Summary: We find fault in the way the Council recorded information on a planning record, which caused confusion to the complainant. The Council otherwise validated and then considered the application in line with proper processes. The Council has agreed to apologise to the complainant for its faults and to improve its record-keeping.

The complaint

1. Mrs X complained that the Council did not follow proper procedures in dealing with and determining a planning application for a development next to her property.
2. Mrs X says the Council did not address her objections and in particular how it considered the potential loss of light to her property from the east.

Back to top

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’. 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)
4. 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)

Back to top

How I considered this complaint

5. I have spoken with Mrs X and considered information from her.
6. I have considered comments and information provided by the Council.
7. I have considered the relevant planning application record on the Council’s website.
8. I have considered:
• the Town and Country Planning (Development Management Procedure) (England) Order 2015
• the Government’s guidance on making planning applications on its website;
• the National planning application validation requirements; and
• the Council’s Planning information on its website.
9. I have written to Mrs X and the Council with my draft decision and given them an opportunity to comment.

Back to top

What I found

10. In the Spring of 2018 the Council received an application for the development of a property next to Mrs X’s home.
11. The Council asked the applicant for more information before it would accept the application as ‘valid’. The applicant provided the information and the Council ‘validated’ the application in late March.
12. The Council publicised and consulted on the application from May 2018. Mrs X and others made representations about the development and about the information available on the planning record, which she and others said was inaccurate.
13. The Council sought more information from the applicant and in August re-consulted on the application. Mrs X made no further representations at that time.
14. The Council then approved the application in November 2018.
15. Mrs X complained to the Council about its processes. She remained dissatisfied with its responses and brought her concerns to the Ombudsman.

The legal background to planning procedures

16. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order) sets out the process the Council should follow when it receives planning applications. This is based on the provisions in Town and Country Planning Act 1990.
17. Part 3 (7) of the Order sets out what information the applicant needs to provide to the Council for it to accept it as a ‘valid’ application.
18. The Order also provides for the Council to have its own list of information additional to the national minimum requirements. This list must be published on the Council’s website within two years immediately before an application is made for it to apply to the application.

What the Council did

19. When the Council received the planning application it noted that it did not meet the national validation requirements.
20. The Council immediately asked the applicant to provide further information which included a site location plan with the site outlined in red, existing elevation and floor plan drawings, and a block plan of the proposed works.
21. The Council received these documents within a few days, at which point it says it validated the application.
22. The Council received more information from the applicant in the next weeks. The Council says it started its public consultation on the application in May 2018. The Council’s planning record shows that Mrs X and other neighbours put in objections to the Council in April 2018 and the Council received consultation responses from Highways and other statutory consultees.
23. The applicant made changes to the design of the development in May 2018 and Mrs X and others commented further on the proposals in June.
24. Mrs X and others also raised concerns about the lack of complete information with the application, inaccuracy of the plans and that the declaration of land ownership on the original application was incorrect.
25. The Council asked the applicant for more information and in August the applicant provided a different certificate of ownership and a revised site plan. The Council then started a new round of consultation on these changes. There is no record of Mrs X making a further representation on the proposals at that stage.
26. The Council said in response to my enquiries that the case officer (who has since left the Council) did not make any record of a site visit as part of his assessment of the application. The Council cannot be certain a site visit took place. Mrs X says one did not take place and had it done so, the Council could have seen the likely impact of the proposed development on her property, in particular, on the loss of light she says will impact her from the development.

Analysis

27. Mrs X and others said the Council did not ensure the applicant provided all the necessary documents to validate the application, and so the Council should not have moved to publicise and consult on the application in March 2018.
28. The Council has explained the application originally did not meet the national validation requirements, so it requested additional information, which it received with in a week of the original application. It was at that later point in March the Council validated the application.
29. One representation to the application referred to a local validation list. The Council in its officer report on the application stated that it did not at that time have a local validation list. There is no such list published on its website; the website says local requirements are ’under consideration’.
30. I therefore consider the Council was not able to require the applicant to provide additional information such as a structural survey as the local list was not published on its website. I therefore do not find fault that it validated the application in March 2018.
31. However, the Council has a document described as its Local Validation List readily accessible through an internet search, which is undated. This is confusing and is the list referred to by one of the respondents to the application.
32. Having validated the application, the Council opened it to public notification and consultation with the required bodies, such as Highways. It received comments from Mrs X and others.
33. When the applicant made changes to the design, I am not clear whether the Council provided this information direct to Mrs X. However, she and other local people made further representations in June 2018, which referred to those changes.
34. From those representations the Council was made aware that the ownership declaration on the application was possibly incorrect. The Council sought clarity from the applicant as it should, who submitted a revised declaration certificate and revised site plans.
35. The Council considered these a material change to the application so opened a new period of public notification and consultation in August. Mrs X made no further representations at that point.
36. I do not find fault in the way the Council consulted on and publicised the application at the various points in its consideration. Mrs X and others had opportunities to comment on all the revised information and did so.
37. However, the Council in its response to my enquiries provided conflicting information. It said it consulted on the application in May 2018, not March, which is at odds with the evidence on its planning record. This shows that statutory consultees and the public made comments in April. In addition, the planning record says the application was validated in August 2018, rather than in March, which the Council has explained to me.
38. The Council should be clear in its records when it validated the application, when it opened it up for consultation, and when it re-consulted. This lack of clarity is in part the reason for Mrs X’s complaint and I consider it is fault.
39. The existence of an undated local validation list that is readily found through a simple internet search is also confusing. I would not expect the public to know the details of the Town and Country Planning (Development Management Procedure) (England) Order 2015 and that the list only applies when it is published on the Council’s website. Therefore the Council should ensure this information is clearly labelled about its current status.
40. Mrs X says the Council did not carry out a site visit and did not give proper consideration to the impact of the development on the light to her property.
41. The Council’s response to my enquiries said the case officer: “did indicate for the Stage 1 response that a site visit was undertaken, there are no contemporaneous notes, or formal record of the visit.”
42. Without clear records I am not able to confirm whether a site visit took place. The Council should be able to clearly evidence to Mrs X and to the Ombudsman whether or not it carried out a site visit and, if it did, as a minimum a brief summary of what the officer saw, or photographs. I consider the lack of such records is fault.
43. The Officer’s report sets out the issues the Council considered in reaching its decision to approve the application. These include Mrs X’s concerns about a loss of light. The report explains that the amended design reduced the impact on her property by removing features that could have overlooked her and lowered the height, so reducing the impact on her loss of light.
44. Mrs X has explained to me the rooms affected are not primary habitable rooms, such as a lounge, kitchen or main bedroom.
45. I therefore consider the Council did take into account her concerns and reached a view that the impact of the development was not so severe it could refuse the application on that basis. That is a decision the Council was entitled to reach.
46. On balance, given the rooms Mrs X says will be affected, I do not consider the Council would have altered its views had it carried out a site visit, if in fact it did not.

Findings

47. The Council did not provide clear information on its planning records which caused Mrs X and others confusion and some difficulty in understanding the way the application progressed. In particular, it failed to keep a clear record of whether a site visit took place and, if so, a record of what was seen and considered.
48. This caused Mrs X unnecessary frustration.
49. The Council properly validated and then considered the application through proper processes. It considered the impact on Mrs X’s property and light.

Agreed action

50. I recommend the Council apologises to Mrs X for the lack of clarity in its planning records on this application and the uncertainty and frustration this caused her.
51. The Council should provide this apology to Mrs X within one month of my final decision.
52. The Council should:
• review the public record of this planning application and ensure the dates for validation are accurate and that it clearly states when consultation started;
• review the way it records such key dates on its planning records generally to ensure such lack of clarity does not happen;
• review the recording of site visits to ensure, where they take place, adequate records are kept to show what was seen and considered and, where one does not take place, this is recorded with a short explanation of why; and
• review the easy availability on the internet of documents setting out local validation lists for planning applications, with a view to clearly dating and labelling the documents to ensure their current status is unambiguous and providing an explanation on its planning website about them.
53. The Council should complete these actions and provide the Ombudsman with evidence of what it has done, within three months of my final decision.

Back to top

Final decision

54. The Council was at fault in the records kept on the relevant planning application in this case, which caused Mrs X limited injustice.
55. As the Council has agreed to my recommendations, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman