The Ombudsman's final decision:
Mrs X complained the Council did not properly consider a planning application for an extension to her neighbour’s home. Mrs X says the extension affects her amenity. There was fault in the way the Council made its decision. Because of this fault, the extension does affect her amenity and the Council should remedy this. There were also delays in its complaints handling and the Council has agreed to review its procedures.
- Mrs X complained the Council did not consider her representations or the impact on her amenity before it approved a planning application for development near her home. She says the delays and poor communication in addressing her complaint have affected her health and caused her distress. She says the Council has accepted fault but has not offered her an appropriate remedy. She wants the Council to either revoke the planning permission or provide financial compensation.
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 read Mrs X’s complaint and considered information she provided.
- I made enquiries of the Council and considered information it sent me.
- Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.
What I found
Legal and administrative background
Planning law and guidance
- Planning permission from Councils is usually 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.
- 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.
- The law gives councils power to revoke or modify planning permission, if they consider this necessary. This action is discretionary. The law says a council “may revoke or modify the permission to such an extent as they consider expedient”.
- If a council revokes or modifies a planning permission, it is required to pay the applicant compensation for expenditure, loss or damage directly attributable to the revocation or modification.
- Government guidance says any enforcement action related to planning law and regulation should be proportionate to the level of harm caused.
- Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
- Permitted development regulations allow for side windows, providing they are obscurely glazed and their sills are 1.7 metres above floor level.
The Council’s complaints procedure
- Councils have complaints procedures to support the effective management of complaints. Cambridge City Council’s procedure has three stages:
- Stage 1 – for first time complaints. The Council aims to respond within 10 working days;
- Stage 2 – an internal review by a Head of Service or Director;
- Stage 3 – an Independent review by an independent complaints investigator. If the investigator upholds a complaint, they may make recommendations to the Council as to how the Council could address it.
- Mrs X’s neighbours applied for planning permission to develop their home. The application was for a rear two storey extension.
- The Council wrote to Mrs X to tell her of the application and invited her to submit representations. Mrs X emailed the Council with her representations at the end of July.
- The Council approved the application. The planning officer’s report showed the Council had considered representations from one of Mrs X’s neighbours but made no reference to Mrs X’s representations. It also did not record how the Council had considered the impact of the development on her amenity, which was a material consideration.
- After the decision was made, Mrs X contacted the Council. She said it had never acknowledged receipt of her representations and the new development would cause loss of daylight to rooms in her property.
- The Council apologised for not acknowledging receipt of her representations. It said although it accepted the development would cause some overshadowing to her home, it did not consider this sufficient reason to refuse the application.
- Mrs X wrote again to the Council. She said the development would cause loss of daylight, be too dominating and cause overshadowing. She said the Council had not appropriately considered her representations and no-one had ever visited her property to assess the potential impact of the development on her amenity.
- Mrs X did not receive a response and contacted a senior Council officer with her complaint.
- The Council responded to her second letter. It told Mrs X that there had been an error, because it had not considered her representations before deciding to approve the planning application. It also said it should have visited her property. It apologised for these errors. It agreed the extension caused some loss of light and overlooking but said there was adequate daylight and therefore it would still have approved the application. It told her if she remained unhappy, she could make a formal complaint.
- Mrs X then made a formal complaint to the Council. She asked the Council to reconsider its decision to grant planning permission, taking into account her representations and including a site visit to her property.
- The Council responded to Mrs X’s complaint. It said it considered the response it sent her in November 2019 as its stage 1 complaint response. It said it had allocated her complaint to a senior manager for a stage 2 investigation. It said it had aimed to respond by now and apologised for the delay. It said the investigating manager would be in touch soon.
- The investigating manager contacted Mrs X. She apologised for the delay and arranged to visit Mrs X at home.
- The manager visited Mrs X at home. She told Mrs X she would consider her complaint and provide a response by the end of the day, but then requested a further two weeks.
- Mrs X then instructed a solicitor. The day before the extended complaint deadline, the solicitor wrote to the Council. The Council considered the letter and decided it raised additional points not yet considered, so it extended the response deadline by a further five days.
- The Council did not respond by the new deadline. Mrs X contacted the Council to say the delay was unacceptable. She said the Council had now given her three deadlines for a complaint response, but it had failed to meet any of them. The Council escalated her complaint to stage 3 and appointed an independent investigator.
- The investigating manager then sent Mrs X her stage 2 response. The investigating manager said the Council should have visited her home to assess the impact and it had missed opportunities to do so. The investigating manager acknowledged there were procedural errors and it had provided her with a poor level of service. She acknowledged the development did cause some overshadowing and loss of light but found the impact of this was not enough to justify refusal. However, the manager said the Council should have imposed a planning condition to obscure glaze and restrict the opening of a first-floor side window overlooking Mrs X’s property. The Council said it would ask the neighbours if they would agree to do this.
- The Council met with the neighbours but they did not agree to the alterations to the first-floor window, even though the Council offered to pay for these. They said they would consider the matter again as the build progressed.
- The independent complaints officer completed his investigation. He upheld Mrs X’s complaint. He said the Council should meet with Mrs X to try and agree an acceptable remedy.
- The Council said it should have:
- considering her representations before approving the planning application;
- set out its consideration of the impact on her amenity in the planning report;
- conducted a site visit to assess the impact of the development on Mrs X’s amenity;
- notified Mrs X of the decision to approve the application.
It also accepted there were errors in its complaints handling.
- The Council apologised to Mrs X for the errors and poor level of service. It said it would continue to try to reach agreement with the neighbours to obscure glaze and restrict opening of the first-floor window.
- The Council met with Mrs X’s representative to discuss a potential remedy. They told the Council that the only remedy Mrs X would accept was revocation of the planning permission. The Council said that this would be a disproportionate response to the injustice caused and it could not agree to this.
- In June 2019, Mrs X remained dissatisfied and brought her complaint to us.
- In its response to my enquiries, the Council said it had accepted fault, but Mrs X had told it the only remedy she would accept was the revocation of the planning permission. It said revoking or modifying a planning permission was subject to compensation, so was not an action the Council took lightly. It said in deciding whether to take this approach, it had to consider the level of harm caused and whether the costs were proportionate to the aim achieved. It considered the circumstances of this case did not warrant this approach. Instead it decided to work with the applicants to try and agree a resolution.
- The Council said it recognised the errors made and that delays dealing with her complaint added to her distress. It said it would offer Mrs X a financial remedy of £500 for the faults during its planning and complaints processes and for the distress caused.
- It said it had already made several service improvements since this complaint. These included:
- a review of how the Council receives representations to reduce the chance of them being missed;
- a review of how it manages consultation and notification correspondence;
- a training programme for staff dealing with planning applications related to consideration of residential amenity; and
- changes to its staffing structure to improve the support provided to less experienced staff.
- We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
- There is no evidence to show the Council considered Mrs X’s representations or the impact on her amenity before it made its decision. This was fault.
- After it received Mrs X’s complaint, it conducted a site visit to her property and appropriately considered her representations. It decided that it would still have approved the overall planning permission. This does not seem unreasonable, as permission is not usually required for side windows with high sills and obscure glazing. Because of this, I cannot say the fault I have found means it is likely the application would have been refused.
- The Council said if it had appropriately considered her amenity, it would have imposed a planning condition to obscure glaze and restrict the opening of the side window overlooking Mrs X’s property. I agree this would have been a reasonable response to the harm caused by the side window. But for the fault I have found, I think it is likely the Council would have included this as a condition of the planning permission.
- Because of the fault, the window is now clear glazed with no restrictions on how it opens. The Council cannot now insist the neighbours make the improvements it would have required. The window has some impact on Mrs X, but the impact is limited because of the window’s size, sill height and the angle at which it faces the rear of her home.
- Mrs X would like the Council to revoke or modify its planning permission, but the Council has decided not to and provided its reasons. We are not an appeal body to decisions that are made without fault. The Council has considered Mrs X’s request, its powers and the wider circumstances. This is the process we would expect. The decision whether to revoke is a matter for the Council’s discretion and I find no fault in the way it made this decision.
- The Council has offered Mrs X £500 as a remedy. I have considered the impact on Mrs X’s amenity the ongoing injustice caused and consider this to be an insufficient amount to remedy the injustice caused. I will recommend a more appropriate remedy below.
- The Council says it has improved its planning application processes to reduce the risk of the faults reoccurring. However, although it found evidence of delays and poor communication, it has not reviewed its complaints handling processes. It should now do this.
- Within one month of the final decision the Council will:
- Write to Mrs X and offer to pay her £1000 to recognise the failure to include the planning condition to protect her amenity and the ongoing injustice caused by this fault. It should pay this amount to Mrs X if she accepts this offer.
- Provide evidence to the Ombudsman of the improvements it has made to its planning application processes;
- Review its complaints handling processes to identify any improvements it could make to improve communication and reduce delays. It should provide evidence to the Ombudsman that it has done this.
- I have completed my investigation. The Council was at fault. The Council has agreed actions to remedy the injustice caused and to improve its services.
Investigator's decision on behalf of the Ombudsman