Summary: Mr X complains about the Council’s handling of his neighbour’s application for prior approval of an extension. There was fault with the Council’s handling of contacts from Mr X. But this fault did not cause Mr X significant injustice that warrants further pursuit of the complaint by the Ombudsman.

The complaint

1. I refer to the complainant here as Mr X. Mr X complains about the Council’s handling of his neighbour’s application for prior approval of an extension. Mr X says:
• The Council did not take account of relevant planning factors when it approved the application;
• The Council’s response to his application for a building preservation notice (BPN) was inadequate and it failed to respond to his request for a review of its decision;
• The Council did not respond properly to his concerns about unsafe building practices;
• The Council’s complaint handling was poor involving inadequate or delayed responses and failures to respond to some issues; and
• The planning and environmental health departments have not responded to his recent service requests regarding other matters.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6))

3. 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

4. I considered the complaint and background information provided by Mr X and the Council. I sent an initial decision statement to Mr X and the Council. I considered Mr X’s comments on it.

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What I found

5. The Council received a prior approval application for an extension at a property adjoining Mr X’s home. A prior approval application is a request to a local planning authority to determine whether planning permission is required for a development or not.
6. The Council notified Mr X of the application. Mr X then submitted representations against the application. For reasons of brevity and anonymity, I will not set out Mr X’s representations here. They are known to Mr X and the Council.
7. Mr X’s comments were the only representations the Council received. The case officer was required to consider the impact of the proposal on neighbouring amenity. The case officer considered only Mr X’s home would be affected by the proposal.
8. The case officer explained the proposal complied the permitted development requirements in terms of its height, width, and distance from the common boundary with Mr X’s home.
9. The case officer then set out his view on the proposal’s impact on Mr X’s home in terms of loss of light, outlook, overshadowing and visual intrusion. The officer concluded there would not be any significant or material harm to the amenity of Mr X’s home from the proposal.
10. Before the Council decided the prior approval application, Mr X turned his attention to his rear boundary wall that partly adjoins the boundary with the neighbouring property in question. Mr X considered the wall could be damaged by his neighbour’s development plans. He sent an email to the Council’s planning manager in which he asked about the application process for a Building Preservation Notice (BPN). The planning manager sent a reply which essentially referred Mr X to Historic England for advice on the process. This was the wrong advice as the Council itself issues BPNs and so the officer should have initiated an investigation on whether the wall could be the subject of a BPN.
11. Mr X subsequently contacted Historic England which then referred him back to the Council. He then asked the Council for a BPN.
12. The Council decided not to serve a BPN. Its decision letter to Mr X set out its reasons for not serving a BPN. It set out two tests it had to consider including whether the wall is of special or historical character and whether the wall is under threat. It said the wall did not offer any historic or architectural value and the wall was not under threat of removal as it is owned by Mr X.
13. Mr X disputes that decision. He says there were multiple inaccuracies in the decision letter. For instance, the Council’s letter states the wall was likely to have been built around the same time as Mr X’s home whereas Mr X says the wall was built around 20 years earlier. The letter also refers to part of the wall having been replaced by a close boarded fence whereas Mr X says the wall is the original length. The Council concluded the wall was not under threat whereas Mr X maintains his neighbour’s development is a risk to the wall.
14. These two core matters led to various contacts between Mr X and the Council’s officers. Officers failed to respond to some of Mr X’s contacts or there was a delayed response at other times. It appears some of Mr X’s service requests were not acted upon including a request for a review of the decision on the BPN.

Finding

The Prior Approval Application

15. When considering planning applications, planning authorities are required to have regard to all material considerations. What amounts to a material consideration is a question of law. That is for the courts to adjudicate upon. The weight to be given to such material considerations – and the part any particular material consideration should play in a decision-making process – is a question of judgement and is a matter entirely for the decision-maker. The local planning authority is the decision-maker.
16. I have read the planning officer’s report. I am satisfied the report set out the material considerations that applied to the application and provided reasoned justification for the judgement reached by the officer. I am satisfied the Council took account of the proposal’s impact on Mr X’s amenity. I do not find fault by the Council in this matter.
17. While Mr X clearly disagrees with the officer’s judgement, it is not for the Ombudsman to substitute his judgement for that of the Council’s officers in the absence of fault in the decision making process.

The application for a Building Preservation Notice

18. I do not find fault with the Council’s decision on this matter. Bearing in mind the Ombudsman is not a planning appeal body, our approach to complaints about planning decisions involves examining whether the council concerned took account of material considerations. Here, the Council set out the two fold statutory test that applied to the application. It explained its decision in light of the test. That is not fault.
19. While Mr X says there were inaccuracies in the Council’s decision letter, I do not find there were inaccuracies or that any inaccuracy if established as such was significant or material.
20. For instance whether the wall was built 20 years before Mr X’s home is not significant. The officer’s statement on the age of the wall was an estimate and was not intended to be indisputable.
21. The photograph the Council provided of the wall in the decision letter shows a close boarded fence adjoining the wall. It was not unreasonable for the officer to conclude the fence was built to complete the boundary and possibly in replacement of the wall. That Mr X says the wall is of the original length by contrast does not mean there is an inaccuracy.
22. These alleged inaccuracies do not affect the substantive tests the Council had to consider. It did not find the wall had a special or historic character. It also did not find the wall was under threat because of the neighbour’s proposed development. I do not find fault with the Council’s decision.

The Council’s handling of contacts from Mr X

23. The Council accepts it did not respond fully or clearly to some of the issues raised by Mr X. This was partly because many issues had become mixed up when various officers were responding to Mr X.
24. The Council acknowledged the planning manager should not have told Mr X to contact Historic England for assistance when he initially enquired about the BPN process.
25. I note the Council’s apologies to Mr X. I consider the apologies presented the appropriate remedy for the understandable frustration Mr X experienced. But as I have not found fault by the Council on the core issues of the complaint, I do not find Mr X’s dissatisfaction with the Council’s handling of his contacts now warrants further pursuit by, or a remedy from, the Ombudsman.
26. The Council should have responded to Mr X’s request for a review of its decision on the BPN. I am not aware of any formal appeal procedure and so I do not find Mr X suffered significant injustice because of the failure to respond to his request.
27. If there are outstanding service requests that were missed by the Council, it can now act on them should Mr X make them again.

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Final decision

28. There was fault by the Council. The complaint was closed because the identified fault did not cause Mr X significant injustice.

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Investigator's decision on behalf of the Ombudsman