Summary: Mrs B complains that there was fault in the way the Council consulted on and considered her neighbours’ planning application to extend their home. There was fault by the Council in not re-consulting Mrs B, which meant that she was deprived of the chance to comment on the revised proposals. However, even if the Council had re-consulted Mrs B, the Ombudsman does not consider it likely that the Council would have reached a different decision. The Ombudsman considers that the apology already given and reminders to officers about when to reconsult, and how to respond to planning complaints, are a suitable remedy for her complaint.

The complaint

1. Mrs B complains that the Council:
• did not re-consult her when her neighbours submitted revised plans for an extension, which meant she could not object to the revised plans;
• failed to consider properly the impact on her amenity; and
• delayed in responding to her complaint.

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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. I have considered Mrs B’s written complaint and supporting papers. I have considered the planning papers and complaint correspondence and had regard to the Council’s planning policies. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

The planning system

Planning permission and sustainable development

5. Planning permission is 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.
6. The purpose of the planning system is to contribute to the achievement of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs.

Publicity for planning applications

7. Councils are required to give publicity to planning applications.  The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice or neighbour notification.
8. Where an application has been amended, councils must decide whether further publicity and consultation is necessary in the interests of fairness. They should consider whether, without re-consultation, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the amended application.

Decision making and material considerations

9. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
10. 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. Government statements of planning policy are material considerations.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

13. Mrs B lives in a semi-detached house with fairly large back garden. There is a boundary fence between her and her adjoining neighbours’ house. The boundary fence is not at a right angle to the back of the houses but runs in a straight line at an angle of around 80 degrees towards her neighbours’ house.
14. The neighbours’ house has an existing side and rear extension which projects 3 metres from the original house. It is set back 1 metre from the boundary with Mrs B’s house and extends up to the boundary line on the opposite side.
15. Mrs B’s house has a patio across the full width of the back of the original house. There are French doors serving the living room situated close to the boundary with her neighbours’ property (and existing extension). Mrs B’s house also has a long and narrow, side and rear extension on the opposite side from her neighbours’ house at around 6 metres from the common boundary.
16. In 2016, Mrs B’s then neighbours applied for planning permission to extend their home. The proposals included a single-storey side extension, part single- part two-storey rear extension and changes to the existing roof extension. The proposed rear extension would cover the full width of the site and extend 5.5 metres along the boundary with Mrs B’s home.
17. The Council consulted neighbours but received no response. The Case Officer prepared a report for the Principal Planning Officer to consider the application under delegated authority. The Council refused planning permission because it was considered against policy on two grounds set out in the report:
• the excessive depth of the proposed rear extension would cause harmful loss of light and outlook to the Mrs B’s home; and
• the scale of the combined extensions would be disproportionate, would unbalance the pair to properties and adversely affect the streetscene.
18. In 2018, Mrs B’s new neighbours applied for planning permission for a single-storey side and rear extension. The proposal was for an extension just over 5.5 metres deep up to the boundary on the far side of the neighbours’ property but set in 1 metre along the boundary with Mrs B’s house.
19. The Council again consulted neighbours. Mrs B objected on several grounds which included that:
• the extension would considerably exceed the 3.5 metre depth considered acceptable in the Council’s Supplementary Planning Guidance (SPG);
• the extension would cause a significant feeling of enclosure; and
• there would be overlooking from the proposed side windows.
20. The case officer undertook a site visit and advised the neighbours’ architect that the proposals, as they stood, would be recommended for refusal. She suggested two options to the architect which would make the proposal more acceptable. These were either a full-width 3.5 metre extension, which would comply with the Council’s SPG, or reducing the depth of the extension to 3.5 metres at a set-in in line with the flank wall of the existing extension next to Mrs B’s house. The architect submitted revised plans for a rear extension with set-in, in line with the Council’s second suggestion. The side windows facing Mrs B’s house were removed from the plans and two rear-facing windows added to the step-in.
21. The Council did not consult neighbours on the revised plans. Instead, the Case Officer prepared a report. This described the proposals and relevant policies and set out Mrs B’s objections based on the original consultation. It went on to consider the planning merits of the application. It was considered that the 1.3 metre step-in of the rear 2.3 metres of the extension would make the extension appear less overbearing, allow light to enter the French doors at the back of Mrs B’s house and improve the view along the boundary. The Case Officer’s manager reviewed the application, and the Council granted planning permission under delegated authority.
22. Mrs B complained to the Council about the way it had considered the application. The Council upheld Mrs B’s complaint about the failure to re-consult on the amended plans and apologised for this. It also upheld her complaint about delay in responding to her complaint due to a breakdown in communication. It explained that advisors had already been reminded of the correct process for logging complaints to try to avoid a recurrence of such delay. However, at the second stage of its procedures, it concluded that Mrs B’s complaint should not be upheld, despite admitting failings in the investigation process and delay in the complaint response and again apologising for this.

My assessment

Consultation process

23. The Council has acknowledged that it was at fault in not re-consulting following the change of plans. It is not uncommon for councils not to re-consult neighbours where amendments have been made which are felt to address any grounds for refusal. On many occasions, this will not be fault. However, when considering whether to re-consult, it is important that officers apply the correct legal test to that decision, as set out above. I will therefore ask the Council to remind officers of the correct test.

Consideration of the planning application

24. It is understandable that Mrs B feels aggrieved that she did not have the chance to comment on the revised plans. I also appreciate that she feels that the Council should not have permitted an extension on her boundary and that the approved plans, amended on the suggestion of the Council, are worse than the previous plans which showed the whole extension set back 1 metre from her boundary.
25. I have therefore considered whether it is likely that the decision would have been different had Mrs B been able to comment again.
26. Mrs B’s main concerns were about loss of light and outlook to her living room, and an increased sense of enclosure to the back of her house. She was also concerned about overlooking from the proposed side windows, though this was addressed by the change in plans.
27. The Case Officer explained in the report why it was felt that the changes had overcome the reasons for refusal. The Council did not support a full-length extension, even set back a metre from the boundary from Mrs B’s property. But it was felt that a step-in on each side would improve the appearance and impact on neighbouring properties. In this regard, the Council’s SPG puts no specific restrictions on single-storey extensions with a depth of 3.5 metres up to the boundary line.
28. I appreciate that Mrs B disagrees with the Council’s decision but, as set out above, the Council took into account the relevant policies and planning considerations, including neighbours’ concerns. I therefore see no basis for the Council to have refused permission, even if Mrs B had been able to object to the extension on her boundary.
29. As to the Case Officer giving the architect advice on what would likely be acceptable in planning terms, that is part of a planning officer’s role. I do not consider that the advice provided was inconsistent with the Council’s planning policies.

Complaint response

30. There was delay in dealing with the complaint. The Council has apologised for this and reminded officers of the correct procedures, so I see no reason for further action here. However, the Council’s second stage response is contradictory, in that the Council found fault and apologised but then did not uphold the complaint.
31. I also note the Council’s second stage response stated:

“The purpose of the complaint procedure is to address issues relating to services provided by the Council and not to address the particular merits of a planning application. This is because our Corporate Complaint Policy clarifies that certain types of complaints will not be dealt with through the Council’s complaints procedure because there are other processes more suitable for dealing with them. In this case, if you believe that the decision to grant permission was flawed or unlawful you have the option of challenging this by way of judicial review.”

32. However, the Council’s then and current Corporate Complaints Policy states:

“Certain types of complaint will not be dealt with through the Council’s complaints procedure because there are other processes more suitable for dealing with them, or because they are outside the Council’s control. These include… Appeals against planning consent and enforcement decisions…”

33. The Council commented only briefly in its complaint responses on the process followed in reaching a decision on the application. However, neighbours have no third-party rights to appeal against planning decisions. The Ombudsman would also not usually consider it reasonable for a complainant to have to undertake a Judicial Review in the High Court if they consider that there was fault in the way a planning decision has been made.
34. The courts may provide the only mechanism for overturning a planning decision. But the Ombudsman would consider that it is properly part of a council’s complaints process to provide a mechanism for third party complainants, such as neighbours, to complain about administrative fault in the way that a decision was reached. I consider that the Council should therefore ensure that officers are aware that they should respond appropriately if a complainant has no appeal right against a planning decision.

Agreed action

35. The Council has agreed, within one month of the final decision date on this complaint, to:
• remind planning officers of the correct legal test when considering whether to re-consult on amended plans; and
• remind officers dealing with planning complaints as to how they should deal with complaints about planning issues from third parties.

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Final decision

36. I have closed my investigation on the basis that the agreed actions represent a suitable response to the fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman