Summary: Mr C complained the Council failed to notify him about a planning application for a large extension near his property and failed to properly consider the application. Mr C says he lost his opportunity to make representations about the application and will suffer from an unacceptable development close to his property which will have a damaging impact on his light, outlook and privacy and which will cause noise nuisance from the use of a nearby fire escape and walkway. We have found fault by the Council but consider the agreed action of an apology, £250, work to agree an enforceable condition for the use of the fire escape and improvements to its notification procedure are enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to notify him about a planning application for a large extension near his property and failed to properly consider the application with particular reference to the impact on his residential amenity.
2. Mr C says because of the Council’s fault he lost his opportunity to make representations about the application. Mr C also says he will suffer from an unacceptable development close to his property which will have a damaging impact on his light, outlook and privacy and which will cause noise nuisance from the use of a nearby fire escape and walkway.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

8. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
9. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
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.
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. General planning policies may pull in different directions for example 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.

Key events

12. The Council received an application in August 2018 for a three storey rear extension to provide nine flats. The Council granted planning permission subject to conditions in December.
13. 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 statutory requirement was also for a site notice or neighbour notification. The Council’s Statement of Community Involvement (SCI) sets out that the Council will send neighbour notification letters for all planning applications.
14. The Council has provided details of its publicity for the application. This consisted of a site notice dated 29 August 2018 and a photograph showing this posted on a traffic pole. I am satisfied the Council met the statutory consultation requirements for the application.
15. 
    The Council has also provided the address list for its neighbour notification letters. This list does not include Mr C’s address or the address of other properties in his building. The address list does include Mr C’s building but not the individual flats within the building. The Council accepts it did not send a neighbour notification letter to Mr C’s address or other residents of his building as required by its own SCI. This is fault.
16. The Council has explained that Mr C’s property was one of several built in a former office building, permitted as part of an office-to-residential prior approval application in 2015. The Council’s planning database shows that the addresses for the new flats were created in October 2017 and it is understood this is when the conversion of Mr C’s property (and others in the block) was completed.
17. The application to which the complaint relates was validated in August 2018 and followed a previous application made on the same application site in May 2017 but which was subsequently withdrawn in March 2018. The Council has confirmed that if the application to which the complaint relates had been registered with a new neighbour notification process when it was validated in August 2018 this would have picked up the residential neighbour addresses created in October 2017. However, when registering applications on a site where there has been a planning application determined within the previous year, the Council’s system carries forward all those notified, or who made representations on the previous application. This system was developed to ensure interested parties from a previous application were notified of a subsequent application to ensure they were not excluded. This process will miss new properties created since the previous application and requires these to be picked up by the case officer at their site inspection or through returned mail citing an incorrect/invalid address.
18. The case officer did not identify the new properties which required notification at their site visit which meant Mr C and his immediate neighbours were not notified of the application. This is further fault.
19. The Council has acknowledged there is potential for a similar issue to reoccur and is considering the best way to resolve the issue. Meanwhile the Council has reminded case officers to be vigilant of checking the consultation list against the neighbours present on site. The Ombudsman welcomes this action.
20. I have to consider whether the Council’s fault in its notification of this application has caused Mr C an injustice. I consider this to be the case. I am satisfied Mr C would have objected to the application if he had received a notification letter. This would have provided Mr C with the opportunity to make representations about the impact on his residential amenity including his specific concerns about the use of the fire escape. Mr C lost this opportunity and this has understandably caused him to question whether his specific concerns were properly considered by the case officer.
21. Mr C’s building is shown as a particular address on the ordnance survey location plan. This address is referred to in the case officer’s report. The report sets out objections to the proposals which included issues of noise and disturbance, overlooking and loss of privacy. The case officer concluded that the distances between the proposed development and neighbouring properties was such that there would be no adverse harm. However, there is no reference in the case officer’s report about the impact of the fire escape on neighbouring properties or any detail on the impact on the residential properties contained within Mr C’s building.
22. I have gone on to consider whether the fault identified above affected the outcome of the application.
23. The Council provided its reasons why it did not consider the location of the fire escape in relation to Mr C’s property would have formed a reason for refusal of the application. The Council considered the only windows of Mr C’s property that could be affected were two to the side of the property which served the same room as four other windows which provided the main outlook for this room. The Council considered any loss of light to the room due to the side windows being impacted by the fire escape would not be significant or fail the Council’s relevant light tests which are concerned with primary windows. The Council highlighted the relatively lightweight structure of the fire escape which would in any event allow some light to continue to enter the affected windows. The Council confirmed the proposed bathroom window facing Mr C’s property would be obscure glazed and so provide no overlooking. The Council also considered there would be no significant loss of privacy or overlooking from the use of the fire escape given its intended use. The Council also noted external staircases and fire escapes in close proximity to neighbouring properties within town centre locations are not uncommon.
24. The Council also noted the application to which the complaint related was similar to one previously permitted in January 2017. The Council considered the impacts on Mr C’s property as a result of that application would be similar to those resulting from this application. The previous consent was extant at the time of permitting the recent application to which the complaint relates and so represented a significant fallback position against which to assess any subsequent proposals. The Council subsequently agreed this was not the case as although the previous application was for a rear first and second floor extension, the rear elevation for the new application was deeper than previously approved, not stepped and would create a new third floor.
25. In response to an earlier draft of this decision, Mr C also confirmed his property was on the third floor of the building which meant his affected window would be the sole window to his bedroom and provided the Ombudsman with photographs from this bedroom window to show the existing view.
26. The Council subsequently accepted the affected window would be Mr C’s sole bedroom window rather than the secondary windows to his living room. The Council also accepted the view from the Mr C’s affected window would change from one with open views to one to the proposed development but did not consider such a change in outlook would warrant refusal. The Council also confirmed the distance between the proposals and Mr C’s property meant it would not fail the relevant light assessment and there would be no unacceptable loss of light.
27. The Council considered the main issue remained the impact of the fire escape which would not obscure the window as it is located at a lower level but accepted the access to the fire escape would be past Mr C’s window. The Council accepted the potential for overlooking from the fire escape when it was in use but noted this was only used as an emergency means of escape and not as a routine, everyday access. The Council does not consider the occasional emergency access would result in loitering or regular use that could give rise to any significant overlooking that could have warranted refusal of the application. The Council has confirmed it will seek to ensure access is only usable in an emergency.
28. I am satisfied Mr C’s uncertainty is aggravated by the absence of any direct reference to the specific issue of the impact of the fire escape and its use given its proximity to his window and the lack of detail about the impact on the residential amenity of the properties contained within Mr C’s building in the case officer’s report to the Planning Committee. However, on balance, I do not consider Mr C’s representations or the provision of additional detail would have led to a different outcome of the application. The Council has provided cogent reasons for its assessment of the proposals and their impact.

Agreed action

29. The Council has agreed to:
1. write to Mr C to apologise for failing to notify him about the planning application and pay him £250 to reflect his lost opportunity to make representations and his time and trouble in making his complaint within one month of my decision;
2. provide the Ombudsman with the outcome of its review into the notification process to ensure all relevant addresses are notified in accordance with its SCI within three months of my decision; and
3. use its best efforts to agree an enforceable condition with the developer restricting the use of the fire escape for emergency or maintenance purposes only and provide an update on progress to the Ombudsman within four months of my decision.

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Final decision

30. I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman