Summary: Mr X complained there were flaws in the way the Council considered his neighbour’s planning application. There was some fault in the planning application process, but it did not affect the outcome.

The complaint

1. Mr X complained the Council based its decision to approve a neighbour’s planning application on inaccurate, incomplete or irrelevant planning considerations. He said the Council failed to upload important documents to the online planning portal, mismanaged the process, failed to address objections and did not follow policy.

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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. 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

4. As part of the investigation I have considered the following:
• Mr X’s complaint and supporting information;
• The Council’s responses to Mr X’s complaint;
• The Council’s response to my enquiries;
• Planning documents for the application.
• Relevant local and national planning policies.
5. I wrote to Mr X and the Council with a draft of this decision and gave them an opportunity to comment.

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What I found

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway.
• protection of ecological and heritage assets.
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views over another’s land.
• the impact of development on property value.
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable.

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What happened

10. Mr X lives on a street made up mainly of semi-detached houses. Mr X’s neighbour sought permission to build a new three-bedroom house on their land to the side of their existing house. The land shares a border with Mr X’s house.
11. The Council registered Mr X’s neighbour’s planning application on 16 July 2018 and started consultation with residents and other interested parties, such as local councillors and the highways authority.
12. Mr X wrote to the Council on 25 July 2018 to object to the proposals. On 7 August Mr X sent a petition signed by residents who also objected.
13. Mr X’s neighbour put in amended plans on 14 September 2018. The application was now for a two-bedroom house, not three. Again, the Council consulted with residents.
14. On 17 September 2018 the Council received an objection from another resident on Mr X’s street.
15. Mr X wrote to the Council again on 20 September with further objections. He asked for permission to speak at the planning committee (the committee) meeting. Mr X raised concern about trees near the property and their impact on the structure of the new build house. The Council asked the applicant for revised plans.
16. Further amended plans were filed on 1 October 2018 with a renewable energy statement. The Council consulted residents on 3 October.
17. Mr X put in further objections on 5 October 2018, with a building line document. Unfortunately, the Council failed to upload Mr X’s document to its online planning webpage as it was meant to.
18. A local councillor asked the Council to refer the application to the committee on 14 October 2018. The councillor raised concerns about the principle of development, significant local objection, impact on residents’ amenities and car parking.
19. Mr X’s neighbour sent in updated plans on 22 October 2018. They included a tree survey, which the Council uploaded on to its application webpage.
20. The Council told Mr X on 8 November 2018 it had received the corrected application and site plan. The Council told Mr X the date of the committee meeting and gave details about how to register to speak at the meeting.
21. The committee meeting took place on 22 November 2018, where members decided to grant planning permission.
22. Mr X made a formal complaint to the Council on 20 January 2019. The Council responded on 1 March 2019. It did not uphold Mr X’s complaint.
23. Mr X contacted the Council on 6 April 2019 to express dissatisfaction with the complaint response. The Council escalated the complaint to stage two and sent its final response to Mr X on 17 May 2019.
24. Mr X complained to the Ombudsman on 22 August 2019. He said the Council mismanaged the application process and did not answer some of the questions raised in his objections.

Mr X’s objections

25. In response to the original application plans, and the amended versions, Mr X made the following objections to the Council:
• A detached property is out of keeping with the area.
• The plans do not include shadow drawings. Mr X will lose sunlight to the kitchen and garden.
• There will be an impact on amenity because of overlooking from the new property. Mr X referred to the 45 degree guidance and said the rear windows catch other neighbours windows.
• An extra home will add to existing drainage problems on the street.
• There will be a loss of two roadside parking spaces.
• Mr X said he worried about noise and waste from construction, as well as the well-being of his children studying for exams. He queried who will be responsible for any damage caused during the build work.
• Mr X said the value of his property may decrease and it will feel like a terraced property

The planning officer’s report

26. As part of their assessment, the planning officer confirmed the Council consulted the Highway Authority, the City Council, the Land Drainage Partnership and neighbours.
27. There were no objections received from the Highway Authority, City Council or Land Drainage Partnership. The Highway Authority recommended a condition about pedestrian visibility and cycle storage. The Land Drainage Partnership recommended a condition to control added surface water.
28. After considering the neighbours objections, including Mr X’s, the officer identified the main issues to be:
• The principle of residential development on the site.
• Impact of the proposed development on neighbouring properties.
• Design of the proposed house.
• Quality of amenity for proposed residents.
• Parking, cycle provision and highway safety.
• Sustainable measures
29. The officer’s report quoted extracts from local planning guidance used by the Council and addressed the relevant material planning considerations, as well as various points of objection. Of relevance to this complaint I note the following:
30. The officer confirms the location of the site and that the development is a two-bedroom detached house with two off street parking spaces. They confirm the siting of the property on the street and towards neighbouring properties.
31. The officer addresses the character of the street and how the property would fit in. Distance separation is discussed and there is not considered to be a terracing effect.
32. The officer considers the amenity of the property and the impact on neighbouring amenity. Visual impact is discussed but not considered to be unacceptable.
33. The officer confirms their view the property would not appear overbearing or oppressive. They do not consider there will be a loss of privacy or overlooking on neighbours.
34. The officer discusses carbon emissions and sustainable energy benchmarks.
35. In summary, it is the officer’s opinion the proposals form acceptable sustainable development under policy and local plans when read as a whole. Thus, it is recommended planning permission is granted.

The planning committee meeting

36. The committee meeting took place on 22 November 2018, following a site visit. Mr X spoke against the application and provided members with his shading analysis. He said this showed the development would shade his extension and his daughter’s bedroom. The shading would affect the house and amenity area. Mr X showed members a 3D model of his shading analysis and said his property would be shaded between 9am and 2.30pm.
37. The Council told members its design guide ensures 45 and 25 degree tests are carried out. The Council explained to me that if there was a breach found in the 45 and 25 degree tests then officers will consider whether a detailed lighting assessment is needed. Officers did not say there would be no impact, just that it would not be an unacceptable impact in their view.
38. Members had sympathy about shading, but agreed the proposals met the Council’s criteria and this would be the best use of land. The proposal was voted on and agreed.

The complaint

39. Mr X complained to the Council on 20 January 2019. He said the Council did not properly assess the application. He raised issues with:
• Compliance with planning policy and guidance
• Falsities or errors on the application form
• Wrong addresses on the planning portal, application form, plans and approval.
• Objection documents not handled correctly
• Unanswered questions and objections
• Not complying with local and national planning policies
• Objections not considered
• Didn’t give reasons for not following law, policy or guidance
• Decided based on inaccurate, incomplete or irrelevant planning considerations.
40. The Council responded to Mr X on 1 March 2019. It addressed the above points under the following headings:

Inaccurate or incomplete information

41. The Council said despite the errors in the address on some of the documents, the location plan clearly identifies the site and it is described correctly on the website, in consultation letters, the committee report and decision notice. It also said the plans were changed to a two bedroom property and this was clearly visible on the website and the planning committee report. As such the Council said a fair assessment of the application was made.
42. The Council accepted Mr X’s building line document was not uploaded to its website. It blamed this on an error when sending the content of Mr X’s email to the case officer. The Council apologised for this but said it would not have led to a different result.
43. Following Mr X’s objection about omitting two trees from the plans, the Council said changed plans were filed with a tree survey.

Compliance with planning policy and supplementary planning guidance

44. The Council said the case officer’s report correctly referred to the relevant policy and guidance. It said planning authorities were encouraged to work with applicants to secure development which will improve the economic, social and environmental conditions of the area. It said the areas Mr X referred to were supplementary planning guidance and identified principles for good practice. It said policies and guidance often pulls in different directions and decision makers need to consider whether proposals broadly accord with policies and guidance.

Lack of replies to correspondence and calls

45. The Council said it does not respond to objections, to ensure neutrality, but it did respond to emails from Mr X in October and November. It apologised for failing to return telephone calls and reminded officers of their responsibilities.

Determination of application

46. The Council is satisfied members of the committee gave a comprehensive consideration of objections raised and other matters raised by the proposals. There was a full report to committee members, letters of representation, a site visit, officer presentation, verbal representation from Mr X, questions from members to Mr X and rigorous debate referring to points raised in objection to the proposals.
47. The Council finished by saying it did not consider there had been any fundamental breach of process or that Mr X’s rights of response were denied. Material considerations were identified, weighed and properly assessed.
48. Mr X was not happy with the response and wrote to the Council on 6 April 2019 to take his complaint to stage two.
49. The Council wrote to Mr X on 16 May 2019 with its stage two response. It accepted there were discrepancies in the documentation about the property address. However, as the committee visited the site and Mr X presented objections to the committee the Council said this did not materially affect the decision. It also accepted there were inconsistencies and errors on the application form but did not consider them to be material.
50. The Council repeated its apology for not uploading a document Mr X sent onto its planning portal. It said the relevant information was presented to the committee and did not affect their ability to make a decision.
51. The Council confirmed its apology for not responding to phone calls. It is reshaping its customer contact services. Management of responses to telephone enquiries is a part of this.
52. About the beech tree Mr X said is not mentioned in the tree survey, and its impact on the new build property, the Council points out foundation design and ground conditions are matters for building regulations and are not a material planning consideration when deciding the application.
53. The Council recognised the inconsistency in the paperwork about the number of bedrooms, but said the decision clearly states the committee were deciding on a two bedroom house.
54. The Council said the other matters Mr X raised were good practice or guidance, not requirements, and the committee would view the application as a whole. The Council was satisfied the committee considered the 25 and 45 degree rule, the building line, building orientation, heating system, overlooking, scope to extend, parking and shading.
55. The Council ended by saying Mr X’s complaints relate to details of process or merits of committee decision. The Council did not find any discrepancies or errors in the process which affected the committee’s ability to make a decision and it cannot challenge a planning committee decision.

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Analysis

56. 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.
57. Mr X is unhappy the Council did not respond to all the points made in his objections. We do not expect the Council to respond to objections received, or to answer every point. We expect to see evidence the Council considered the objections, and the material planning considerations, when assessing the application.
58. In this case, I can see before it made its decision, the Council took account of:
• the proposal plans;
• comments from neighbours and other consultees;
• the views of its officers;
• relevant national and local policy; and
• other material planning considerations.
59. The Council followed the process we would expect and took account of the objections and material planning considerations before recommending to the committee. In these circumstances, I find no fault in the way the Council considered the application.
60. Mr X said the Council did not follow planning policy and guidance. The Council must have regard to planning policies, guidance and plans. However, as the Council pointed out, there are often competing interests which mean an application cannot fully comply with policy. We would not expect the Council to rigidly apply policy to its decision in these circumstances. Officers must consider the application as a whole, on its merits, against the purpose and objectives of policies and plans. This will be a judgement call for the officer. The fact Mr X disagrees does not mean the officer hasn’t given proper consideration. I do not find the Council at fault here.
61. Mr X is unhappy the committee favoured the Council’s evidence over his expert shading analysis. The committee considered the evidence, and, in these circumstances, we cannot question the merits of its decision.
62. Mr X highlighted discrepancies and errors in the paperwork, as well as the Council’s failure to upload a document onto its planning portal. The Council accepted it was at fault and apologised. It also apologised for not returning Mr X’s phone calls.
63. Unfortunately, the errors and omission undermined Mr X’s confidence in the Council’s decision. Where we find evidence of 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.
64. The evidence I have seen shows the Council did consider the objections from Mr X and other residents, as well as the other relevant material considerations. A site visit was conducted, and the application was considered at planning committee where Mr X presented his objections. There is no doubt the committee was aware of the location of the site, the number of bedrooms, and what the relevant objections and planning considerations were. I therefore do not consider the committee’s decision was based on inaccurate, incomplete or irrelevant planning considerations.
65. While I appreciate Mr X’s frustration, I consider the faults did not impact on the decision and therefore did not result in any significant personal injustice to Mr X. I also consider the Council’s apologies to be a proportionate response.
66. We welcome the Council’s confirmation it is looking at how it responds to telephone enquiries. It told me a new duty officer service recently went live. The Council may also consider reviewing the way it checks planning applications and handles documents received as part of the consultation process. That might help prevent a repeat.

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Final decision

67. I have completed my investigation. There was some fault in the planning application process, but it did not affect the outcome.

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Investigator's decision on behalf of the Ombudsman