs X said that because of the Council’s failure to act, they now have a residential building close to their boundary which affects their privacy.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    1. access to the highway;
    2. protection of ecological and heritage assets; and
    3. the impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    1. views from a property;
    2. the impact of development on property value; and
    3. private rights and interests in land.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  5. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan. If windows are at an angle to each other, the separation distance may be significantly reduced.
  6. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
  7. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications (PNA).
  8. For PNAs relating to the change of use of office premises to residential use, the developer must apply to the Council to decide whether approval will be required for:
    1. transport and highways impacts;
    2. contamination risks on site; and
    3. flood risk on site.
  9. Once a PNA has been submitted, development should not begin until:
    1. the Council confirms in writing that prior approval is not required;
    2. the Council confirms that prior approval is given; or
    3. there is no response 56 days after the Council receives the PNA.
  10. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.

What happened

  1. Mr and Mrs X live next to a site previously used for commercial purposes. The Council received a PNA to change the use from offices to residential units. The Council did not respond to the PNA until after the 56-day limit expired. Its late response said that prior approval was not required.
  2. The developer submitted a full planning application to change the use of the building from offices and light industrial to residential use. The application was for a smaller number of residential units.
  3. The Council considered the application. The planning case officer wrote a report which included:
    1. a description of the proposal and site;
    2. comments from the parish council, a neighbour and other consultees;
    3. a summary of planning policy and guidance considered relevant;
    4. an appraisal of the main planning considerations, including land drainage, provision of electric vehicle charging points and landscaping; and
    5. the officer’s recommendation to approve the application, subject to planning conditions.
  4. The case officer’s report does not include any details of how the change of use of the building might affect the amenities of neighbouring properties.
  5. The report and application were considered by another planning officer, who granted permission using delegated powers.
  6. Later, following a complaint from Mr and Mrs X and others, the Council accepted it was at fault for failing to respond to the PNA within the time limit. The Council said that it has already implemented changes to ensure it processes this type of application properly.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
  2. The Council intended to respond to the PNA but did not do so within the 56-day time limit. This is fault.
  3. The developer submitted a planning application for the change of use of the building from office and light industrial to residential use. In the case officer’s report, there was no analysis of how the change of use might affect the amenities of existing residents. This application was approved by an officer using delegated powers.
  4. We accept that delegated reports contain less detail than a committee report, as their target audience is a professional planner, not a member of the planning committee. However, delegated reports still need to demonstrate that core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated.
  5. The purpose of the 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 a council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
  6. There are existing residential properties, including Mr and Mrs X’s home, very close to the application site. The nature and use of the building will change and the plans show wider and an increased numbers of windows, some of which overlook Mr and Mrs X’s garden and the back of their house, though at an angle.
  7. I would expect the case officer’s report to include some analysis of these issues. In my view, the impact the change of use might have had on existing residents is a key issue and the absence of evidence of consideration is fault.
  8. Whenever we find fault, we must determine whether it caused an injustice to the individual complainant. This means that we must first decide whether, but for the fault, the outcome would have been different.
  9. I cannot say it is more likely than not that but for the faults I have found that the outcome would have been different. My reasons are as follows:
    1. There was an existing building which would have had some impact on Mr and Mrs X’s home;
    2. Mr and Mrs X have a high hedge that gives some privacy to the side and rear of their home;
    3. The new dwelling units are at an angle to the rear of Mr and Mrs X’s home.
  10. However, I do understand why Mr and Mrs X feel disappointed that the Council missed an opportunity to control the development. Because of this, I made recommendations for a remedy.

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Agreed action

  1. The Council agreed to:
    1. apologise to Mr and Mrs X for the faults I have found. It will carry out this part of the remedy within 4 weeks of this final decision;
    2. review its processes and working practices and report details of any changes it makes to us. It will carry out this part of the remedy within 12 weeks of this decision, unless an extension is agreed in writing.

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Final decision

  1. I found fault causing injustice to Mr and Mrs X. I ended my investigation as the Council accepted my findings and recommendations.

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Investigator's decision on behalf of the Ombudsman

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