Summary: Mrs X complained about the Council’s consideration of her neighbour’s planning application. I found some fault in the officer’s delegated report, but this did not cause Mrs X a significant injustice.

The complaint

1. Mrs X complained about the Council’s consideration of her neighbour’s planning application. She said the Council’s decision was flawed because:
• The location of the development is wrong.
• It did not take account of objections from Mrs X or the Parish Council.
• Inaccurate information was presented.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

5. As part of the investigation I have considered the following:
• Mrs X’s complaint and supporting information;
• The Council’s response to Mrs X’s complaint;
• The Council’s response to my enquiries;
• The planning documents for the recent application;
• The Council’s Constitution;
• The Council’s Local Plan – Development Management Policies.
6. I wrote to Mrs X and the Council with a draft decision and considered their comments before making a final decision.

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What I found

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is needed for any development or change of use of land and may be granted by a Local Planning Authority.
8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations suggest they should not.
9. Planning considerations include things like access to the highway, protection of ecological and heritage assets and the impact on neighbouring amenity.
10. Councils need to provide evidence to show they have considered the material planning considerations. This evidence is normally found in the case officer’s report and the planning decision notice.
11. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission.
12. When considering complaints about planning applications, we look for evidence the Council followed a proper process before making its decision. We expect to see evidence the Council has identified the material planning considerations raised by the application and properly considered them. The weight an officer gives to those considerations is a matter for their judgement. The Ombudsman will not come to a view on the merits of the planning application. We cannot criticise an officer’s professional judgement or assessment of the application if there is no evidence of fault in how they reached that judgement.
13. Planning application decisions in East Suffolk are delegated to the Head of Planning and Coastal Management (Head of Planning).
14. For decisions taken under delegated authority the case officer will prepare a brief written report of key issues and a recommendation. This will be considered by a senior officer who has delegated authority from the Head of Planning. They may decide the application.
15. In cases where the Parish Council object, the Council will place the application before its Planning Referral Panel.
16. The Planning Referral Panel is a consultative panel made up of the Chair and Vice Chair of the area planning committee and the Head of Planning. Its purpose is to decide whether the application should go before the planning committee or remain at delegated officer level. The final decision on this rests with the Head of Planning. The Council will record all consultations with the Planning Referral Panel.
17. The Council’s website confirms anyone can object to a planning application. It will publish comments on its public access website the next working day after submission. The Council confirms it will only take account of material planning considerations when deciding an application.

What happened

18. Mrs X wrote to the Council on 30 November 2017 about her neighbour’s development (a carport) which did not have planning permission.
19. The Council investigated and told Mrs X’s neighbour to put in a retrospective planning application. Mrs X’s neighbour put in their application on 24 April 2018.
20. The Council sent a letter to residents on 25 April 2018 seeking comments on the plans. The letter told residents of proposed paving and fencing of a car parking area. Residents had until 16 May 2018 to comment.
21. On 29 April 2018 the Parish Council emailed the case officer to ask them to extend the deadline for its response. The Parish Council was due to meet on 21 May to discuss the proposal and asked to the Council to wait until 25 May for its comments.
22. The Case officer replied on 2 May 2018. They said they were happy to extend the deadline for consultation.
23. Mrs X sent an objection letter to the Council on 15 May 2018. She said:
• The development dominates the street scene.
• Materials used are not in keeping with the area.
• It detracts from the character of the area.
• It impacts on her outlook.
• She has suffered a loss of amenity.
• There are problems with water drainage and build-up of water.
• It may impact on legal rights she has over the land where the development lies.
• Sewage pipes under the development may not have been considered when erecting the structure.
24. The Parish Council filed objections on 24 May 2018. It also asked the Council to put the application before the planning committee.
25. The Council’s delegation panel met on 5 June 2018 and confirmed officers could decide the application.
26. Before that meeting, the case officer circulated an agenda. This confirms the objections of the Parish Council and provides details of those objections:
• The land on which the car port lies is separate to the applicant’s land and is immediately next to land owned by another resident.
• The style and height are out of keeping with the street scene.
• The scale and weight of the development, built without approval, conflicts with the appearance of bordering properties and goes against policies in the local plan.
• No drainage provision to deal with water run-off, which the Parish Council understands is impacting a bordering property.
• The size and dimensions of the structure suggest some added development, such as a roof, is intended, contrary to policies in the local plan.
• There are restrictive covenants on this land for neighbouring residents.
27. The agenda also confirms the thoughts of the officer, which mirror the considerations detailed in the officer’s report (below). The officer considers there will be some impact on the neighbouring property as the development is visible, but painting the structure would reduce visibility, and the Council can impose a condition to ensure acceptable drainage.
28. The officer stated legalities of land transfer were not material planning considerations and there would be minimal impact on existing sewage pipes due to the nature of the development.
29. On 5 June 2018 the case officer emailed the Parish Council to confirm the Referral Panel discussed the application. It decided not to take the application before the planning committee because the Council can place suitable conditions on the application.

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Delegated officer report

30. The officer’s report confirms the Council consulted the Parish Council on 25 April 2018. It replied on 24 May 2018.
31. It states the Council consulted one neighbour, but there are no listed objections, letters of support, or other representations.
32. The report confirms the officer assessed the proposal against all material considerations, policies and comments received.
33. Under consultations, the officer states the Council received no comments from the Parish Council.
34. The report confirms the application came to the attention of the planning department through an enforcement enquiry. The Council considered the development needed planning permission because it is not on land joining the applicant’s home.
35. The officer states the materials used for the development are wood, which is acceptable in this location due to surrounding shrubs and trees, which provide screening from surrounding houses.
36. The applicant uses the development for parking. The officer considers the development does not lie next to an area used by neighbouring properties for amenity space, nor is it located next to habitable rooms or windows. The officer considered the impact on neighbouring amenity to be minimal.
37. The officer states concern about visibility splays in accessing the development from the highway but considers it to be acceptable as there have been no objections from the Parish Council or neighbouring properties on this point.
38. The officer confirms the Planning Referral Panel discussed the application due to the objections received, but confirmed officers could decide the application.
39. In approving the application, the officer imposed the following conditions:
• Within three months the applicant must provide details of the paint they intend to use to ensure satisfactory appearance for visual amenity.
• Vehicular access is to be bound with a properly surfaced material for highway safety.
• Within three months details must be submitted showing means to prevent discharge of surface water to prevent hazards on the highway.

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The complaint

40. Mrs X complained to the Council on 25 March 2019. She raised the following questions:
• Why the comments section in the officer’s report was blank and shows no objections.
• Considering this, the Council cannot have assessed the application against comments received.
• She said plans were wrong, as the development has four poles and two lights, not two poles and one light, and the location of the development is wrong.
• She said the development is visible from houses and is next to an area used for amenity space.
41. The Council provided its stage one response on 24 April 2019. It said the Parish Council sent its objections late. It apologised for not specifically referring to Mrs X’s objection in the officer’s report.
42. The Council said officers consider all relevant material planning considerations and the report sets them out, plus applicable policy, including visual and residential amenity which Mrs X referred to.
43. The Council said the distance to Mrs X’s property exceeds the distance of 24 metres it looks for in planning cases. The development is next to the front garden of Mrs X’s second property, but front gardens are not amenity space in planning.
44. The Council confirmed members of the planning committee considered the design plans and the Parish Council objections at the Referral Panel meeting. The location of the proposal is explained in the report to the Referral Panel. The Council said some of Mrs X’s representations are not material planning considerations.
45. Mrs X asked the Council to consider her complaint at stage two of the process on 17 May 2019. She queried why the case officer did not include her objections and the Parish Council’s objections in their report. She also asked how the Council assessed all relevant considerations if they have the development in the wrong location.
46. Mrs X said the Council was wrong to say the development is not next to an area used for amenity space, and the distance to Mrs X’s second property is only 1.5m. She said only one side of the development is next to her front garden and two sides are next to the rear garden.
47. The Council sent its stage two response on 6 June 2019. It confirmed the Parish Council’s comments were late, but the officer considered them. Members at the planning meeting saw all documents and plans filed, plus photographs from the officer’s site visit. The Referral Panel’s decision took account of all available information, including the officer’s report.
48. The Council said the officer gave correct weight to their assessment of the potential impacts on areas of the garden closest to the proposal. There must be clear material harm to refuse planning permission and there was no justification here. It said it cannot refuse permission just because neighbours and the Parish Council object. The officer considered all matters and made a sound decision.
49. Mrs X brought her complaint to the Ombudsman on 19 August 2019 as she remained unhappy with the way the Council decided the application.

Response to my enquiries

50. The Council has confirmed it received Mrs X’s letter of objection dated 15 May 2018. It made the planning decision on 7 June 2018. The Council said it did not upload Mrs X’s objections to the planning portal due to a technical issue. The letters were on the planning application database and the planning officer did consider them.
51. The Council also said it should have included Mrs X’s comments within the summary of consultation responses part of the report to the Referral Panel. However, the Council considers it clear the officer was aware of Mrs X’s objections because the last two paragraphs of the report to the Referral Panel refer to issues Mrs X raised about the legalities of land transfer and sewage pipes.
52. The Council accepts the case officer’s report does not refer to the objections received in the considerations section. However, the officer’s report does mention an objection, and this shows the Council logged it on its database. It said reports are drafted through the Council’s database so the officer would have been aware of the objections when writing the report.
53. The Council said it is unfortunate the officer’s report doesn’t refer to the comments from the Parish Council. However, it is clear from the report to the Referral Panel the officer was fully aware of the Parish Council’s views and they were included in full to the Referral Panel.

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Analysis

54. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made. We cannot question the merits of the decision the Council has made or offer any opinion on whether we agree with the judgment of the Councils’ officers.
55. The Council confirmed it received Mrs X’s objections but did not upload them to the online planning portal due to a technical issue. The delegated report states there were no objections from neighbours. Mrs X objected but the officer’s report did not confirm her objections or refer to them when considering the impact on residential amenity. That was fault.
56. The delegated report confirms the Council consulted the Parish Council and it replied. However, the report also states no comments were received from the Parish Council during the consultation period. The Council recognised this but said the officer did consider the Parish Council’s comments. The delegated report is confusing and misleading about the Parish Council’s response. That was fault.
57. Mrs X is unhappy at what she considers are errors within the delegated report about the location of the development. The case officer visited the site and took photographs. I am satisfied the officer was aware of the location of the development and could take a view on its impact on neighbouring properties. The Referral Panel saw the plans, the photographs, the objections and the case officer’s view.
58. Mrs X says the case officer’s assertion the development is not located next to an area used by neighbouring properties, habitable rooms or windows is factually inaccurate. The development borders the front and rear gardens of Mrs X’s property and is visible from the patio and conservatory to the rear of the property. The Council correctly told Mrs X front gardens are not considered amenity space, but it was silent about the rear garden of the property. On the evidence seen, I agree with Mrs X the statement is inaccurate. That was fault.
59. Unfortunately, the omissions and lack of attention to detail in the delegated report undermined Mrs X confidence in the Council’s decision.
60. However, the case officer did consider the material planning considerations in the delegated report. The delegated report also confirms the Planning Referral Panel was triggered by objections received. This shows the case officer was aware of the objections.
61. The Parish Council’s objections are stated in the agenda to the Referral Panel and I have seen correspondence between the Council and Parish Council about this. The application would not have been put before the Planning Referral Panel if there had been no objections from the Parish Council. This shows the Council did consider the Parish Council’s comments.
62. The case officer referred to issues raised by Mrs X about her legal rights and sewage pipes in the agenda prepared for the Planning Referral Panel. As above, the case officer also stated the objections from the Parish Council. The Parish Council’s objections closely mirror the objections made by Mrs X. On balance I consider the Council did take account of Mrs X’s objections when making its decision.
63. I found the officer who made the decision properly examined the relevant material planning considerations. The officer acknowledged there will be some impact on the neighbouring property as the development is visible, but painting the structure would reduce visibility. The officer considered the impact to be minimal. The officer’s views differ from the views of Mrs X, and the Parish Council, but this is a matter of professional judgement. I cannot question the merits of the officer’s decision to recommend approval where they have taken the material considerations into account.

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Did the fault cause an injustice?

64. Where we find fault in the decision-making process, we must decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the result would have been different.
65. On balance, the evidence I have seen shows the Council did consider the objections from Mrs X and the Parish Council and did assess the relevant material planning considerations. The issues were also discussed with the Planning Referral Panel. While I appreciate Mrs X’s frustration, I consider the faults did not impact on the decision. Therefore, the fault did not result in any significant personal injustice to Mrs X.

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Action already taken

66. The Council told me it has introduced a new report template which has blank consultation boxes for the officer to complete. This acts as a reminder to the drafting officer, and the officer who signs off the report, to check the consultation responses.
67. The Council also held training for its officers on use of the new templates.

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Final decision

68. I have completed my investigation. I found there was some fault in the officer’s delegated report, but this did not cause Mrs X a significant injustice.

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Investigator's decision on behalf of the Ombudsman