Forest of Dean District Council (18 012 929)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 25 Mar 2019

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint that alleged fault in its handling of a planning application for development at a property next to the complainant’s home.

The complaint

  1. Mr X complains about the Council’s handling of a planning application for development at a property next to his own. Mr X says the Council:
    • did not give proper reasons for overturning its own conditions relating to the property in all previous applications.
    • based its decision on inaccurate, incomplete and irrelevant planning considerations.
    • made procedural errors and omissions in the handling of the case
    • failed to communicate in an open and timely manner
    • demonstrated a lack of due diligence and competence in its assessment of the impact of the development on neighbouring amenities
    • allowed the applicant to breach stated deadlines to allow for a positive decision
    • failed to investigate the exertion of undue influence by a local councillor

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
  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 reviewed the complaint and information provided by Mr X. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties in reply.

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What I found

  1. In 2013, the Council granted outline planning permission for the construction of a house on land adjoining Mr X’s home on condition that it should be single storey. This was in keeping with outline planning permissions granted in 2004 and 2009.
  2. In 2015, the Council granted full planning permission for a detached two storey dwelling. The proposed house would be set into the ground and its ridge height would be 5 metres compared to the ridge height of the adjoining bungalow of 5 metres.
  3. In 2017, the Council received a planning application which proposed the erection of a detached house with associated works.
  4. Mr X objected to the application. He said the outline planning permissions were approved on condition that the proposed houses would be single storey. The 2015 permission was only granted because the ridge height of the proposal would be 5 metres and a condition was imposed which removed the right to install dormer windows in future. Mr X said the new plans contravened this principle.
  5. Mr X objected because of overlooking and loss of privacy. He said the Council’s residential design guide emphasised the need for private outdoor spaces. He said the proposal would remove any privacy from their entire outdoor space since there are large first floor windows overlooking their front and rear gardens. Mr X said there is a local plan requirement of 21 metres between dwellings especially between living spaces. He said the proposed house would be around one metre from the shared boundary and less than 4.5 metres from his home. Mr X said there were many windows facing his property unlike the previous planning application which proposed only one window facing his home.
  6. Mr X said the proposal would lead to a loss of light to his home as an 8.4 metre building immediately to the south of his home would have an enormous adverse impact on their light. Mr X said the Council’s planning guide emphasises the need for good solar access and the proposal took no account of this.
  7. Mr X objected to the scale of the development. He referred to policy CSP1 of the Council’s development plan which states that design and construction of new development must consider important characteristics of the environment and conserve, preserve or respect them in a manner that maintains or enhances their contribution to the environment. Mr X said the proposed house was out of scale within its immediate context. Mr X said the narrowness of the site and the issues of its location led the Council to impose the condition limiting a proposed house to single storey.
  8. Mr X said the proposal would lead to destabilisation of a bank.
  9. The Council referred the application to its planning committee at the request of a councillor for the following reasons:
    • The site is long and narrow and the application is for a two-storey dwelling which means the house is very close to neighbouring properties.
    • There have been two previous applications which conditioned that any new dwelling be single storey to safeguard the amenities of adjoining residential properties.
    • This is a two-storey dwelling with a balcony at the rear which will overlook the rear gardens of both adjoining properties resulting in a complete lack of privacy.
    • Roof lights would also overlook the sides of both properties. The height of the proposed dwelling would significantly affect light to Mr X’s home.
    • The height is out of character with the area.
    • Concern is expressed about the stability of the back due to removal of a tree.
  10. Members of the planning committee made a site visit ahead of its meeting.
  11. Mr X addressed the planning committee at its meeting. So, it is clear the committee was aware of his objections and the points also made by the councillor in referring the application to the committee.
  12. The case officer drafted a report for the planning committee. She described the proposal. She noted the proposed house would measure 9 metres by 15.8 metres and would have a height of 7.1 metres. She explained the original submission proposed a height of 8.2 metres but it was reduced to a height similar to that of a property two doors away. The officer notes changes were made to the front elevation and the applicant had confirmed the roof lights would be more than 1.7 metres above floor level.
  13. The officer noted eight letters had been received from four properties raising objections to the original and revised plans. She summarised these objections in the report. She also summarised the objections of the Parish Council.
  14. The officer noted the letter provided by the applicant which sought to address the reasons the application had been referred to the committee.
  15. The officer set out the local plan policies that applied to the application before assessing the merits of the application.
  16. The officer explained every application is assessed on its merits and, although previous outline planning permissions had been conditioned that any dwelling should be single storey, it did not follow that the only solution for the site was a single storey dwelling if it can be shown that a two-storey dwelling would not adversely affect the character and appearance of the area or living conditions of neighbours.
  17. In terms of the character and appearance of the area, the officer noted the area is characterised by a mix of bungalows and two-storey dwellings with bungalows on either side of the application site. The officer noted the proposed house would have a different appearance to the neighbouring houses; would have a gable facing the road; the first-floor accommodation within the roof space; a Juliette balcony on the rear elevation; and it would be taller than the houses either side of it. The officer compared it to the previous two storey proposal granted permission.
  18. The officer said the design of the proposal had been amended to reduce its height and break up the gable elevation. The officer noted the first-floor accommodation would have roof lights in the sides of the roof but the roof lights would be 1.7 metres above the floor level. This reduced the potential for occupiers to look out of the windows into the homes or gardens of the neighbours.
  19. The officer said the proposed property was different from its immediate neighbours but there were a variety of different dwellings in the area. The officer concluded the proposal would not adversely affect the character and appearance of the area and would not be so out of place that the application should be refused.
  20. On living conditions within neighbouring properties, the officer noted there would be four roof lights on one roof slope and five on the other roof slope. She noted all roof lights would be set at least 1.7 metres above the floor level. She was satisfied this meant there would be no overlooking to neighbouring properties.
  21. At ground floor level, the officer said both elevations would have windows which faced towards the neighbouring properties. The officer noted the ground floor windows would be obscure glazed on the north elevation facing Mr X’s home. There was also a 1.8 metre fence between the properties.
  22. On the other side, the officer noted the windows would face towards a garage and there was also a 1.8 metre fence between the properties. The officer concluded the roof lights and ground floor windows would not result in an adverse impact on living conditions of the neighbours.
  23. On the Juliette balcony, the officer said the proposal had been designed so that a 0.4 metre section of wall on either side of the proposed house would provide a degree of screening to the windows in the rear elevation. This meant a person standing in front of the window could not look directly into the living room windows of the neighbouring properties. The officer said there would be some overlooking of the rear gardens of the neighbouring properties but this was similar to the overlooking associated with the previously approved dwelling with two-storey and single storey elements. The officer said permitted development rights for roof alterations or additional roof lights or windows would be removed.
  24. In terms of impact on ecology, the officer noted the comments of Natural England which indicated it was broadly satisfied with the proposal. The officer noted the applicant would provide a habitat management plan as well as construction management plan and these could be conditioned if permission was granted.
  25. In terms of land stability, the officer noted a condition could be imposed on the development requiring provision of a drainage scheme as well as tying of gabions to the bank. There would not be an adverse impact on the stability of the bank
  26. The officer noted other non-material considerations raised in objection to the application such as right to light, restrictive covenants and insurance. The officer said these were private matters and not planning matters and so could not be considered by the committee.
  27. The planning committee voted to approve the application.
  28. Mr X then complained to the Council and then the Ombudsman.

Analysis

The Council did not give proper reasons for overturning its own conditions relating to the property in all previous applications & The Council demonstrated a lack of due diligence and competence in its assessment of the impact of the development on neighbouring amenities

  1. The Ombudsman is not a planning appeal body. This means he cannot substitute his judgement on the rights and wrongs of the planning application for that of the Council. With this point here, Mr X invites the Ombudsman to act as an appeal body. However, the Ombudsman cannot determine the application again.
  2. We can examine a complaint to see if there was fault in the process leading up to the decision. In this case, it is clear the committee report set out the objections to the application; the details of previous planning permissions and the reasons for approval of those application; as well as the officer’s assessment of the merits of the planning application. I am satisfied the officer included reasons for her recommendation of approval to the committee. As there is reasoned justification in the report I do not find fault with the Council’s decision.
  3. I shall comment separately on the matter of a right to light raised by Mr X. Generally, people and buildings do not have a right to light. Instead, the law has to balance the need for light to existing buildings, and the need for new buildings through the planning system. Local planning authorities consider the effect of new buildings upon existing structures; and so, the planning system may give protection but not rights. Easements of light or ‘rights to light’ are private property rights. Therefore, the officer report pointed out Mr X’s comments on right to light were not planning considerations.

The Council based its decision on inaccurate, incomplete and irrelevant planning considerations

  1. It appears Mr X refers here to the committee report which he found to be inaccurate, incomplete and filled with irrelevant planning considerations. For instance, Mr X says the committee report stated the degree of overlooking would be broadly similar to the previous design but this was untrue. Mr X also disputes the measurements of the height of the proposed building in the report.
  2. These are Mr X’s views compared to the views of the Council. It is not for me to adjudicate between these viewpoints. That would be the role of the courts had Mr X sought a judicial review of the decision.
  3. I note Mr X made these points in written representations distributed to the planning committee. Mr X then addressed the committee. It was then for the committee to decide to defer the application pending resolution of the points made by Mr X or to press on with determination of the application if they were satisfied with the officer report and measurements. I note there was discussion of these points by the committee before it decided to put the matter to a vote. That is the normal process and so I do not find fault by the Council.
  4. Mr X says the case officer misled the committee when she was questioned by the chair of the committee. He says the Council then redacted the officer’s responses from the official audio recording of the meeting.
  5. Mr X’s view that the officer misled the committee is subjective and based on his own understanding of the merits of the application. Officers can have their own views on the merits of the application in the same way as third parties such as Mr X. It was for the planning committee to either accept the recommendations and views of officers and so approve the application or refuse the recommendations and so refuse planning application.
  6. I am satisfied the fact the Chair questioned the officer about the issues raised by Mr X and others shows the committee process was properly applied by the Council in this case.

The Council made procedural errors and omissions in the handling of the case & failed to communicate in an open and timely manner

  1. The Council’s stage two complaint response included issues such as a failure to post a site notice; a failure to notify relevant neighbours at various stages of the application; a failure to comply with the Council’s stated deadlines; a failure to communicate with affected parties or to demonstrate due transparency.
  2. None of these matters affect the main point about whether the Council took account of the comments made by Mr X. A planning application involves a relationship between the applicant and the local planning authority. Where third parties are concerned, the local planning authorities must make them aware of the planning application and ensure it takes account of material planning considerations made in their comments on the planning application.
  3. Mr X was aware of the application and made his comments known to officers and the planning committee. I do not consider a complaint about the Council’s failure to post a site notice or failure to notify other neighbours warrants pursuit by the Ombudsman because Mr X was clearly aware of the application and he was able to comment on it.
  4. Whether the case officer did not respond to telephone calls he or others made may be a failure of courtesy but it does not lead me to conclude the Council did not meet the statutory requirement involving third parties.

The Council allowed the applicant to breach stated deadlines to allow for a positive decision

  1. Whether the Council did not determine the application within government guidelines of eight weeks again does not affect Mr X to a degree that should involve pursuit of the point by the Ombudsman. The legal relationship is between the applicant and the local planning authority. So, if the Council missed the deadline it was for the applicant to decide whether to proceed with an appeal to the Planning Inspector due to non-determination.
  2. As far as the Council’s obligation to Mr X as a third party is concerned, I do not find fault.

The Council failed to investigate the exertion of undue influence by a local councillor

  1. Mr X says a councillor attended the site visit made by the planning committee and lobbied councillors on behalf of the applicant. He says the councillor then made an inaccurate, misleading and biased statement in support of the application at the committee meeting. Mr X says the councillor told the committee no objections had been received from anyone who knew anything about planning.
  2. Mr X made a freedom of information request to the Council which did not reveal any contact between the applicant and the councillor. Mr X says the councillor is a freemason and this may have played a part in his actions
  3. The Council’s response to Mr X said the planning officer presented at the site meeting recalled the councillor speaking at the meeting but did not recall any overt lobbying in favour of the application. It said the councillor was entitled to his own view on the proposal and was entitled to convey his views to the committee at the meeting as he is a ward member. The Council pointed out Mr X could pass any evidence he has of a pecuniary or other interest the councillor has in the scheme to its monitoring officer for investigation.
  4. I do not find fault because the Council did not investigate Mr X’s concerns further than set out in its complaint response. Simply, the council as ward member was entitled to make his views on the application known to the committee in much the same way as Mr X did. If there is a relationship between the councillor and the applicant which influenced the councillor’s action then Mr X can ask the Council’s monitoring officer to see if there has been a breach of the Member’s Code of Conduct.

 

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Final decision

  1. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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