Summary: X complained about the Council’s decision to approve their neighbour’s planning application to extend a basement. We should not investigate this complaint further as we are unlikely to find fault or evidence that shows the outcome would have been different.

The complaint

1. X complained about the Council’s decision to approve a basement extension and other works. X is concerned about the impact the development will have on their home.
2. X wants the Council to:
• apologise for its failures;
• revoke its decision to approve the application;
• impose additional conditions;
• ensure it follows law, policy and guidance in the future.

Back to top

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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended) ­

Back to top

How I considered this complaint

4. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies on 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; and
• 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; and
• private rights and interests in land.
9. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – Buildings of exceptional interest;
• Grade II – Buildings of particularly important/more than special interest;
• Grade III – buildings of special interest.
10. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
11. It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.
12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents (SPD).
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
14. We recognise that councils have discretion to depart from their policy and guidance, but they need to demonstrate they have exercised that discretion properly. We normally expect to find evidence of consideration of the key material issues in the planning case officer’s report, which is written to advise the decision-making body or individual.
15. We accept that delegated reports might be written differently, as their target audience is a professional planner, not a member of the planning committee. However, delegated reports still need to demonstrate the core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated.
16. The purpose of the report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
17. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
18. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
19. If the council decides the changes are ‘material’, it may require that the whole process begins again with a fresh application. However, if the changes are considered ‘non-material’ the council may allow changes without re-starting the process.

Background

20. X lives in a grade II listed terraced house in a conservation area. X’s neighbour submitted a planning application to build a basement extension. X says:
• The development works might cause structural damage to their home and increase flood risk.
• Draft SPD relating to basement extensions states that lowering basement floors in listed buildings should not be considered if underpinning of walls would be necessary. This application involves underpinning, so should not have been allowed. X says the information on underpinning provided by the applicant was insufficient.
• The decision should have been made by full committee and this did not happen because planning officers misled members by saying the applicant had met the requirements of the draft SPD on basements.
• Existing local plan policies say that the Council will only support minimal extensions to listed building, but this is a large extension, making the extension four times larger than the existing basement. X says the extended basement is larger than any other in the area.
• Officers were biased in favour of the applicant. X says the tone of the officer’s emails with the applicant show a friendly familiarity that was not present in communications with the public.
21. The application was considered by a planning case officer. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance, including the draft SPD on basements;
• an appraisal of the main planning considerations, including impact on conservation area and heritage assets, the structural integrity of the building, amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
22. A local member sought to have the application referred to the Council’s planning committee for determination, but was advised this should not happen because:
• it was unlikely members would reach a different conclusion to officers;
• officers had considered concerns about flooding and structural damage and were satisfied with the proposal;
• the proposal was in accordance with the draft basement SPD, but even if this was not so, officers were satisfied with the structural integrity of the development; and
• there was no basis to refuse the application on conservation grounds.
23. The decision was approved by an officer using delegated powers.

My findings

24. Before we investigate complaints or continue our investigations, we need evidence to show the individual complainant was caused a significant injustice by the Council’s actions. In the context of a planning complaint, this means we need evidence to show that but for any alleged fault, it is likely the outcome of the decision would have been different.
25. Having discussed the complaint with X, considered the documents X has provided and other evidence from the Council’s planning files, I think it is unlikely we would be able to find the outcome would have been different or that X was caused a significant injustice that we could remedy, and my reasons are as follows:
• The case officer’s report includes the key planning considerations, including X’s concerns relating to conservation matters, potential structural issues and increased flood risk. We do not expect every possible issue to be covered in a case officer report and this report sets out the officer’s views and recommendations on the main planning considerations. Because of this, it is unlikely we would be able to conclude the decision-maker had insufficient information or was misled.
• The draft SPD was referred to in the report, but the case officer does not say what weight, if any, was given to it. Policy or guidance that is emerging and at the early stages of the process towards adoption is often given limited weight, but how much influence it should have in any case is a matter for the planning authority to decide.
• The Council considered the request from at least one member to refer the application to full planning committee, but the request was refused. X believes this happened because officers gave misleading information about the proposal’s compliance with the draft SPD. The individual that made the decision not to refer to committee gave a number of reasons why it was unlikely the outcome would not be different and also allowed for the possibility that the application was not policy compliant. We cannot know with any satisfactory degree of certainty what would have happened if the decision was referred to committee. We cannot say it is likely that members would have gone against officer advice and refused the application, as X would have liked.
• X would like the Council to revoke its planning decision. The Council has a limited power to revoke its own decisions but could be held liable for abortive costs. The high court can quash a planning approval upon application for judicial review of a decision. Neither of these outcomes are remedies we can provide.
• The development is now lawful and though I can understand why X is concerned about disturbance during construction, I do not consider they will be caused an injustice by the existence of the basement once it is built. It is underground and so day-to-day use of the basement is unlikely to significantly affect the amenities planning authorities usually seek to protect. It is unlikely we would be able to provide a remedy for the impact the use of the basement will have on X.
• X is concerned about flood risk and the structural integrity of the terrace, but I can see the Council considered these matters before it made its decision. Of course, all development proposals will come with their own risks, but we cannot recommend a remedy for something that may or may not happen. Ultimately, the developer and owner of the house next to X’s will be responsible for carrying out the works safely – this responsibility does not pass to the Council, merely because its planning and building control officers have considered the proposal.
• I accept it is important that emails and other communications between officers and the public are professional and courteous, but I would not be able to say a decision was pre-determined without good, clear evidence. It is important to also note that if there was such evidence, this would probably be more a matter for the police than the Ombudsman, as it could amount to a crime - misconduct in public office. However, it is not wrong for an officer to be pre-disposed to a particular outcome. Planning officers cannot sit on the fence when giving their advice to decision-makers – they must make a recommendation to either support or oppose what is proposed. It is only if there is clear evidence to show that an officer closed their mind to any other outcome that they could be judged to have predetermined the matter. X has not provided evidence of pre-determination.

Back to top

Final decision

26. I ended my investigation as I am unlikely to find evidence of fault in the decision-making process or be able to show the outcome would have been different.

Back to top

Investigator's decision on behalf of the Ombudsman