Summary: Mr X complained the Council failed to notify him about a neighbour’s planning application. He also complained the Council took too long to respond to his complaint about the matter and gave him inaccurate information. We cannot say whether the Council sent a notification letter to Mr X’s property. It appropriately considered the impact of the development on residential amenity. It unacceptably delayed responding to his complaint causing him frustration. It has apologised to him for this. This is sufficient to remedy the injustice caused.

The complaint

1. Mr X complains the Council failed to notify him about a planning application for an extension to a property next door to his. He says that meant it failed to consider his objection to the impact of that development on his amenity. As a result, Mr X says the amenity of his property has been adversely affected.
2. Mr X also complains the Council took too long to respond to his complaint about the matter and gave him inaccurate information.

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The Ombudsman’s role and powers

3. 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’.
4. 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)
5. 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

6. I spoke to Mr X about his complaint.
7. I asked the Council questions about the complaint and considered its records, correspondence and the planning officer’s report.
8. I considered the Council’s statement of community involvement.
9. I gave the Council and Mr X the opportunity to comment on my draft decision. I considered Mr X’s comments before making this final decision.

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What I found

10. 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. For small scale residential developments, councils can either place a site notice, or send out neighbour notification letters.
11. The Council’s published statement of community involvement sets out what it has to do to notify and consult on planning applications. For household planning applications, the statement says the Council will:
• Publish details on its weekly list of planning applications and on its website
• Make the application available to view at its offices
• Notify the parish council or planning panel (depending on the location)
• Send notification letters to neighbours or place a site notice.
• Give 21 days for written comment
12. Councils must make planning decisions in accordance with the development plan, unless material considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest. They do not include consideration of private matters such as reduction in the value of a property. Material considerations can include issues of overlooking, traffic generation and noise.
13. Local opposition is not, itself, a ground for refusing planning permission, unless it is founded on valid material planning reasons.
14. It is for the council to decide the weight to be given to any material consideration in determining a planning application.

Background

15. Mr X lives in a residential area. He was living away from this address for the period covered by the planning application that led to his complaint. He had rented the property out to a tenant for this time. The area has a residents association and management company. Properties are subject to a restrictive covenant concerning the use of their homes and of certain developments.
16. Mr X’s neighbour submitted a planning application for a single story extension and erection of a store on their property. The Council planning database shows it intended to send neighbour notification letters to the three adjoining properties, including Mr X’s house. It records these letters as having been sent.
17. The Council has provided a sample notification letter that refers to the application, how to access details on line and that any comments should be sent by a certain time. Mr X says his tenant did not receive that letter and he was therefore unaware of the plan.
18. The Council sent a consultation request to the relevant local planning panel. The panel responded and objected to the development. It commented on aspects of its design and layout. It said it would set a negative precedent for the area, increasing the likelihood of granting similar permissions. It referred to the extension possibly being prohibited by deeds for the property.
19. The Council planning officer’s report said that was the only response to consultation. It had no feedback from the neighbour notification letters. It set out the objection from the planning panel in full.
20. The officer’s report considered the impact of the development on the dwelling and its surrounding area. It concluded it was modest and did not justify refusal, having had regard to the location, layout and design.
21. The report considered whether it set a precedent for others. It concluded each application would be considered on its merits and so it did not set a precedent.
22. The report considered the impact on neighbouring amenity. It concluded the impact was relatively modest and that harm to the outlook of neighbours was not so unduly harmful as to warrant refusal.
23. The Council granted approval for the development under officer delegated powers.

Mr X’s complaint

24. Several months later, Mr X returned to live in his house. He wrote to the Council and asked it for information about how it had consulted on the development he now found had occurred next door.
25. The Council took over a month to reply to Mr X’s request. It sent Mr X a copy of its neighbour notification letter. The copy was addressed to the property for which planning permission had been sought, rather than to Mr X’s property.
26. Mr X pointed out this mistake and said it probably explained why his tenant had not received the letter. It had gone to the wrong address. He said the Council had denied him an opportunity to comment.
27. The Council replied, two weeks later, and apologised for sending a wrongly addressed letter. It sent him a new copy, with his property’s address on it. Mr X spoke to the Council, and asked it for proof it had sent a correctly addressed letter as part of the neighbour notification exercise. The Council did not respond.
28. Mr X then formally complained to the Council that:
• It had not sent him a notification of the request for planning permission. He had not been able to raise concerns. He said other departments of the Council knew where he was living and it should have used that information to alert him.
• The development took sunlight from his garden, decreased his standard of living and house value.
• It had taken far too long for it to deal with his questions.
29. The Council replied and said its records showed it had correctly issued neighbour notification letters. The electronic record showed the letter template code, address and date printed. It did not keep copies of letters.
30. It would not routinely check addresses across other council departments as it could contravene data protection regulations. Its policy was to either write to adjoining neighbours or to display a site notice. It would not normally post a site notice for householder extensions.
31. It said it should have dealt with Mr X’s questions and directed him to the complaint team more quickly. It apologised for the distress caused.
32. Mr X replied saying the Council had not been able to prove it sent a copy of the notification letter to his property. His tenant was sure a letter had not arrived. He asked the Council to review his complaint.
33. Mr X chased the Council for a response after three weeks. The Council replied and said it was unlikely a review would lead to a different outcome and referred Mr X to the Ombudsman.
34. In response to my enquiries the Council provided records from its database. It said the officer responding to Mr X’s enquiry had initially confused his address with that of the property for which permission had been sought.
35. The Council said the officer planning report had considered the impact of development on residential amenity and concluded it was limited and did not provide grounds for refusal.
36. It accepted it had taken too long to respond to his complaint and apologised. The delay was because of staff shortages leading to slower response times. It said it had rectified the problem.
37. Mr X told me the development was contrary to the residents association covenant, that the residents association should have been consulted and that the council’s consultation process was not fit for purpose.

My findings

38. The Council’s database showed it correctly identified the neighbouring properties and that it intended to send notification letters to these. Its system does not keep actual copies of letters sent. It only holds the data used to send letters by mail merge. Mr X strongly believes this is an inadequately robust approach as it does not provide proof of sending.
39. The Council does not have to keep copies of its notification letters. It has showed it correctly identified the properties to which letters should be sent. Its system shows the letters were sent. Mr X is sure his tenant did not receive this letter. I cannot reach a conclusive finding on whether or not the letter was sent to Mr X’s address.
40. Mr X believes the Council should also have consulted with the residents association and the management company for properties in the area. The Council followed its adopted, published statement of community involvement to decide to notify neighbouring properties and to consult with the relevant planning panel. It could have decided to also notify the residents association but it was not fault for it to have decided not to in this case as this was not required by its statement of community involvement. There was therefore no fault in its decision regarding notifications and consultations. These were in accordance with its published, adopted statement of community involvement.
41. The Council’s officer delegated report considered the impact of the proposed development on the property and its surroundings. It considered the impact on the amenity of neighbours and of whether the development set a precedent. It considered the grounds for objection cited by the consultation response from the planning panel. It decided that, having regard to these relevant material considerations, there were insufficient grounds to refuse permission. This is a decision the Council was entitled to take, having had regard to relevant material considerations.
42. Mr X refers to the restrictive covenant concerning the development. Restrictive covenants are private land interests. They are not material planning considerations and so councils cannot lawfully take account of them in determining planning applications. Therefore there was not fault by the Council in respect of its consideration of any such restriction on the property in question.
43. The Council has also explained, correctly, that the impact of development on the value of Mr X’s property was not a material planning consideration and so could not, lawfully, be taken into account.
44. Therefore, on the balance of probabilities, Mr X did not suffer significant injustice arising from the alleged fault. Had he responded to the notification highlighting his concerns, it was unlikely to have changed the outcome of the Council’s planning decision.
45. The Council took too long to respond to Mr X’s request for information. When it responded it initially sent Mr X a copy of the notification letter containing an error in the address used. These were faults that caused him frustration and led him to doubt the accuracy of the Council’s statements. The Council has apologised to Mr X for this which is an appropriate action to remedy injustice. The Council has taken action to improve capacity in the team to respond to such matters which will prevent reoccurrence of this fault.

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Final decision

46. I have completed my investigation. I do not uphold Mr X’s complaint concerning alleged fault in the grant of planning permission. I uphold Mr X’s complaint concerning the Council’s handling of his complaint about this matter. It has already taken action to remedy injustice from that fault.

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Investigator's decision on behalf of the Ombudsman