Barnsley Metropolitan Borough Council (18 012 508)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 25 Mar 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly consider his neighbour’s planning application. The Council took too long to deal with Mr X’s complaint, but this did not cause a significant injustice to Mr and Mrs X as it did not affect the outcome.

The complaint

  1. Mr X complains the Council failed to inform him about his neighbour’s plan to move a detached garage nearer to his house. This occurred when his neighbour made changes to a planning application. He also complained the Council failed to properly consider the impact the garage would have on his amenity.

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The Ombudsman’s role and powers

  1. 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)
  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 spoke to Mr X and considered the complaint he made. I obtained key planning documents from the Council’s website and asked it for more information. I considered the information I received and the council’s response to the complaint.
  2. I sent a draft decision to Mr X and to the Council to enable them to comment. I received no comments.

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What I found

  1. In June 2014, the Council approved Mr X’s neighbour’s planning application to build a new bungalow with a detached garage. (I will refer to Mr X’s neighbour as Mr Y in this statement). The development was on part of Mr Y’s existing garden, which adjoined Mr X’s plot. The Council sent notification letters to publicise the application.
  2. The approved plans showed the nearest element to Mr X was a detached garage, 4.8m from his boundary. They showed the ridge height of the garage would be 5.6m high. The plans also showed a second garage for Mr Y’s own house. This was smaller and further from Mr X’s property. The case officer’s report for the application noted the garages would be “set away from neighbouring properties and, given their size and height, would not significantly increase overshadowing or result in overbearing features”.
  3. In 2015 Mr Y put in a fresh planning application to change the plans. The Council publicised the application. It described it as an application to reduce the footprint of the development and alter the elevations of the approved plans.
  4. The case officer’s report considered the changes to the bungalow. They found these acceptable. The case officer also noted a change to the garage. The officer stated it was the same design as the previous approval, just re-positioned. When considering Mr X’s amenity the case officer stated, “it would be closer to [the boundary] than the previous garage, however, it would be set away from neighbouring properties and, given its size and height, would not significantly increase overshadowing or result in an overbearing feature.”
  5. The case officer concluded the application was not significantly different to the previous proposals and approved it in October 2015.
  6. In 2017, Mr Y submitted a further planning application to change window and door details, the roof pitch, and again to alter the position of the detached garage.
  7. The 2017 plans showed the ridge height of the garage was 5.7m high. It was in much the same position as the 2015 approved plan, but it was rotated 90 degrees. The Council considered the application to be a ‘non-material amendment’ but sent notification letters to neighbours.
  8. The Council approved the application and amendments in June 2017.
  9. Although they had received notification letters, Mr and Mrs X say they were only alerted to the change to the detached garage when building work began. Mr X told the Council in 2014 he had no objections to the proposals so he did not comment. In 2015, they received notification of the application to make changes. However, the Council’s description of the application only referred to alterations to the house, which they were not concerned about, so they had not looked at the plans. They stated they were not specifically told that Mr Y was proposing changes to the location of the garage.
  10. Mr and Mrs X also received a notification letter about Mr Y’s application in 2017 and they discussed it with Mr Y. But, while they understood Mr Y intended to rotate the garage, they had not been aware the 2015 plans moved it nearer to their boundary, so they saw no reason to object and did not look at the plans.
  11. In their correspondence with the Council Mr X acknowledged Mr Y’s original garage was on their boundary, but when the roof timbers went on the detached garage, they felt it was too tall, overbearing and should not have been permitted. After attempts to negotiate with their neighbour failed, they complained to the Council in late summer, 2017.
  12. I understand officers visited following Mr and Mrs X’s original contact and the height of the garage was measured. Mr X says the garage impacted his conservatory and placed his garden in shade from 6pm.
  13. In February 2018 Mr Y submitted a further request to amend the garage. I understand these changes followed visits from the Council about Mr X’s complaint.
  14. The request indicated that the garage, as constructed, was slightly different to the 2017 approved plans. The changes included a slightly higher ridge (5.8m rather than the 5.7 permitted). They also included the creation of a storage room in the eaves of the garage with roof windows (facing away from Mr X’s property). The plans also reduced the length of the garage from 9.4m to 7.7m. The Council considered these alterations were relatively minor, and acceptable.
  15. A manager visited Mr X in February 2018 in response to his complaint. He sent a response to Mr X in March. In it he acknowledged there was a change to Mr and Mrs X’s living conditions. However, having assessed the garage against the Council’s policy and having considered the impact, he concluded the case officer’s decision to approve it was appropriate. He felt the impact was not significant enough to warrant the refusal of the application. He stated a decision to refuse the application on those grounds would possibly have been overturned if Mr Y had been appealed it.

The time it took for the Council to respond

  1. When Mr X raised his formal complaint, there were some delays in responding. Mr X complained in October 2017, but it took until February 2018 for a manager to visit him and March 2018 before the officer responded. Mr X asked the Council to take the matter further in April. At the end of May the Council apologised for the delay in responding. In July, the Council called to discuss the complaint. In September 2018, an officer explained the reasons for the delay and responded to Mr X’s further points. There was some confusion about the complaint process. As Mr X was unhappy with the outcome he contacted the Ombudsman.
  2. In January 2019, the Council sent a further response to Mr X about how it dealt with their complaint.

Analysis

  1. Councils are required to give publicity to planning applications. The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website.
  2. The Council sent neighbour notification letters for all of the applications. Mr X complained the description of the application in 2015 did not refer to the changes to the garage. The description is only intended to explain the proposed development in general. The aim of the notification letter is to alert those living nearby about development proposals to enable them to look in detail at what is proposed. This is now commonly done by viewing plans online, but the full plans for proposed development can also be viewed at council offices.
  3. It is unfortunate that Mr and Mrs X did not choose to view the plans in 2015. This would have alerted them to the fact that a change was being made to the garage and they could have provided comments. However, the notification letters the Council sent met the Council’s obligations to publicise the planning applications. I found there was no fault in the way the Council publicised the application.
  4. Although Mr and Mrs X did not object to the development, local opposition or support for a proposal is not in itself grounds to refuse or grant planning permission. A council must have valid material planning reasons for their decision.
  5. Material planning considerations include privacy issues such as overlooking and whether the scale of proposed development is appropriate. So, regardless of whether comments are received from neighbours, councils should consider the impact that development will have.
  6. The case officers report demonstrates that the case officer considered relevant material planning considerations when making the decision to approve the applications in this case. The case officer’s report for each application shows that the impact of the garage on Mr and Mrs X was considered.
  7. Although Mr and Mrs X question the description of the application in 2015, Mr Y did not implement the 2015 planning permission. Rather, he submitted a request to change the permission in 2017. So, Mr and Mrs X did have another opportunity to comment on the placement of the garage if they wished to.
  8. The 2015 and 2017 plans clearly show the position of the garage. In 2017, they showed it had been rotated 90 degrees. I found the Council correctly considered the position of the detached garage in 2015 and 2017 and considered its impact.
  9. I recognise Mr and Mrs X consider the impact of the garage is too harmful and should have been refused. However, when reaching planning decisions, council officers must balance a number of competing priorities. They must consider whether the development accords with relevant planning policies and take account of the potential for harm to residents’ amenity. But, they must also consider if any harm caused gives them strong enough grounds for refusal that would be sustainable if an applicant makes an appeal.
  10. Although the Council noted there would be an impact to Mr and Mrs X’s outlook, they considered the garage would not cause sufficient harm to warrant the refusal of the application. As there is no fault in the way the Council reached its decisions, I do not have grounds to criticise the outcome. We cannot seek changes to the approved permissions.
  11. In their complaint, Mr and Mrs X stated Mr Y had no valid planning permission to relocate the garage because it was not referred to in the description of the application. This is not the case. The description of cannot include every element of a planning application. The submitted plans show the development that is proposed. In 2017 the garage was also specifically referred to when Mr Y applied to make further changes (including rotating the garage 90 degrees). As the location of the garage formed part of the plans in 2015 and 2017, and the Council approved these applications, it does have planning permission.
  12. There was some delay in the way the Council responded to the complaint and some confusion over the complaint process. This was fault; however, it seems clear any delays did not have an affect on the overall outcome. I note that the Council acknowledged it could improve its responses in some areas and it took some learning from the complaint.

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Final decision

  1. There was some fault by the Council in responding to the complaint. However, this did not lead to a significant injustice to Mr and Mrs X. There was no fault in how the Council decided the planning applications. I have completed my investigation and closed the file.

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Investigator's decision on behalf of the Ombudsman

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