Summary: Mr X complains the Authority wrongly granted planning permission to develop outbuildings at a neighbouring property and failed to take enforcement action in relation to breaches of planning control. There is no evidence of fault in the way the Authority determined Mr X’s neighbour’s planning application. Nor is there evidence of fault in the way the Authority considered breaches of planning control or the retrospective application.

The complaint

1. The complainant, whom I shall refer to as Mr X complains the Authority wrongly granted planning permission to develop a barn at a neighbouring property. Mr X asserts the development was contrary to planning guidelines and did not meet the Authority’s own Core Policies. He is also concerned about procedural irregularities in the way the application was considered.
2. Mr X also complains the Authority wrongly discharged a condition requiring a full structural survey and condition report based on inadequate information.
3. In addition, Mr X complains the Authority failed to take enforcement action in relation to breaches of planning control and then wrongly granted a retrospective planning application.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with an authority’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 have considered the complaint and the documents provided by Mr X and discussed the issues with him. I have also sent a statement setting out my draft decision to Mr X and the Authority and invited their comments.

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What I found

Key facts

7. In 2018 Mr X’s neighbour, Mr Y submitted a planning application to convert a stable block into residential accommodation. Mr X and other neighbours raised objections to the proposed development. Mr X’s concerns included:
• The application was littered with errors and Mr Y had misrepresented the curtilage to his property and overstated his ownership of the site;
• The nature of the development was not suitable for the area;
• The submitted plans did not include measurements and there was no confirmation of the roof height;
• The proposed rooflights would overlook the frontage, garden and patio area of Mr X’s property;
• Additional parking spaces would impinge on the access and amenities of neighbouring properties;
• The proposal would increase traffic flow, and noise and disturbance for neighbours;
• Potential for the units to be used as holiday accommodation in the future; and
• The proposal did not protect the residential amenity of residents or foster the economic wellbeing of the community.
8. Mr X also employed a town planning consultant to make representations on his behalf. The consultant raised concerns about the proposed roof lights; the effect of changes to land levels on adjacent land and buildings; inadequate parking and turning space; overlooking; and noise disturbance. He also noted Mr Y had not provided a Design and Access statement, a Heritage statement, a structural survey or rear elevations, all of which he asserted were necessary.
9. As part of their consideration of the application the planning officer visited and took photographs of the site. Mr X invited the planning officer to view the site from his property, but the officer did not consider this necessary. Mr Y provided amended plans showing proposed parking spaces and amendments to the ownership boundary.
10. The officer assessed the application and prepared a report for the planning committee recommending approval. The report sets out the responses from statutory consultees and neighbours, the background to the application, and the relevant planning policies.
11. The report also sets out the planning officer’s consideration of the main issues. In terms of the principle of development the officer noted the proposed accommodation would remain in the same ownership as the main dwelling and the applicants would have responsibility for those occupying the accommodation. The officer considered this would be similar to the provision of annexe accommodation which Development Policy 19 supports in principle.
12. Subject to a condition requiring the accommodation to be managed and controlled by the occupier of the main dwelling the officer considered the application was acceptable in principle.
13. The officer considered the design and impact on the conservation area were acceptable. They noted there was no validation requirement for a structural survey in this instance. But given the concerns raised by neighbours the officer suggested imposing a condition requiring a structural survey be carried out before works started. This would ensure the proposal was for the conversion of the outbuilding rather than its demolition and rebuilding, which would be contrary to Core Policy and Development Policy.
14. In considering the impact on residential amenity, the officer noted the proposal was quite modest and considered it unlikely the conversion would significantly increase any noise and disturbance levels at the site. The officer considered it unlikely that increasing the height of the store section of the development would have an adverse impact on neighbouring properties. The proposed roof lights were 2.6 metres above floor level and designed to provide additional light rather than an outlook. The officer was satisfied they would not afford any overlooking of neighbouring properties.
15. The officer also considered highway safety and noted the Highway Authority had not objected, provided the accommodation remained as annexes and ancillary to the main dwelling. The applicant had proposed parking spaces and the officer did not consider there would be significant increased vehicle movements to and from the site.
16. Shortly before the planning committee meeting Mr X raised concerns of collusion between the Authority and Mr Y regarding the date Mr Y had submitted a letter. Mr X asserted that although a letter from Mr Y was dated the beginning of the month, it had not been created on the planning system until much later in the month. Mr X was concerned the Authority had delayed in adding the letter to its website and had entered it into a chronological list of correspondence based on the wrong date. This meant residents were unable to comment on it.
17. The Authority advised Mr X it had received Mr Y’s letter on the date stated on the letter and the planning officer had uploaded it to the website on their return from leave later that month. There was no evidence of impropriety.
18. Mr X attended the planning committee meeting and spoke against the proposal. He asked the committee members to visit the site and view the proposed development from neighbouring properties. He asserted the residents’ objections had been marginalised and urged the committee to decide the application based on the Park’s core values. Mr X told the committee the proposal failed on three Core Policies and a Development Policy
19. Mr Y was due to speak at the committee meeting, but his partner Miss Z, spoke in his place. Mr X is unhappy the committee allowed this as Miss Z had not registered to speak. He also complains that Miss Z’s presentation to the panel did not refer to planning issues but instead focussed on the benefits for fostering and young people leaving foster care.
20. The committee members voted against a site visit, and in favour of granting planning permission, subject to conditions.
21. Mr X made a formal complaint to the Authority about the behaviour of officers and some committee members at the planning meeting. Mr X questioned how officers could form an impartial, balanced view without viewing and photographing the site from neighbouring properties. He asserted the officers’ recommendation and presentation were biased in Mr Y’s favour and did not live up to the principles of democracy, impartiality and transparency.
22. Mr X felt officers had marginalised and disregarded residents’ objections and had wrongly determined they did not outweigh the benefits of the proposal. He was concerned the presenting officer had led the committee away from discussions about dominance, overlooking and the impact on residents’ amenity and focussed only on the positives from the applicant’s viewpoint.
23. In addition, Mr raised concerns that Miss Z had been allowed to speak and that a local councillor who had registered to speak was not called at the correct time. Mr X was critical of the conduct of committee members and felt they had pre-determined the matter based on fostering issues rather than planning considerations.
24. Mr X subsequently raised further concerns about over familiarity between the planning officer and Mr Y, and a proposed minor amendment to a door. Mr X also set out his specific concerns about individual officers and members of the planning committee and reiterated his view that the proposal was at odds with core policies.
25. The Authority advised Mr X it would respond to his concerns about committee members under a separate process and consider the other issues via its complaint procedure.
26. In its response to Mr X’s complaint the Authority also reviewed Mr X’s concerns about the date of a letter from Mr Y and when it was added to the Authority’s website. The Authority confirmed it received the letter by email on the date on the letter and acknowledged it the same day. It is the planning officer’s role to decide whether new information from an applicant warrants re consultation and whether it should be uploaded onto the Authority’s website. As the planning officer was on leave, they considered the letter when they returned a couple of weeks later. The letter was then converted to a PDF document and uploaded onto the website. The Authority confirmed it had not deliberately hidden the letter and that there was sufficient time before the planning committee meeting for any interested parties to consider it.
27. The Authority then dealt with Mr X’s concerns in turn. It did not consider there were any procedural irregularities in the validation of the application. It explained it did not have the ability or information to check land ownerships on all planning applications. The Authority confirmed it had validated the application based on the submitted plans and certificate of ownership but had received amended plans which it presented to the planning committee. The Authority considered the submitted plan were acceptable and used an acceptable scale so that the application could be validated and determined.
28. There was no requirement to submit a design and access statement for this application. And although the Authority’s validation list for this type of application requires a structural survey, officers had exercised judgement in not requiring one. In order to ensure the integrity of the fabric of the existing building was maintained it had however imposed a condition requiring the applicant submit a structural survey before works began.
29. In relation to the presentation at the committee meetings the Authority was satisfied the photographs and plans used were an adequate representation of the site. It also noted that if members of the committee were uncertain about the relationship with other properties, they could have voted to visit the site.
30. The Authority explained that planning officers are required to use their professional judgement and objectively assess the planning merits of the proposed development. They are not expected to produce a report which is neutral or of equal weight in favour of and against an application. Rather they are expected to make recommendations for approval or refusal of applications. The planning committee members will then reach their own view on the application.
31. Mr X was not satisfied by the Authority’s response. He did not accept the Authority’s explanations or that officers’ actions were based on their professional judgement.
32. Mr X contacted the Authority again in early 2019 to express concerns about the structural survey Mr Y had submitted to discharge a planning condition and unauthorised roof lights in the rear elevation.
33. Mr X asserted the condition required a full structural survey and condition report, but the submitted report was only a record of the general condition of the building. He was concerned that the report made assumptions about the foundations and subsoils and questioned why the planning officer considered this was adequate to discharge the condition.
34. The Authority advised that given the nature and scale of the building and that the purpose of the condition had been met it was satisfied it was reasonable and correct to discharge the condition. The Authority also considered that had they refused to discharge the condition Mr Y would have been successful if he appealed to the planning Inspectorate.
35. In relation to the windows in the rear elevation, the Authority confirmed they were unauthorised, and it had asked Mr Y to explain how he intended to address this. Mr X asked the Authority to take enforcement action to have the windows removed.
36. Mr Y had also installed windows and doors which the Authority had not approved and were not in line with the approved plans. He submitted a retrospective application to retain these windows and doors and the additional windows in the rear elevation.
37. The planning officer considered the application and prepared a report for the planning committee recommending approval. The officer considered that, subject to several minor amendments to improve the appearance of the building, the development as built was acceptable.
38. Mr X objected to the application and spoke against it at the planning committee meeting. The planning committee approved the retrospective application, subject to conditions.
39. Mr X maintains the authority was wrong to grant the original application, and the retrospective application. He has asked the Ombudsman to investigate his concerns, about the planning process and decision to accept an inadequate structural report to discharge a planning condition.

Analysis

40. Mr X has provided a significant number of documents in support of his complaint, including correspondence with the Authority, documents relating to the planning applications and information he has obtained through a freedom of information request. I do not consider it necessary to request any additional information from the Authority.
41. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Authority has made or offer any opinion on whether we agree with the judgment of the Authority’s officers. Instead, we focus on the process by which the decision was made.
42. In deciding an application, Authorities must publicise all planning applications so people may comment on the proposed development. The opportunity to make representations is not the same as being consulted. Authorities must consider what people say about the proposals, but they need not agree with those comments. Authorities must also look at planning policy and all other relevant planning matters affecting the development often weighing and balancing competing views and interests to reach a planning decision.
43. Provided it has regard to all material considerations, it is for the decision maker to decide what weight to give to the material considerations in each application.
44. Mr X makes a serious allegation against the professional integrity of the officers and alleges that they were not impartial. Officers are expected to take a view on the acceptability of a proposal and provide unbiased and professional advice. This includes making a recommendation to either approve or refuse an application. The officer’s report sets out how they considered the Authority’s own policies, the material issues, and consultee and neighbour responses. Mr X disagrees with the officers’ assessment but here is no evidence of fault in the way they considered these issues.
45. The officers’ recommendation is not binding on the planning committee, who will make their own decision on whether to approve or refuse the application. Mr X had the opportunity to speak at both planning committee meetings and raise his concerns directly with the members.
46. Mr X is unhappy with the conduct of the meeting to consider the original application, while the Authority considers officers and members acted appropriately. I am unable to reconcile these differing views. As the Authority does not record its committee meetings, I am unable confirm what was said or done, or the nature and tone of any comments or actions.
47. The decision to discharge the condition requiring a structural survey and condition report is also a matter of the officers’ professional judgement. Mr X disagrees with this decision, but the Authority has explained the basis for its decision. The Authority is satisfied the report Mr Y submitted is adequate to meet the purpose of the condition, that is to ensure the conversion of the barn, rather than its demolition and rebuilding. And that a refusal would not have been defensible if Mr X had appealed to the Planning Inspectorate. There is no evidence of fault in the way the Authority reached this decision.
48. Mr X is unhappy the Authority dealt with the application to discharge conditions under a different reference to the original application. This is not an unusual practice and does not amount to fault. A search for applications using Mr Y’s address includes this application, and it is listed under the site history when viewing the original application on the Authority’s website.
49. There is no dispute the doors and windows fitted did not comply with the approved plans for the original application, or that the windows in the rear elevation were unauthorised. But planning authorities are not required to take formal enforcement action in relation to every breach of planning control. They must consider whether it is expedient to do so. If as in this case, the developer submits a retrospective planning application for the work done the Authority has to consider it on its merits in the normal way. It cannot be prejudiced against the application just because it has been made retrospectively. Officers assessed the retrospective application and considered it acceptable, subject to some changes. Mr X disagrees with this recommendation and the planning committee’s decision to approve the application. But there is no evidence of fault in the way it was taken.

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Final decision

50. There is no evidence of fault in the way the Authority determined Mr X’s neighbour’s planning application. Nor is there evidence of fault in the way the Authority considered breaches of planning control or the retrospective application.

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Investigator's decision on behalf of the Ombudsman