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.
- 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
The Ombudsman’s role and powers
- 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)
- 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 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.
What I found
- 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.
- 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.
- In 2017, the Council received a planning application which proposed the erection of a detached house with associated works.
- 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.
- 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.
- 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.
- 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.
- Mr X said the proposal would lead to destabilisation of a bank.
- 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.
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
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- I closed this complaint because I did not find fault by the Council.
Investigator's decision on behalf of the Ombudsman