Dacorum Borough Council (18 011 165)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 21 Mar 2019

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s response to a planning application made by his neighbour in 2015 and a subsequent application to vary the permission in 2018. The Ombudsman finds the way the Council handled the issues Mr X complains about was not fault.

The complaint

  1. Mr X complains about the Council’s response to a planning application made by his neighbour in 2015 and a subsequent application to vary the permission in 2018. He says the Council:
    1. Failed to notify him of the 2015 planning application, even though he lives next door.
    2. Wrongly accepted the 2018 application to be a minor material amendment, when in fact it was a significant change. This meant the local town council could not object and so the matter did not go before the Council’s planning committee.
    3. The variation applied for in 2018 used plans that the Council had not previously approved and drawn by a different architect. This means it should have been a new full planning application rather than a variation.
  1. Mr X has concerns about the impact on the value and appearance of his own property as a result. His health has been affected by the stress of dealing with this issue and he has had to cancel holidays as a result. He also highlights the time and trouble taken complaining because of the Council’s approach.

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What I have investigated

  1. The law says the Ombudsman cannot investigate matters which happened more than 12 months ago without good reason. Part of Mr X’s complaint relates to planning permission granted in 2015. However, the basis for his complaint is he was unaware of the planning application at the time and as building work only started in recent months he complained as soon as he knew about it.
  2. In the circumstances, I am satisfied I have good reason to investigate Mr X’s complaint.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
  3. 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)

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How I considered this complaint

  1. I spoke with Mr X and considered what he had to say. I wrote to the Council, made enquiries and reviewed the evidence it sent in response.
  2. In investigating this complaint I have considered the following:
    • The law which imposes a duty on councils to consult on planning applications, found in Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 and Section 233 of the Local Government Act 1972.
    • The Council’s constitution.
    • Guidance published by the government about how to amend proposals that already have planning permission. This can be found online at https://www.gov.uk/guidance/flexible-options-for-planning-permissions.
  3. I shared my draft decision with Mr X and the Council and I invited them to comment on it. I carefully considered Mr X’s comments before issuing my final decision to both parties.

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What I found

  1. Mr X says the Council did not send him a consultation letter in 2015 when it granted planning permission for his next-door neighbour to build a large house extension. He says the law is clear the Council had to consult him and, if it had done so, he would have objected to the proposal. As it was, he says he did not receive any notification, was unaware of the proposal and so did not object. He says he only became aware of it in 2018 when his neighbour approached him about a party wall agreement, as building work was imminent.
  2. The Council says it sent Mr X a letter inviting him to comment on the proposal in October 2015. It has shown the Ombudsman screenshots from its computer system which show an officer drafted a letter to send to Mr X’s address, a copy of one of the letters created in that batch and proof that it was marked as ‘sent’. It also explained how letters move from its planning department to its post room.
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available and relevant evidence and base our findings on what we think was more likely to have happened.
  4. Mr X relies upon the fact he objected strongly to the 2018 application as evidence he would have objected in 2015. However, to go as far as finding fault here I must believe it is more likely than not the Council did not send the letter in the first place. This is because the law says a notice must be ‘served’ on ‘any adjoining owner or occupier’. The law says service is complete when a document is sent to someone by post at their address. The fact it did not arrive does not mean the Council’s actions were automatically fault.
  5. Considering the evidence available to me I believe, on balance, an officer generated the letters and sent them to be posted. What happened to them from there I cannot say.

Complaint (b)

  1. Mr X says the Council was wrong to accept the 2018 application as a ‘minor material amendment’. He says because of this the local town council was unable to object. An objection from the town council would have resulted in the application going before the Council’s planning committee.
  2. The Council says it accepted the application as a ‘minor material amendment’ because, “the proposal remained extremely similar to the previous approval”. It says the town council could still have objected but it chose not to.
  3. I consider the designation of planning applications is a matter of professional judgement for the Council’s planning officer. The government has issued guidance which says, “there is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved”. The Council was entitled to reach the view it did and although Mr X disagrees strongly with it that does not mean it was wrong.
  4. The actions of the town councils are outside the Ombudsman’s jurisdiction. I cannot investigate its actions or decisions. However, having reviewed events solely from the perspective of the Council’s actions, I cannot see any evidence it acted inappropriately or misled the town council.
  5. Its own constitution supports its position. If the town council had objected on the basis of a material planning consideration, the application would have gone before its planning committee. The officer’s report shows the town council did initially object but once it saw the revised plans it withdrew its objection. The reasons for that are outside the remit of this investigation. In the absence of an objection from the town council there was no reason why planning officers could not make a decision using their delegated powers.

Complaint (c)

  1. Mr X complains the plans submitted with the 2018 amendment application were from a different architect to those submitted when the Council granted full planning permission in 2015. He believes this means the 2018 application should have been a full planning application instead.
  2. The Council told the Ombudsman the application submitted in 2018 was a standalone application in its own right. There was no need to provide copies of the original plans as it would create a separate planning permission if approved.
  3. It says the applicant submitted a set of three new plans for consideration with the minor material amendment application. Then later on, before a decision had been taken, the applicant made changes to all three plans and sent in revised versions. Both sets are still visible on the Council’s website, including some labelled as ‘superseded plans’, but it says only the latest ones submitted form part of the application.
  4. Having considered the position of both parties it seems to me confusion has arisen here because of how the Council has labelled the plans on its website. This is in the context of the type of application – an amendment to a previously granted permission – and the fact the applicant then changed the plans again before the decision. The plans submitted in late March and early April were superseded by those submitted later in April. It is not the case that the plans submitted with the application superseded those approved in 2015, as they created a separate planning permission instead.
  5. In the circumstances, I am satisfied it was not fault for the Council to accept the application as valid using the plans initially submitted with it. There was no need to submit plans from the original architects in support of the 2018 application.

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Final decision

  1. There is no evidence of fault by the Council in how it dealt with the matters Mr X has complained about.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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