Summary: Mrs X complains about the Council’s decision to grant planning permission for her neighbour’s development. The Council is at fault as councillors wrongly visited Mrs X’s neighbour when carrying out their own site visit and there is doubt as to whether a planning officer and planning committee had sufficient information to understand the relationship between Mrs X’s property and the development site. There is also fault in how the Council investigated Mrs X’s complaint against two councillors. The Council has agreed to remedy the injustice to Mrs X as recommended.

The complaint

1. Mrs X has complained about the Council’s decision to approve her neighbour’s retrospective planning application for an outbuilding. In particular Mrs X complains that:
1. Councillors A and B gave the appearance of bias in how they considered the application as they visited Mrs X’s neighbour’s property and did not declare that they knew the applicant and had interactions with her when considering the application at the planning committee;
2. The Council reversed its decision to take enforcement action against her neighbour’s development. Mrs X considers this was due to improper interference by Councillors A and B;
3. Officers wrongly relied on a previous application granted at the site which had expired when recommending approval for the application. Ms X also considered the previous application to be flawed as an officer had said it should not have been granted and officers relied on an incorrect block plan, did not visit Mrs X’s property and took into account irrelevant factors.
4. Officers did not follow the Council’s planning policies when recommending approval for the application as they did not carry out the aspect value test set out in the Council’s supplementary planning guidance. As a result the decision to grant planning permission for her neighbour’s development is flawed.
5. The Council did not give proper consideration to Mrs X’s complaint against councillors A and B.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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What I have investigated

5. Mrs X has raised a number of issues, including how the Council carried out its enforcement investigation. I have focussed my investigation into how the Council made its decision to grant planning permission for the development as this is the issue which could cause significant injustice to Mrs X.

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How I considered this complaint

6. I have:
• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Obtained further information by interviewing officer D;
• Invited Mrs X and the Council to comment on the draft decision.

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What I found

7. The Local Government Association and Planning Advisory Service have published guidance for officers and councillors involved in planning. This includes guidance on councillors conducting site visits when considering planning applications.
8. It states:

“Once a councillor becomes aware of the proposal they may be tempted to visit the site alone. In such a situation, a councillor is only entitled to view the site from public vantage points and they have no right to enter private property. While a councillor might be invited to enter the site by the owner, it is not good practice to do so on their own, as this can lead to the perception that the councillor is no longer impartial.”

9. The Council’s planning protocol provides that individual members should carry out site visits from public vantage points but these should be unannounced and they should not arrange to meet applicants or agents for the purpose of a site visit.
10. The guidance also states:

“If a councillor considers they have personal (non-pecuniary) interest he or she should disclose that interest but then may speak and vote on that particular item”

And

“Members have a legal duty to avoid bias or appearance of bias….Bias has been defined as a tendency towards one side because of an irrelevant factor such as a close relationship. For example, determining a planning application in relation to an application made by your brother. The legal test for bias is “whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility the tribunal was biased”. If this test is met, the member should not take part in the decision.”

11. The Council has a procedure for dealing with complaints that a councillor has breached the members code of conduct. It provides that in order to establish a preliminary view of the circumstances of the complaint and whether there may be a course of action which could be taken to resolve the issues promptly without the need for formal action, the Council may consult or meet with other relevant persons. The Council will then consult with the independent person and decide whether the complaint merits formal investigation.

What happened

Background

12. The Council granted planning permission for Mrs X’s neighbour, Ms Y, to build an outbuilding. Some years later Ms Y started to build the outbuilding but after the planning permission had expired. The outbuilding constructed is located closer to the boundary with Mrs X’s property than the previously approved building and has an amended design to include roof lights.
13. Mrs X contacted the Council to report a breach of planning control. Ms Y submitted an application for planning permission for the outbuilding. The Council recommend the application be approved. Mrs X contacted her ward councillor who requested the application be called in to be determined by the planning committee rather than by officer’s delegated decision.
14. The planning application was scheduled for consideration in November 2016 by the planning committee but was withdrawn by the Council. I refer to these events by way of background and they do not form part of my investigation.

Planning Committee - April 2017

15. Ms Y’s application was then scheduled to be determined by the planning committee in April 2017. Officers recommended the development be approved.
16. Prior to the meeting councillor A, the chair of the planning committee, carried out her own site visit to all the applications scheduled for the committee. This included Ms Y’s property. In a statement councillor A has said it was her normal practice to carry out a site visit with the vice chair in order to see for herself what she is being asked to decide. On this occasion the vice chair was not available so councillor B accompanied councillor A.
17. Councillor A said she and councillor B could not view the outbuilding from a public vantage point so they knocked on Ms Y’s door and asked to see the development. Ms Y was at home so councillors A and B entered the property and viewed the outbuilding. Both councillor A and B have said that they were only at the property for a short time and did not give any view on the application.
18. On the day of the planning committee a senior officer, officer C, withdrew the application. This is because he had concerns about the proposal and wanted to view the site himself. Officer C notified councillors of his decision to withdraw the application by email.
19. Ms Y was not aware that the Council had withdrawn the application until she attended the meeting. She sent an email to councillor A complaining about officer C’s decision to withdraw her application from the agenda. Ms Y also copied the email to councillor B.

Officer C’s consideration

20. Officer C visited the site. He considered the outbuilding to have an overbearing impact on Mrs X’s property due to the height of the building and proximity to Mrs X’s garden. Officer C notified both Mrs X and Ms Y that the application would be refused and he would instruct enforcement officers to issue an enforcement notice. Officer C copied his email to Ms Y to councillor A.
21. Councillor A contacted officer C by telephone to raise her concerns about the process. In her statement councillor A said she was concerned that the application had been removed from the agenda after it had been published and on the day of the committee. Councillor A asked that the application be determined by the planning committee on 22 June 2017 as it had been withdrawn from two previous agendas.
22. Officer C did not pursue the refusal of the application and enforcement action. In a statement officer C has said that he changed his mind about the development having an unacceptable impact on Mrs X’s property. Officer C has said that at the time of his site visit he was not fully aware of the planning history of the site and he had also not examined in detail the previous planning permission. Officer C said that once he had done so he considered the development did not differ so significantly from what had previously been approved to warrant enforcement action. Mrs X disputes officer C was not fully aware of the previous planning permission when he reached his view that the development was unacceptable.
23. On 31 May 2017 officer C asked a planning officer, officer D, to prepare a report for the planning committee setting out his assessment of the application. Officer C said a report had been prepared previously but needed ‘tweaking’.

Officer D’s assessment of the planning application

24. Officer D assessed the application and prepared a report for committee setting out his assessment. In the report he set out the differences between the previously approved scheme and the outbuilding constructed. Officer D stated that the principle for constructing an outbuilding on the site had been established with the previous application. So the key consideration was whether the changes to the outbuilding as constructed were acceptable. Officer D noted the outbuilding would stand closer to Mrs X’s boundary but he considered the impact would not be more harmful than the previous scheme. He acknowledged the outbuilding would cause some loss of sunlight to Mrs X’s property but it would not be more harmful than that caused by the previous application which was also in close proximity to Mrs X’s boundary. Officer D concluded that overall the outbuilding would not result in material harm to residential amenity.
25. Officer D did not carry out a site visit. When interviewed officer D said was able to assess the relationship with Mrs X’s property from the plans and photographs. However, the Council cannot say which photographs officer D considered. Mrs X has demonstrated that the block plan showing the development site in relation to her property is inaccurate. This is because it does not show her property has been extended.
26. Mrs X considers officer D should have used the aspect value test set out in the Council’s supplementary planning guidance when assessing the application. She also considers the Council was to wrong to mainly assess the application against the previous application.

Planning Committee – June 2017

27. Mrs X submitted additional objections to the planning application which the Council circulated to the planning committee on a supplementary agenda. Mrs X could not attend so representatives attended and spoke on her behalf. Officers presented the application and showed photographs. However, the Council cannot demonstrate what photographs were shown and whether they showed the relationship between Mrs X’s property and the development. The Council has said the committee had the benefit of additional information from Mrs X regarding her objections.
28. As I understand it councillors A and B spoke in favour of the application being granted. The planning committee granted planning permission for Ms Y’s outbuilding.
29. Mrs X complained that councillors A and B had breached the councillors code of conduct as they did not declare they knew the applicant and had visited her property which gave the appearance of bias. They also did not declare they had visited the site and met Ms Y. Mrs X considers councillors A and B should not have participated in the consideration of the application to avoid the appearance of bias.
30. In her statement, councillor A said she that both she and Ms Y were members of the same political party but had not met her before visiting her property on her site visit. Councillor B has said he was acquainted with Ms Y, as he was with many people, but she was not a friend, nor did they socialise. They both considered it was not necessary to declare a non-pecuniary interest. The councillors also said in their statements that they did not consider themselves to be biased towards Ms Y. Councillor A said she raised Mrs X’s concern about bias at the committee.
31. Officer E, a senior officer, considered Mrs X’s complaint to decide if it should be referred for further investigation. In doing so, he consulted an independent person. Officer E advised Mrs X they had decided her complaint did not warrant further investigation. One reason for his decision was that councillors may knock on an applicant’s door and ask to visit the development site if it is not visible from a public vantage point. Mrs X considers officer E’s consideration was flawed as he did not refer additional emails between Ms Y, Councillors A and B and officer C to the independent person when making the decision. Mrs X has also said officer E did not tell the independent person about telephone conversations between Ms Y and councillors A, B and officer C. Mrs X also considers the report contained factual errors.

My assessment

32. The key issue is whether there is evidence of fault by the Council which could call into question the Council’s decision to grant planning permission for Ms Y’s outbuilding.

Officer C’s role

33. Officer C was at fault in notifying Mrs X that he would seek enforcement action for the removal of Ms Y’s outbuilding as he had not considered all the facts before doing so. Officer C said he had not considered the previous planning application when he notified Mrs X. Mrs X disputes this as officer C refers to the building not being in accordance with the planning permission in an email to Ms Y. But the crucial point here is the Council had not made a formal decision to refuse Ms Y’s planning application as it had not issued a decision notice to Ms Y. So, while officer C was at fault for notifying Mrs X that he would seek enforcement action, the Council could not be bound by officer C’s expressed view to Mrs X that the application was unacceptable. It was open to officer C to change his mind.

Assessment by officer D

34. The information provided by officer D when interviewed and in the committee report show he made his own assessment of the application and considered the impact on Mrs X’s property. However, I cannot be satisfied that officer D had sufficient information to understand the relationship between Mrs X’s property and the outbuilding. Officer D did not carry out a site visit. The Council cannot demonstrate which photographs officer D considered when assessing the application and whether the photographs showed the relationship between the application site and Mrs X’s property. Mrs X has also demonstrated that the block plan does not accurately show the extent of her property. So, this casts doubt on whether officer D’s assessment of the impact on Mrs X’s amenity and recommendation to approve the application were sound.
35. Mrs X has raised a number of concerns about how officer D assessed the planning application including the reliance on the previous planning permission and the use of the aspect value test. As I say above, I consider there is doubt as to the soundness of officer D’s assessment of the impact on Mrs X’s amenity so further investigation of these matters will not achieve anything more.

Planning Committee – June 2017

36. The Council cannot demonstrate what photographs were shown at the planning committee. I note the Council’s position that the committee had the benefit of additional information from Mrs X. But councillors would give considerable weight to the recommendation of the professional planning officer. As I say above, there has to be doubt about the soundness of officer D’s assessment. So the fact Mrs X provided additional information does not mean the committee had sufficient information to understand the relationship between her property and the development site.

Appearance of bias

37. Councillors can carry out their own site visits. But the guidance set out in probity in planning is clear that these should be from public vantage points and councillors should not attend an applicant’s property on their own. The Council’s own constitution provides that councillors should view the site from a public vantage point and not arrange to visit a site. I am mindful that councillors A and B did not arrange to specifically visit Ms Y’s property and the site was not visible from public vantage points. But the councillors visit to Ms Y’s property was not in keeping with the guidance in probity in planning and the Council’s planning constitution and their visit could give the appearance of bias in their consideration of the application. This is fault.
38. Councillors A and B have explained their knowledge of Ms Y and why they did not declare a non pecuniary interest at the meeting of the planning committee and why they did not consider their participation could give the appearance of bias. Councillor A also raised Mrs X’s concern about bias at the meeting which shows she considered the issue. As the councillors have explained their reasons why they did not declare an interest and why they considered their actions would not appear biased, there is no evidence of fault. So I cannot question the merits of their decision not to declare a personal interest or their decision that their participation would give an appearance of bias.
39. Mrs X considers councillor A should not have directed that the application be considered at the June 2017 planning committee and questions whether her local councillor’s call in still applied. This does not cause significant injustice to Mrs X to warrant pursuing further. The injustice to Mrs X arises from the Council’s failure to show it understood the relationship between Mrs X’s property and the development site.

Officer E’s investigation

40. On balance, I consider the Council did not properly consider whether it should refer Mrs X’s complaint for further investigation. Officer E concluded that councillors can visit the development site if it is not visible from a public vantage point. This conclusion is at odds with the guidance set out in probity in planning and the Council’s planning protocol.
41. I note the Council’s position that it considered the relevant question was whether two or more councillors entering the site could breach the guidance and give rise to the appearance of bias. Officer E concluded that it did not. But it is equally inappropriate for two or more councillors to visit an application site unless on an official committee site visit with officers present. Councillors, in any number, entering the application site could give rise to the perception those councillors are not impartial. Councillors are meeting with the applicant in an unofficial capacity so the visit is not transparent and they risk being seen to being influenced by the applicant.
42. Officer E did not address himself to the circumstances of the complaint. The site visit was carried out but by two councillors who were members of the same political party as the applicant and councillor B was acquainted with the applicant. There has to be doubt as to whether officer E and the independent person would have made the same decision if they had addressed themselves to the circumstances of the complaint.
43. The Council has acknowledged that the independent person was not aware of all of the relevant emails. Mrs X has also said the independent person was also not aware of telephone calls between Ms Y, councillors A and B and officer C. This is not fault. In accordance with its procedures, the Council was making a decision as to whether it should refer the complaint for full investigation. It was not carrying out a full investigation at this time.

Injustice to Mrs X and proposed remedy

44. Mrs X’s trust in the Council’s decision making has been undermined by the inappropriate site visit by councillors A and B, the intervention of officer C, the inaccurate block plan, the doubts about the soundness of officer D’s assessment and the lack of clarity as to whether the committee had sufficient information to understand the relationship between Mrs X’s property and the development site. As a result of the faults, Mrs X cannot be certain that the Council properly considered the impact on her amenity and whether it should have granted the planning application.
45. In order to remedy this injustice the Council should commission an independent assessment of the planning application and provide a copy of the assessment to Mrs X. If the independent assessment considers the planning application should have been refused then the Council should consider an appropriate remedy for Mrs X. If the Council and Mrs X cannot agree on what that remedy should be then Mrs X can make a further complaint to the Ombudsman.
46. The independent assessment can be carried out by a planning officer from another council. I note Mrs X’s concern that an assessment commissioned by the Council would not be impartial so she considers it would be more appropriate for the Ombudsman to commission an assessment. The Ombudsman will only commission such an assessment in exceptional circumstances as the onus is on the Council to take action to remedy injustice caused by its faults. There are no good reasons for us to take this action. I am satisfied a planning officer from another council will be guided by their professional standards and integrity so will be able to carry out an independent assessment of the planning application.
47. The faults in officer E’s consideration of Mrs X’s complaint about the councillors will have undermined her confidence in the decision. The Council should commission an independent assessment to decide if it should refer the complaint against councillor A for an investigation into whether she breached the code of conduct. I do not consider it is proportionate or in the public interest to recommend an independent assessment of the complaint against councillor B as he is no longer a serving councillor. The issues raised by Mrs X’s complaints against both councillors are similar so will be considered in the assessment of Mrs X’s complaint against councillor A. The Council would also be limited in what action it could take against councillor B, should Mrs X’s complaint proceed to full investigation and be upheld, as he is no longer a serving councillor.

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Agreed action

48. That the Council:
1. Sends a written apology to Mrs X and makes a payment of £200 to her to acknowledge the faults by the Council have undermined her trust in the Council’s decision making on the planning application. The Council should carry out this recommendation within one month of my final decision.
2. Commissions an independent assessment of the planning application and provide a copy of the assessment to Mrs X and the Ombudsman. If the assessment considers the planning application should have been refused the Council should consider an appropriate remedy for Mrs X’s injustice. The Council should carry out this recommendation within three months of my final decision. If it is unable to commission a planning officer from another authority to carry out the assessment within three months, it should arrange for the assessment to be carried out by a planning consultant.
3. Ensures members of the planning committee are aware that they should limit their own site visits to public vantage points and not visit an applicant’s property to avoid the appearance of bias. This can be done by training or any other means the Council considers to be appropriate. The Council should provide evidence to the Ombudsman to show how it has implemented this recommendation. The Council should carry out this recommendation within two months of my final decision.
4. Commissions an independent assessment of Mrs X’s complaint against councillor A in light of my findings to decide if it should refer the complaint for further investigation. The Council should provide a full explanation of its decision to Mrs X and the Ombudsman. The Council should carry out this action within three months of my final decision.

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Final decision

49. The Council is at fault as councillors wrongly visited Mrs X’s neighbour when carrying out their own site visit and there is doubt as to whether a planning officer and planning committee had sufficient information to understand the relationship between Mrs X’s property and the development site. There was also fault in how the Council investigated Mrs X’s complaint against two councillors. The Council has agreed to remedy the injustice to Mrs X as recommended. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

50. I have not investigated how the Council considered and approved Ms Y’s earlier planning application for an outbuilding. This is because the application was approved several years ago so I could not reliably investigate the matter. It was also open to Mrs X to have made a complaint to us about this matter at the time the application was granted.

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Investigator's decision on behalf of the Ombudsman