The Ombudsman's final decision:
Summary: The planning manager’s decision not to place a condition on a planning application was made without fault. He considered the views of the planning officer, Mr S and ward Councillor before deciding there was no evidence to support its use. The manager did not agree to a late call in of the planning application, as he had already reached a view that the Council could not defend the use of the planning condition at appeal.
- The complainant, whom I shall refer to as Mr S, complains the Council did not put a restrictive condition on a neighbour’s planning application that a planning officer had said would be applied.
- Mr S worries the house might become as a House of Multiple Occupation (HMO) in the future.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 read the papers put in by Mr S.
- I considered the Council’s comments about the complaint and the supporting documents it provided.
- I gave the Council and Mr S the opportunity to comment on my draft decision.
What I found
- Mr S’s neighbour put in a planning application for a single storey side and rear extension and the conversion of a garage into a habitable room in October 2016. The Council sent Mr S a letter telling him about the application.
- The planning officer visited the site on 7 November. He noted no signs of subdivision of the house.
- Mr S wrote an email with his objections to the planning application. He had concerns the house would become a HMO. The planning manager replied there was no suggestion in the application the property would become a HMO.
- The ward Councillor emailed the planning manager to represent Mr S’s concerns that the neighbours house could be used as a HMO. The ward Councillor did not ask for the planning application to be ‘called in’, which is when a Councillor asks for Planning Committee to discuss the application. The Council has said the Councillor sent the email on 17 November, when the last date for calling in a planning application was 15 November.
- The planning officer said that a HMO for 6 people or fewer would not need planning permission. In an email on 21 November the ward Councillor asked that a condition preventing the use of the house as a HMO was put on any planning permission given.
- The planning officer emailed the ward Councillor on 21 November 2016. The planning officer said ‘bearing in mind the concerns raised, I will support a condition preventing subdivision or use in multiple occupation, and hope that my team leader agrees with this (this is a relatively common condition in these situations)’. The Councillor replied ‘should there be any issues and it looks as if your recommendations for restrictions are not supported please let me know ahead of time so I can raise my concerns’.
- The Councillor emailed on 6 December 2016 to ask for the planning application to be ‘called in’. The planning officer emailed the Councillor. He said the planning application was not for a HMO and there was nothing to suggest this was the case. So, a condition preventing use as a HMO would not be correct and the neighbour could challenge it at appeal. The Council granted planning permission on 21 December 2016.
- There was no evidence on the planning application that Mr S’s neighbour’s house will be a HMO. A HMO with 6 or less people would not need planning consent for change of use.
- The Council processed the planning application in the usual way, including consulting the neighbours.
- Mr S complains that a planning officer told a Councillor the Council could place a planning condition on the application, restricting its use, but the planning manager decided not to put the condition on.
- The planning officer clearly told the Councillor that he supported the planning condition, but it would depend on whether the team leader agreed. So, I do not consider the planning officer promised the condition, he told the Councillor the team leader/planning manager may not support it.
- The Councillor asked the planning officer to update him if the manager decided not to condition the planning application. I am not sure if this happened or not, but the Councillor knew the Council did not intend to use the condition before it decided the application. In response to finding out, the Councillor asked for the planning application to be ‘called in’.
- The request from the Councillor to be called in was outside the time allowed. However, the planning manager should still consider whether it was appropriate or not. In this case the planning manager thought there was nothing on the planning application to indicate the house was to be a HMO. So, it would be likely the applicant could successfully challenge the planning condition on appeal. So, he felt it was not appropriate to call in the planning application as it would not be reasonable (or legally defensible) to put the requested planning condition on the application.
- I can see no evidence of fault in the Council’s consideration of the application. The planning officer listened to Mr S’s and the ward Councillor’s views. He then suggested putting a planning condition on the application, but told them that it would need the manager’s agreement.
- The planning manager looked at the application and there was no suggestion the house would become a HMO. So, he decided the proposed planning condition was unreasonable. This is a decision he was entitled to make, although I accept Mr S disagrees with it.
- The ward Councillor called in the planning application after the deadline had passed so it was not fault for the Council not to take the planning application to Committee. Especially as the only reason given for calling the application in was to place a planning condition the manager had already explained was not reasonable. So, I can see no fault in the planning manager’s decision to decide the planning application under delegated powers.
- I have completed my investigation of this complaint. I have found no fault in the Council’s consideration of the planning application and this complaint is not upheld.
Investigator's decision on behalf of the Ombudsman