Summary: There was no fault by the Council in a complaint about its decision to grant planning permission for a development close to the complainant’s relative’s home in 2019.

The complaint

1. Mr X complains on behalf of a relative. Mr X complains about the Council’s decision to grant planning permission for a development close to his relative’s home. Mr X complains about two planning applications; one granted permission in 2018 and another in 2019.
2. Mr X says:
• A planning application determined by the Council in 2018 was invalid and should not have been determined by officers or the planning committee should have been advised that the applicant did not own all the land.
• Officers of the council were not impartial in their handling of the 2018 and 2019 applications because they continued to treat the 2018 application as valid and advised objectors to the 2019 application not to refer to the 2018 planning permission. However, the officers’ report and presentation to the committee made various references to the earlier decision and members of the committee were advised that their hands were tied by it.
• Prior to the meeting an officer was overheard wishing the applicant good luck.
• Local councillors said the proposed development is unsuitable but they were deprived of the opportunity to review the 2018 application and debate it in an open and transparent way.
• Members of the planning committee were open in saying how they felt powerless to refuse the 2019 application because they understood the site could be developed under the 2018 permission.

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What I have investigated

3. I have only investigated matters pertaining to the 2019 planning permission. My reason for not investigating Mr X’s concerns about the 2018 planning permission is given in the final section of this statement.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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

8. I reviewed the complaint and background information provided by Mr X and the Council. I considered the details of the planning application granted permission in 2019. I sent a draft decision statement to Mr X and the Council and invited their comments on it.

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What I found

9. I refer to the 2018 planning application for background only. The Council received a planning application that proposed demolition of the existing house and erection of five new houses with new access, parking and landscaping. The Council granted planning permission for the development.
10. Mr X says the application conflicted with local plan policies and should have been made invalid because the applicant declared he owned all the land whereas the proposal would encompass some of his relative’s land. Mr X says a councillor sought to refer the application to the planning committee but was ruled out of time. The Council granted planning permission but the applicant could not implement the permission because his relative did not give consent for the use of her land.
11. The applicant submitted another application in late 2018. The application was determined in 2019 and I refer to it as the 2019 application. This application proposed demolition of the existing house and garage and erection of a single house and new garage, realignment of vehicular access and landscaping.
12. A planning consultant objected to the application on behalf of Mr X’s relative. The consultant said the application proposed removal of a red oak tree which was subject to a tree preservation order. The consultant said loss of the tree would have a severe impact on the amenity of the surrounding area. The proposed entrance required removal of three trees at the front of the property. The consultant said this would be a blow to the amenity of the surrounding area and the conservation area.
13. The consultant said the applicant’s woodland management plan did not explain the trees that would be removed in a wooded area. The management plan did not take account of the ecological appraisal in relation to the identification and protection of dormouse habitats in the woodland area.
14. The consultant said there was no evidence in relation to drainage on the site. The consultant asked planning officers to visit Mr X’s relative’s home to note changes in elevation between the two sites.
15. The consultant also referred to a problem with a subterranean telephone cable if the applicant constructed a new entrance to the proposed property.
16. When it was referred to the planning committee, Mr X registered to speak at the committee meeting.
17. The planning officers’ report for the planning committee set out national and local plan policies that applied to the application. Planning officers sought the comments of the landscape and biodiversity officer as well as the tree officer.
18. The landscape and biodiversity officer considered the proposal’s impact on protected species and biodiversity. The officer noted the area was essentially garden although it contained some areas of semi-natural habitat at the periphery and some mature trees. The officer said the value to wildlife would depend on the management scheme employed by the owners.
19. The biodiversity officer noted the ecological appraisal was carried out by competent professionals to a recognised methodology. The officer said there was a low possibility that wildlife including dormice might be encountered during the works but a scheme of avoidance and mitigation could be secured by condition.
20. The tree officer commented on trees within the application site but I will not rehearse all his comments here for the sake of brevity. I note the officer’s comments on the red oak tree. The officer said the red oak tree had been included in a tree preservation application in 2018 and that was supported by the previous tree officer. However, the previous tree officer recognised the limited potential of the specimen and had recommended a replacement tree be planted in case the red oak tree had to be removed in future. The tree officer said removal of the red oak tree would maximise room for the growth of a replacement tree. The tree officer concluded the proposals on tree removal and planting were acceptable subject to conditions.
21. The committee report noted the principle of demolishing the existing building and construction of a new building for residential use had been granted with the 2018 permission.
22. The committee report addressed the application’s impact on the conservation area, arcadian area and area of landscape importance. The report explained officers’ view that the proposed house would be an improvement on the existing house.
23. The report addressed the proposal’s impact on Mr X’s relative’s home. The planning officer explained the proposed building would be set back in its plot compared to the existing house. It would be in the same location as the previously approved scheme in 2018. The overall mass of the building would be smaller than the approved scheme but it would be 0.8 of a metre higher. The officer explained the increase in height would not result in an overbearing impact or loss of privacy to adjoining properties when compared to the scheme granted permission in 2018.
24. The report explained the application proposed removal of a red oak tree which provided screening between the application site and Mr X’s relative’s home. The report noted the applicant proposed planting a large specimen oak tree which would be either 6 or 10 metres in height. Another oak tree would be planted close to the rear boundary as well a holly trees. The report said the proposed tree planting would provide screening between the two properties. The report said the proposal would not unduly harm the residential amenity of adjoining occupiers in terms of loss of privacy, loss of daylight/sunlight or being unduly overbearing due to the length of the rear garden.
25. The report noted the application site shared a driveway with two other properties including Mr X’s relative’s home. But the report noted land ownership rights and rights of way were not material planning considerations.
26. The report noted concerns about the proposal’s impact on flooding and drainage. The report said the site does not lie in an area at high risk of flooding although drainage was often problematic at times of high rainfall. The report said the proposed house, extent of hard surfacing and tree loss would not result in a greater flood risk when compared to the 2018 application.

Findings

Officers of the council were not impartial in their handling of the 2018 and 2019 applications because they continued to treat the 2018 application as valid and advised objectors to the 2019 application not to refer to the 2018 planning permission. However, the officers’ report and presentation to the committee made various references to the earlier decision and members of the committee were advised that their hands were tied by it.

27. I shall address only the complaint of partiality in the handling of the 2019 application.
28. It is established judicial precedent that decisions on previous planning applications on an application site are material planning considerations. This means a local planning authority must take account of previous decisions and determine the weight to be placed on them. So the Council did not act partially because planning officers took account of the 2018 decision.
29. It was for officers to determine the weight to be placed on material planning considerations such as the 2018 decision. Officers, in this case, considered the Council could not refuse planning permission for a single house on the site given it had granted planning permission for five houses in 2018.
30. It is not for the Ombudsman to substitute his judgement for that of the Council’s officers in the absence of fault in the decision making process. In this case, I am satisfied the Council properly considered the advantages and disadvantages of the proposal including the objections it received. I am satisfied the committee report provided reasoned justification for the decision made by the committee. I do not find fault in the process leading to the decision.
31. Mr X has not provided any evidence to support his claim that the Council instructed objectors not to refer to the 2018 decision. If his claim is based on a telephone conversation between another party and a council officer then I cannot conclude there is fault by the Council based on a second-hand account of the telephone conversation.

Prior to the meeting an officer was overheard wishing the applicant good luck

32. I do not find there is fault by the Council because one of its officers was courteous in wishing the applicant good luck.

Members of the planning committee were open in saying how they felt powerless to refuse the 2019 application because they understood the site could be developed under the 2018 permission

33. It was for members of the committee to debate and comment on the proposal as they saw fit at the meeting. So it is not for me to comment on whether use of the word powerless was appropriate if that was the word members used to describe their feelings.
34. Members of the committee were not powerless to refuse planning permission. If they felt there were valid planning reasons to refuse planning permission then they could have provided those reasons and voted on a motion to refuse planning permission.

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Final decision

35. I closed this complaint because I did not find fault by the Council.

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Parts of the complaint that I did not investigate

36. I did not consider Mr X’s concerns about the 2018 planning permission and his linkage of alleged failings with that application to the 2019 application.
37. These complaints involve matters that occurred in 2017 and 2018. The law requires complaints to be made to the Ombudsman within 12 months of a complainant’s awareness of the subject of the complaint. I am satisfied Mr X’s relative was aware of the matters that comprise these complaints in 2017 and 2018 but Mr X did not complain to the Ombudsman until November 2019. The complaint about these concerns is late.
38. I have considered whether a late complaint should be accepted. The Ombudsman’s Guidance on Jurisdiction says that when deciding whether to investigate a late complaint the following should be considered:
• We are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• We are satisfied that the complainant could not reasonably be expected to have complained sooner.
39. I consider a sound, fair and meaningful decision on whether the Council acted with fault could be made in this case. However, I am satisfied Mr X could reasonably be expected to have complained sooner. Mr X says he had to wait until the 2019 planning permission was granted to realise the extent of a link to the 2018 decision. He therefore complained in 2019 when the matter crystallised.
40. The issues that comprise the complaint about the 2018 application are distinct enough for a complaint to have been made sooner. For instance, the matter of whether the 2018 application should have been validated did not require Mr X to wait until the 2019 application was determined by the Council. Similarly, a complaint about the 2018 decision and the Council’s handling of the application did not require a wait until determination of the 2019.

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Investigator's decision on behalf of the Ombudsman