Summary: We found no fault in how the Council reached its planning and enforcement decisions about development near Mr X’s home.

The complaint

1. Mr X complained, for himself and three of his neighbours, about the Council’s handling of development (‘the Development’) near their homes. The complaint was the Council:

• prepared and presented a biased report on the Development and the grant of planning permission was predetermined;
• failed to properly address and consider the impact of the Development on their homes, particularly how it overlooked and removed their privacy; and
• failed to stop the developer making unauthorised changes to the Development that worsened overlooking and loss of privacy to their homes.

2. Mr X said the Development was out of character, overbearing and in overlooking his and his neighbours’ homes invaded their privacy. Mr X recognised substantial changes to the Development were now unlikely. However, before completion Mr X and his neighbours sought changes to lessen the impact of the Development on their homes. Mr X and his neighbours wanted building work stopped until changes were agreed.

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The Ombudsman’s role and powers

3. 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. 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), 26A(1) and 34(3), as amended)
4. We may investigate complaints made on behalf of someone else if they have given their consent. Three of Mr X’s neighbours have given their written consent for Mr X to represent them in this complaint about the Development. (Local Government Act 1974, section 26A(1), as amended)
5. 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

6. I have:

• considered Mr X’s written complaint and supporting papers, photographs and video;
• talked to Mr X about the complaint;
• listened to the recording of the Council’s planning committee when they considered the Development;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s comments with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background

Planning decisions

7. Most development needs planning permission from the local council. However, Parliament has given a blanket permission (‘permitted development’) for many, usually, minor works. Subject to the specific nature of the works, councils have no control over permitted development.
8. Councils must publicise planning applications so people can comment on proposed development. And, while not a legal duty, a council planning officer will usually visit the site of the proposed development. (It is rare for councils to a visit land and property outside the development site.)
9. Councils must consider each application on its own merits. They should also make decisions in line with their development plan policies unless material planning considerations indicate otherwise. However, planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities.
10. Material considerations concern the use and development of land in the public interest, for example, traffic generation and overlooking. Peoples’ comments on land use and planning issues are material considerations. Councils must consider such comments, but they do not have to agree with them. Private concerns, for example a developer’s behaviour and changes to property prices, are not material planning considerations.
11. Most councils prepare reports to assess development proposals. The officer that visits the development site usually writes the report. The officer will draw on all the information about the development, which information is available either online or on request to councillors and local people. The report will summarise the proposals and peoples’ comments and identify relevant policies and the main planning issues for deciding the application. The officer will consider the proposals against the policies and main issues and recommend the grant or refusal of planning permission.
12. A senior planning officer(s) authorised by their council to decide applications will consider most reports. However, some reports go to a council’s planning committee. Each council has its own arrangements for when senior officers or councillors decide an application. It is for the senior officer or councillors at committee to decide the weight given to any material planning issues when determining an application. This means the senior officer(s) or councillors at committee may disagree with a report recommendation.
13. Where an application goes to a planning committee, councils usually allow both supporters and objectors to address councillors. Most councils give people three to five minutes to put their views to the committee. Councillors may ask any speakers questions but do not have to.
14. Normally, councils grant planning permission if they consider the proposed development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal.
15. If a council refuses an application, the applicant has a right to appeal to the Planning Inspectorate (PINs) against that decision. The law says a council must state ‘clearly and precisely its full reasons for refusing planning permission.’ This will help an applicant decide whether to appeal the decision and or if changes to the proposals may overcome the refusal reason(s). The council’s decision notice must also explain how it has worked with the applicant “in a positive and proactive manner” to seek solutions to problems arising from its consideration of the application.

Planning enforcement

16. If development takes place without the necessary planning permission there will be a breach of planning control. A failure to comply with a planning permission and its conditions is also a breach. Planning enforcement is largely reactive, that is, it depends on people reporting possible breaches to their council.
17. Councils should investigate reported breaches but do not have to act against every breach they find. The Government’s National Planning Policy Framework (NPPF) says councils should act proportionately in responding to suspected breaches. The Government’s National Planning Practice Guidance (PPG) also refers to proportionate action and says informal enforcement can often be the quickest and most cost-effective way of securing a lasting remedy for breaches.
18. If councils wish to act, they usually have a choice in what steps to take. However, they must be satisfied, having considered relevant policies and material planning considerations, that issuing an enforcement notice is “expedient”. People have legal rights of appeal against an enforcement notice.
19. Canterbury City Council (‘the Council’) publishes an undated Planning Enforcement Plan (‘the Plan’) on its website. The Plan refers to the Council’s discretion to act and refers to the PPG. The Plan says formal action is a last resort where “judged expedient” as the Council normally tries to work with developers to resolve breaches. The Plan says a breach is either ‘high’ or ‘low’ priority for investigation. The Plan’s list of six high priority cases generally concerns breaches likely to cause “significant harm”. Cases not within the ‘high priority’ list are ‘low priority’. The Plan says the Council will let people know within three working days if a reported breach is one it can investigate. The Council will also tell those reporting a breach about the enforcement decision, which, for straightforward cases, is usually within 28 working days.

Summary of what happened

20. Land near Mr X went up for sale (‘the Site’). Mr X noticed changes to windows in an existing building on the Site that reduced privacy to his and other nearby homes. Mr X reported the change to the Council as a possible breach of planning control. The Council investigated, making a site visit, and decided the change was permitted development. The Council wrote to Mr X and explained why it had found no breach of planning control. (Mr X did not receive the letter.)
21. Meanwhile, the Council received a planning application for the Development on the Site, which it publicised. Mr X and other residents objected to the Development. Their main grounds of objection were the Development was out of character, overbearing, and would cause significant loss of light, outlook and privacy.
22. A Council planning officer prepared a report about the Development (‘the Report). The Report identified planning policies and listed seven grounds of objection, which covered the concerns raised by Mr X and other residents. The Report also identified the main issues for consideration in assessing the Development, which included the Development’s impact on the local area and living conditions. The Report recognised the design of the Development was ‘contemporary’ and found it was in keeping with the local area, which was of varied character. The Report found the Development’s position and design meant it would not have an overbearing impact on two nearby properties. The Report also found windows in the Development would be in ‘similar positions’ to those of an existing building on the Site and so would not worsen conditions. And, existing boundary treatments would prevent any unacceptable loss of privacy. Overall, the Report found the Development would not cause unacceptable harm and was in line with planning policy. The Report recommended the grant of planning permission.
23. Under the Council’s arrangements for deciding planning applications, the Council’s planning committee considered the Report. Mr X spoke at the committee meeting for himself and his neighbours. Mr X told councillors about residents’ concerns the Development would seriously affect privacy to their homes and was overbearing and not in keeping with the local area. Mr X also said the Council had not responded to his report about changes to windows in existing buildings on the Site. Mr X said these changes were being used as a precedent for the Development.
24. Councillors voted to approve the Development and the Council then issued a formal decision notice granting planning permission.
25. Mr X wrote to his local councillor to complain. Mr X’s grounds of complaint included his serious concern the Council had predetermined the planning application because of the Report’s bias towards the developer. Mr X also said photographs shown at the committee meeting aimed to mislead councillors about the impact of the Development on the local area. Mr X said the Report had not referred to two existing properties directly affected by the Development whose occupiers had made objections. Mr X also said he had yet to receive a response to his report about changes to windows on an existing building on the Site.
26. The Council acknowledged the complaint several weeks later and then quickly replied. The Council said the Report showed how the planning case officer had assessed the Development to reach the recommendation. However, councillors had access to all information about the planning application and knew they could disagree with the officer’s recommendation. The Council accepted the Report did not directly address objections from two residents. However, the Report showed the Council had received and taken account of objections about overlooking. The Council said it had written to Mr X about its enforcement investigation. It accepted Mr X did not appear to have received its letter and apologised for failing to resend it when he had previously chased for an update on the investigation. The Council also told Mr X about permitted development rights.
27. Mr X found the Council’s reply unsatisfactory. Mr X repeated his concerns about bias and predetermination and asked how the Council could properly assess overlooking without visiting neighbouring homes. In response, the Council said there was no evidence of bias or predetermination. Councillors at the planning committee, after hearing from public speakers, had decided the application. The application plans allowed people to understand how the Development affected neighbouring properties and the Report addressed overlooking. The Council recognised Mr X did not agree with its assessment of the Development, but it had made an objective decision based on relevant material planning considerations. The Council signposted Mr X to the Ombudsman should he remain dissatisfied with its response to his complaint.
28. Meanwhile demolition work started on the Site. A neighbour reported that foundations for a new building did not comply with the approved Development plans. The Council opened an enforcement investigation and visited the Site. The Council’s enforcement officer noted the demolition work but found no breach of planning control as construction had not started. The Council wrote to tell the neighbour what it had found and closed its enforcement investigation.
29. The neighbour then reported another breach of planning control. The Council opened an enforcement investigation and an enforcement officer visited the Site. The Council found there was a breach and, after discussions, the developer agreed to remove the unauthorised work. The Council said the neighbour was told about the enforcement outcome in a telephone call. The Council then closed its enforcement investigation.
30. Mr X complained to the Ombudsman. And, as building work continued, Mr X and his neighbours reported further breaches of planning control on the Site and raised health and safety issues. The Council opened an enforcement investigation but told Mr X and his neighbours the Government’s COVID-19 restrictions meant it could not make a Site visit. Some months later, having visited the Site and discussed matters with the developer, the Council closed its enforcement investigation. The Council wrote to Mr X saying it had found one breach, which the developer had since put right.

Consideration

Introduction

31. Most peoples’ homes and the place they live are important to them. The strength and depth of Mr X’s and his neighbours’ concerns about the Development was therefore understandable. My role was to consider whether the Council acted with fault in its planning decision making. Without evidence of fault, I could not question the Council’s planning decisions however strongly Mr X disagreed with them (see paragraph 3). In considering fault, I did not find it necessary to, and this statement does not, address every point raised in the correspondence Mr X and his neighbours had with the Council. I focussed on the three issues raised in Mr X’s complaint to the Ombudsman (see paragraph 1).

Bias and predetermination

32. Mr X found the Report biased and said the Council was predetermined to grant the Development planning permission. These were serious allegations.
33. That a report assessing an application recommends the grant of planning permission is not in itself evidence of bias or predetermination. Here, the Report included the information normally expected to assess proposed development (see paragraph 11). That the Report could have included more detail does not mean it was, as drafted, inadequate. A report should draw on all the relevant planning information but does not need to repeat it as it is available for inspection by decision makers and local people. A report also provides an officer assessment of a proposal. That officer will reach a view based on their planning judgement about whether proposed development is acceptable. In presenting that assessment and reaching a recommendation, the officer will set out their views. In doing so, they must take account of differing views, for example, those of people objecting to a development (see paragraph 10). Here, the Council acted correctly as the Report showed it took account of objections to the Development. Having considered those objections, the Council did not have to agree with them. And, I had no role in arbitrating on differing views about the planning merits of the Development.
34. The Council’s planning committee considered the Report. So, officers did not grant the Development planning permission, it was a councillors’ decision. The recording of the committee’s consideration of the Report provided evidence Mr X took the opportunity to put his views about the Development direct to councillors. The recording was also evidence that some councillors found the points made both for and against granting planning permission relevant. And a majority of councillors present at the meeting voted to grant planning permission. These events did not provide evidence of either bias or predetermination by the Council.
35. Overall, the evidence did not show the Council acted with bias or predetermination.

Impact on existing homes

36. Mr X said the Council failed to properly deal with the impact of the Development on how it overlooked and removed privacy from nearby homes.
37. A key issue here was the change to an existing window around the time the Site was sold. Mr X reported this change to the Council and the evidence showed he did not receive its enforcement investigation decision letter (see paragraph 20). This was unfortunate. And yet, the Council did investigate the change and found it did not breach planning control. The change could have happened much sooner and without the Council’s involvement as permitted development (see paragraph 7). So, I did not find the Council at fault for not taking account of the pre change position in deciding whether to grant the Development planning permission.
38. In responding to Mr X, the Council accepted the Report did not expressly refer to all the properties near the Site. And yet, the Report listed ‘overlooking’ as an objection. The Report also addressed that issue in commenting on windows within the Development and their impact on privacy. The recording of the Council’s planning committee meeting also provided evidence that Mr X raised the issue in speaking to councillors. Based on this evidence, I had no grounds or good reason to find the Council failed properly to consider the impact of the Development on existing homes in reaching its planning decision. So, while I recognised Mr X and his neighbours disagreed with the Council and found the Development had an unacceptable impact, there was no evidence of fault here by the Council.

Breaches of planning control

39. Mr X said the Council failed to stop the developer making unauthorised changes to the Development, which worsened overlooking and loss of privacy to nearby homes.
40. Mr X and his neighbours reported several breaches of planning control to the Council (and continued to do so after this complaint to the Ombudsman). It was not my role to decide if any breach existed and, if so, what, if any, action the Council should take to address the breach. I considered if there was evidence the Council acted with fault in dealing with the reported breaches and reaching its enforcement decisions.
41. I found the Council acted correctly in opening enforcement files and investigating Mr X’s and other residents’ reports. The evidence showed the Council’s enforcement investigations included contact with the developer and Site visits. These are steps I reasonably expected a council to take to investigate a reported breach. The evidence also showed the Council found breaches, which it sought to resolve informally with the developer. Again, this was an approach expected from a council given guidance in the NPPF and PPG and as reflected in the Council’s Plan (see paragraphs 17 and 19). The evidence showed the Council acted in line with the Plan and told residents of its enforcement decisions. So, while I recognised Mr X and his neighbours might not agree with the Council’s enforcement views and decisions, I found no evidence it acted with fault.

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Final decision

42. I completed my investigation finding no evidence the Council acted with fault in reaching its planning and enforcement decisions about the Site.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman