Leeds City Council (19 015 915)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 17 Nov 2020

The Ombudsman's final decision:

Summary: Mrs X, represented by her local Councillor, complained about the Council’s decision not to refer her neighbour’s planning application to its plans panel. The Ombudsman found there was fault in the decision-making process. However, there was no injustice to Mrs X because the Ombudsman cannot say that, but for the fault, the outcome would have been different.

The complaint

  1. Mrs X, represented by her local Councillor, complained about the Council’s decision not to refer a neighbour’s planning application to its plans panel following a request from a local Councillor.
  2. Mrs X suffered distress and frustration at what she saw as the denial of her democratic right to make representations to the panel.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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

  1. 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 planning documents for the recent application.
    • The Council’s Officer Delegation Scheme.
  2. I have written to Mrs X’s local Councillor and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. 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.
  2. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations suggest they should not. Planning considerations include things like access to the highway, protection of ecological and heritage assets and the impact on neighbouring amenity.
  3. The Council’s Chief Planning Officer is authorised to determine applications for planning permission, except in some limited circumstances. The Chief Planning Officer is not authorised to determine applications following the written request by a local Councillor that an application be referred to the Plans Panel (the panel). The panel may however arrange for the Chief Planning Officer to discharge any of its functions.
  4. A request for a referral to the panel must be sent to the Chief Planning Officer within 21 days of the application validation date and must set out the reasons for the referral based on material planning considerations and must give rise to concerns affecting more than neighbouring properties.
  5. If a referral from a local Councillor is not based on material planning considerations or does not affect more than neighbouring properties, referral to the panel is at the discretion of the Chair of the panel.
  6. 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.
  7. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application. The Ombudsman will not come to a view on the merits of the planning application. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission.

What happened

  1. Mrs X’s neighbour applied for permission to extend their home in April 2019. They wanted to build a partly two storey and partly single storey front, side, and rear extension.
  2. Mrs X presented objections based on loss of light, overshadowing, outlook, and impact on the street scene. A local Councillor (Councillor one) objected on grounds of overdevelopment, impact on neighbouring amenity, and loss of garden space.
  3. On 9 May 2019, Councillor one asked for the application to be referred to the panel if officers were going to recommend approval. Councillor one said the application had a significant impact on the street scene and material impact on residential amenity of neighbouring properties. He said it is a controversial application with much community interest.
  4. The planning officer who decided the application said the main issues were the effect of the plans on the character of the existing house and streetscape, and the impacts on neighbouring amenity. The scale, form, height, projection, and closeness to the boundary were considered unacceptable. The officer thought the plans would result in an unacceptable increase in overshadowing, loss of outlook, and loss of residential amenity.
  5. The Council refused the application at delegated officer level in June 2019, so there was no need to refer the application to the panel.
  6. Mrs X’s neighbour made a second application for permission to extend their home in August 2019. Again, this was for a partly two storey and partly single storey front, side, and rear extension. The applicant amended the plans they filed in April to address some of the objections. The amended plans reduced the depth of the extension, altered the design of the side extension, and reduced the rear extension to a single storey instead of two.
  7. Mrs X again put in objections. She said the proposed extensions would overshadow and block out light to her living room, rear bedroom, dining room, rear decking area, and garden. She also said the house will look out of place with the rest of the houses and appearance of the street.
  8. The town council objected because of impact on the street scene and neighbouring residential amenity.
  9. A second local Councillor (Councillor two) emailed the Council on 4 September 2019 asking for the application to be referred to the panel. The request was sent the to the wrong mailbox and did not say why the application should be referred to the panel.
  10. On 11 September 2019, a third local Councillor (Councillor three) sent a letter of comment to the Council. He said all houses on the street were extended or altered, some much larger and more elaborate than the original modest houses. He said uniformity of the street scene was lost, but most extensions and changes were reasonably sympathetic in style and materials. He considered the applicant’s amended plans overcame some of the objections previously received. And reworking the design to leave a single storey extension at the boundary with the next door neighbour should resolve the remaining objection.
  11. The officer who decided the application confirmed the main issues were the effect of the development on the character of the existing house and streetscape and impacts on neighbouring amenity.
  12. The officer considered the materials used were sympathetic and would not harmfully impact on the symmetry and character of the semi-detached properties. While the extension reduced the gap between properties, the officer did not consider this created a 'terracing' effect. The single storey extensions were considered proportionate additions which would not harmfully impact the neighbouring site. It was not considered to create a harmful impact in overshadowing, over dominance, loss of outlook, or loss of light.
  13. The Council approved the application at delegated officer level in October 2019.
  14. On 10 October 2019, Councillor one emailed the Council with a copy of his original request for a referral to the panel. He asked why his request was not complied with.
  15. The Council told Councillor one it refused the application he referred to in June. The applicant made a new application with amended plans. The Council considered the amendments overcame the original refusal, so approved the application. The Council admitted it was not aware of the Councillor’s previous panel request when they signed off the second application. It confirmed it would have asked for Councillor one’s comments if it had known. The Council apologised.
  16. Councillor one contacted the Council again on 14 October 2019. He said Councillor two also made a request for a referral to the panel. He acknowledged this request was sent to a different email address. He said the neighbours were unhappy at what they saw as the withdrawal of their democratic right to be heard by the panel.
  17. The Council said it was unaware of Councillor two’s request for a referral to the panel, as was the case officer. It said the request was wrongly sent to the appeals team, who did forward it on to the officer, but the officer missed it. The Council confirmed the correct address to send comments and objections and said requests for panel referrals must set out clear reasons based on material planning considerations and give rise to concerns affecting more than just neighbouring properties. The Council apologised the request was missed in this case but said neighbour’s objections were considered.
  18. Mrs X complained to the Council on 23 October 2019. She said she objected to the application, supported by her local councillors, who asked for it to be considered by the panel. Instead the Council decided the application under delegated powers. Mrs X said the outcome may have been different if the application had been considered by the panel.
  19. The Council sent its stage one complaint response on 20 November 2019. It said:
    • Councillor one objected and requested a referral to the panel for the first application, which was rejected. Councillor one did not request a referral to the panel for the second application.
    • Councillor two did ask for the application to be referred to the panel but sent their request to the wrong email address and it was therefore not uploaded onto the system. The email was forwarded to the case officer by the appeals team but was missed by the officer.
    • Councillor two’s request for referral to the panel did not contain any material planning objections. It was simply a request for referral to the panel. It said this would not normally be enough for a referral.
    • It accepted an officer made an error in missing Councillor two’s request; however, it did not meet the strict criteria for a panel referral. The Council considered the outcome would not have been significantly different, and the error did not result in any injustice.
  20. Mrs X sent a stage two complaint request to the Council on 22 November 2019. She:
    • Asked the Council to clarify whether Councillor one’s objections met the criteria for a panel referral. She also said Councillor one should have been asked about his concerns.
    • Said the Councillor two’s request did satisfy the criteria for a panel referral.
    • Said her rights had been undermined because she did not have the opportunity to put her concerns to the panel, who may have come to a different decision.
  21. The Council sent its final complaint response on 12 December 2019. It said:
    • There is no duty to consult local Councillors on householder applications, but they can send objections.
    • Councillor one did not object to the second application but called the case officer on the day of the decision. However, the town council filed an objection which was addressed by the case officer.
    • It did not agree Councillor two’s request met the referral criteria.
    • Officers considered the proposals would not result in concerns affecting more than the neighbouring properties. It said it will let Councillors know of the correct procedure for requesting referrals in future.
    • Even if Councillor two followed the correct procedure with their request, there is no guarantee the Chair of the panel and Chief Planning Officer would have referred the application to the panel.
    • The panel would have had to agree material reasons for refusal based on adopted policy. It considers refusal of the application would have been difficult to defend at appeal. It is the Council’s view that it is unlikely the panel would have come to a different conclusion to officers. Only 1 out of 77 panel decisions during 2018/19 was different to officer’s recommendations.
  22. Mrs X’s local Councillor, Councillor one, brought Mrs X’s complaint to the Ombudsman on 17 December 2019.

Response to my enquiries

  1. The Council told me the email from Councillor two was sent to the wrong email address. When it was forwarded to the planning officer it was not picked up due to an oversight, because it was not clear the email was sent by a Councillor.
  2. The content of Councillor two’s email did not give reasons to refer the application to the panel. It did not give details of any likely significant impact of the plans on the area the Councillor represented. It therefore did not meet the Council’s delegation scheme criteria.
  3. The Council said if the officer had seen the Councillor’s email, the Chief Planning Officer would have discussed the request with the Chair of the panel. They would also likely have discussed the objections received and the plans had been amended to address the issues raised.
  4. While the Council recognises it cannot be guaranteed, it does not consider the Chair of the panel would have accepted a referral.

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My findings

  1. 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.
  2. On the evidence seen, the case officer did consider the material planning considerations and neighbour objections. The officer recognised there will be some impact on neighbouring properties but considered this was acceptable. The officer’s views differ from the views of Mrs X, 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.
  3. The Council refused the first application under delegated powers, so there was no need to refer it to the panel. Councillor one did not ask the Council to refer the second application to the panel. However, the Council recognised it should have asked Councillor one for his comments about the second application but was not aware of his earlier comments. That was fault. It appears officers did not check the planning history thoroughly. The Council should ensure it does so in future.
  4. Councillor two did ask the Council to refer the second application to the panel. I have checked the Council’s delegation scheme and agree the request did not meet the criteria. It provided no material planning considerations or details of the impact beyond immediate neighbours.
  5. However, the Council recognised it missed Councillor two’s request, and it should have considered it. That was fault.

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Did the fault cause an injustice?

  1. 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.
  2. Unfortunately, the Council’s failure to consider Councillor two’s request means I cannot say for certain what action the Council would have taken or what the result may have been. I must therefore consider what the evidence suggests on the balance of probabilities.
  3. The Council told me it would have at least discussed the request with the Chair of the panel. However, I do not consider there is enough evidence to say the Chair of the panel would have accepted the referral. I consider there is even less evidence to suggest this would have had a material impact on the Council’s decision to approve the application.
  4. The objections and material issues were considered in the case officer’s report. The fact the application was not referred to the panel does not mean it was not properly considered.
  5. I have not seen evidence to show the application is one of significance which could be sensitive or had a greater wider impact affecting not just neighbouring properties. And it is not a major development. It is a householder planning application and I have only seen evidence its impact would be controversial to neighbouring residents it potentially affects.
  6. On balance, I therefore agree with the Council’s view the Chair would be unlikely to accept a referral to the panel.
  7. If the Chair had accepted a referral to the panel, I do not consider there is evidence which suggests the panel would have gone against the views of the officer who decided the application. As above, the plans were amended because of the initial objections. Other houses on the street have also been developed and extended and there is evidence the street scene is already altered and no longer uniform. I have seen the same picture when viewing images of the street.
  8. Therefore, on balance, I cannot say the result would have been different if the Council had acted without fault.
  9. While I appreciate Mrs X’s frustration, it also follows that I cannot say she has suffered an injustice.

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Final decision

  1. I have completed my investigation. There was fault in the Council’s decision-making process. However, there was no injustice to Mrs X because the Ombudsman cannot say that, but for the fault, the outcome would have been different.

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Investigator's decision on behalf of the Ombudsman

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