The Ombudsman's final decision:
Summary: Ms D complains the Council failed to fully consider her objections to a planning application. She also says it failed to reply to her complaint. The Ombudsman has not found fault in respect of the planning application but there are serious service failings in complaint handling. The Ombudsman has completed the investigation and upheld the complaint. The Council has agreed to the recommended actions.
- The complainant (whom I refer to as Ms D) says the Council failed to fully consider her objections to a planning application for a neighbouring site in 2019. She also says the Council did not reply to her formal complaint.
The Ombudsman’s role and powers
- 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)
- 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 have considered the information provided by Ms D. I asked the Council questions and carefully examined its response.
- I shared my draft decision with both parties and considered their replies.
What I found
- In August 2019 the Council received a planning application for a site next to Ms D’s home. The application included replacing a garage with a separate annex (a “granny annex”). On 24 September Ms D sent the Council her objections. She said the annex would be too close and there would be a loss of light and privacy. She also felt it was out of character for the conservation area where she lived and an over-development.
- On 23 October the Case Officer at the Council issued a report considering the objections. The report summarised objections received by the Council. It considered whether the development would cause unacceptable harm to residential amenity and whether the annex was acceptable. The report refers to consideration of the “45 degree rule” and potential impact on neighbours. It also listed the documents taken into account which did not include a heritage statement provided by the applicant. The report found the plans would not detrimentally impact on the character of the conservation area. Planning permission was granted. A condition was attached to restrict the use of the annex. In the condition section the annex was incorrectly referred to as a studio flat.
- On 20 November Ms D emailed the Council expressing dissatisfaction with its decision. She pointed out the error where the annex was called a studio flat. The Council replied the next day. It set out the complaints process and would rectify the error on the report. On 22 November the Case Officer updated the report and replaced reference to studio flat with annex.
- At the end of 2018 Ms D submitted a formal complaint to the Council (called a Stage One complaint). The Council has failed to keep a record of the complaint and did not reply to Ms D.
- On 19 February 2019 Ms D contacted the Ombudsman. She stated she had sent a complaint to the Council 12 weeks earlier and not received a reply. The Ombudsman asked the Council to reply to Ms D. I cannot say when the Council responded to Ms D, if at all, because it has failed to keep copies of its correspondence. Ms D wrote to the Council on 31 March asking it to escalate her complaint. She sent it by recorded post and has proof the letter was received and signed for at the Council. The Council says it has no record of the letter. It failed to take any action. Ms D says an Officer called her in August about her complaint. The Council has not retained a record of the call.
What should have happened
- Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
- The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
- Government statements of planning policy are material considerations. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
- Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
- The Council’s complaints process requires it reply to a complaint within 15 working days. The Council says that postal complaints are manually forwarded to the relevant team who then scan and log the complaint.
Was there fault by the Council
- There is fault by the Council.
- The Council failed to handle Ms D’s complaint correctly. There is an absence of evidence from the Council as to what action, if any, it took from the end of 2018 onwards regarding Ms D’s complaints. I am satisfied from Ms D’s evidence that she did complain to the Council and pursued the case with it into 2019. Even after contact from the Ombudsman in February 2019 the Council failed to consider and reply to the complaint. This is unacceptable and a significant service failure. Ms D should have received a reply to her complaint at the end of 2018 and instead had to come to the Ombudsman.
- I would add the Council’s handling of my enquiries have also been poor and subject to unnecessary delay even with concessions made in respect of Covid-19.
- In respect of Ms D’s complaint about the planning decision I have not found evidence of significant fault causing an unremedied injustice. The Council did incorrectly refer to the annex as a studio flat. This was subsequently rectified. Having looked at the delegated decision I can see that Officers were aware the application related to an annex and was considered on that basis. The Council noted objections received and the material planning considerations raised by Ms D. As such, I do not see any significant fault in this matter. The Council followed the correct process. The Ombudsman is not assessing the merits of the planning application and in the absence of procedural fault will not question the decision reached by the Council to grant planning permission.
Did the fault cause an injustice
- The Council’s failure to deal with Ms D’s complaint caused her unnecessary time and trouble pursuing her case.
- In order to remedy the injustice to Ms D and prevent similar failings in the future the Council has agreed to:
- Paying Ms D £250 for her time and trouble in acknowledgment of the degree of fault with complaint handling;
- Send Ms D a letter of apology;
- Set out for the Ombudsman what steps will be taken to improve record retention;
- Set out how complaints handling will be improved including ensuring complaints are responded to.
- I have upheld the complaint and completed the investigation.
Investigator's decision on behalf of the Ombudsman