Summary: The complainants Mr X and Ms Y complained the Council failed to properly consider a planning application for a significant extension to their neighbour’s property. They say the Council failed to honour its commitment to decide the application at Planning Committee denying them further opportunities to challenge the proposals. The Council says it followed correct procedure, considered all relevant information, and used delegated powers to decide the application under its Scheme of Delegation. We found the Council acted with fault and it agreed to apologise, pay £300 in recognition of the inconvenience caused and to make procedural changes.

The complaint

1. The complainants whom I shall refer to as Mr X and Ms Y complained the Council failed to properly consider a planning application for development near their home. They say this resulted in planning permission for a development which will adversely affect their amenity and the conservation area.
2. Mr X and Ms Y say the decision and the Council’s handling of the application has resulted in impacts on their health and enjoyment of their home. They want the Council to revoke the planning permission and pass the application to the Planning Committee for a new decision.

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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. If 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

5. In considering this complaint we have:
• Contacted Mr X and Ms Y and read the information presented with the complaint;
• Put enquiries to the Council and reviewed the responses received;
• Researched all relevant law, guidance, and policy.
6. I shared my draft decision with Mr X, Ms Y, and the Council and considered any comments received before reaching this my final decision.

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What I found

The law, guidance, and policy.

7. Developers need planning permission to develop land. Councils may grant planning permission subject to conditions on the development and use of land.
8. Councils may grant planning permission subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms
9. Councils must give publicity to planning applications.  The publicity needed depends on the nature of the development. The Council must publish all applications its website.
10. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
11. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It is a material consideration in deciding applications.
12. Material considerations concern the use and development of land in the public interest, and not 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.
13. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
14. Government statements of planning policy are material considerations.
15. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to give to any material consideration including planning policies, when deciding a planning application.
16. Councils delegate most planning decisions to their officers. Under the Council’s Constitution councillors or the public may ask the Council to refer an application to the Planning Committee for a decision subject to meeting set criteria. These include the Chair of the Planning Committee agreeing the proposal is sensitive, controversial, or likely to cause a significant impact on the local community.
17. The Planning (Listed Buildings and Conservation Areas) Act 1990 imposes duties on the Council. These include a duty to ‘preserve and enhance’ the character of its Conservation Areas. One tool the Council uses to achieve that is by considering its conservation area management plans.
18. The Council’s conservation area management plan notes that infill between houses may spoil the original spatial relationship between them and the architectural proportions, changing their contribution to the streetscape.
19. The conservation area management plan also warns side extensions may cause a terracing effect. On roof lights it recommends using flat lying ‘conservation roof lights.’ The management plan also says the Council will resist applications for roof lights where necessary to preserve the area’s local character. It says the Council will rarely approve inset dormer windows on the font or side of a house. The management plan says three metres depth is a good guide for an acceptable depth of extension.

What happened

20. Mr X and Ms Y live in a conservation area. In October 2018 their neighbour applied for planning permission to develop the neighbouring house from two self-contained flats into seven self-contained flats. A reduction from a previously withdrawn application for eight flats. The site is a non-designated heritage asset (heritage asset) . The proposal significantly extended the original building to the side and rear, into the basement and the roof. What follows gives a summary of the main issues and not a resume of the full details of the planning proposal.
21. Mr X and Ms Y say the Council’s planning officers assured them the Planning Committee would decide the application not officers exercising delegated authority. In their complaint Mr X and Ms Y further complain the Council failed to:
• Properly consider the impact of this scale of building on them, the Conservation Area and two heritage assets. The harm caused they say outweighed the public benefit of the development;
• Consider the advice of Historic England or consult a conservation expert such as its own Conservation officer;
• Properly consider the harm caused to neighbouring properties by the infill nature of the extension adjoining their homes and the terracing effect caused;
• Properly protect seven trees contrary to national planning guidance which the developer proposed felling;
• Properly investigate complaints about breaches of the Code of Conduct by the Chair of the Planning Committee.
22. The Council publicised the application in the press and gave notice to the locality’s residents’ associations and the Conservation Area Panel. The Council received 224 objections. These included those presented by Mr X and Ms Y, the residents association, and Conservation Area Panel. The case officer summarised the objections in their report and gave their professional view of the objections. Examples of this include addressing the degree by which the proposal will exceed the guide in the Conservation Area Management Plan that extensions should not exceed 50% of the original area of the home. The case officer says this is acceptable because of limited visibility from the wider environment. With the main changes being to the rear of the property in the case officer’s professional judgement the development will not affect the overall character and appearance of the Conservation Area. In another example the report sets out the case officer’s view on the impact on the site as a heritage asset. The case officer says with the development being subordinate to the original house and the use of sympathetic materials it will not harm the heritage asset. In the report the case officer discusses the issues the law and guidance say the Council must consider when dealing with a conservation area and heritage assets. The Council says it did not need to consult Heritage England or an independent conservation expert. The Council’s planning officers have enough expertise it says to consider routine heritage issues and they had the views of the Conservation Panel to help them.
23. To compensate for the removal of existing trees the case officer proposed entering a legal agreement committing the developer to planting new trees.
24. In response to my enquiries the Council says there are no records showing officers told Mr X and Ms Y the Committee would decide the application. Rather, the Council says officers told Mr X and Ms Y it could only refer the application to Committee if the Chair or Vice Chair of the Planning Committee approved. That is in line with the Council’s Constitution’s Scheme of Delegation. The Council says its records do not show the Chair received any request from Mr X, Ms Y, or councillors to refer the application. The Chair did not refer the application to Committee.
25. On 21 December 2018 the Council’s Chief Planning Officer wrote to Mr X and Ms Y. He said he could not say what weight he could give to the planning considerations associated with the proposal. He explained to do so would prejudice “…the final recommendation to planning committee.” He then went on to say that “As for Committee dates, February 2019 would be the earliest it will be considered”. The Chief Planning Officer continued by saying the Council would tell all who had commented on the application the date of the committee meeting. Mr X and Ms Y say this led them to believe the Planning Committee would decide this application, not officers using delegated authority.
26. In summer 2019 the case officer discussed with the developer proposals for the side extension. The Council received an email from the developer’s agent about the Council’s suggested changes to that extension. When Mr X and Ms Y asked what concerns it had the Council said the email related to a conversation not recorded in the file notes so it could not answer their question. The Council says the amendments to the overall scheme addressed any concerns raised by objectors. The Council says it did not need to keep a record of the concerns because they were set out in the objections and record keeping should be proportionate.
27. The Council granted planning permission subject to conditions on 4 February 2020. It entered a legal agreement for replacing the trees. The Council decided the application under delegated powers. That it says is correct under its Scheme of Delegation because the Chair of the Planning Committee decided not to refer the application for a decision by the Committee. The Council says in the Chair’s view the proposal was not sensitive, controversial, or likely to have significant impact on the local community, though the file does not record their reasons.
28. The Council says it makes nearly 98% of planning decisions by delegated powers in line with current national best practice.
29. The case officer’s report considers the impact on the heritage assets. However, Mr X and Ms Y say it does not expressly explain how the officer balanced the likely harm to the heritage asset and whether the public benefit outweighed that harm: the test applicable to heritage assets. The Council says the case officer refers to the heritage assets but focusses on assessing the desirability of preserving and enhancing the character of the conservation area. In the case officer’s professional view, the development would cause less than substantial harm. The public benefit derives in his view from providing additional housing without harm to the conservation area.
30. In an email to the Council in January 2020, Cllr Z challenged the decision not to refer the application. Cllr Z said that he wrote previously to the Chair of Planning asking him to put this application before Committee. Cllr Z says “…the Chair agreed... I subsequently wrote to [the Chief Planning Officer] asking when it would be coming to Planning Committee and was told not before March 2019”. This Mr X and Ms Y says supports the advice they received that the earliest the Committee could consider the application would be February 2019. Cllr Z went on to ask why the Council granted the application under delegated powers when it had told Ward Councillors the Planning Committee would decide the application.

Analysis – was there fault leading to injustice?

31. My role is to decide if the Council properly decided the planning application without fault. If it acted with fault, then I must consider what impact this had on the final decision. If I find fault leading to an injustice, I must decide what the Council should do to put that right.
32. For the public to have confidence in planning decisions it needs to understand the reasons for decisions. The Council’s officers may decide under its scheme of delegation to grant planning permission. Provided the officers believe the application is not sensitive, controversial, or likely to have a significant impact.
33. The Council gave due publicity to the application and received 224 objections as well as the comments from statutory consultants. To the lay person, an application which receives 224 objections may look like a controversial planning application. Particularly one opposed by the Conservation Area Panel. The case officer must decide if the application meets the test for referral to Planning Committee. In exercising their professional judgement on this issue, it is important officers note in their report why they do not believe the development meets the criteria. Just a few lines will be enough to show they have considered this important test. This application had created much interest therefore the public might reasonably expect the case officer would explain why the criteria had not been met. The report does not. I find that omission a fault.
34. Similarly, the Scheme of Delegation sets out the procedure for referring applications to the Planning Committee. The Chair has the final say. The Scheme does not say the Chair should give their reasons for referring or not referring an application. I find this a systemic fault. The public might reasonably expect that where they challenge a decision there will be a contemporaneous note of the reasons for that decision. Without it we cannot say if the Chair properly decided the issue because it does not show what the Chair considered, or how the Chair considered the test. I have therefore recommended amending the procedure.
35. In an email a senior planning officer confirmed the Council would present the application to the Planning Committee. Cllr Z gave a similar assurance. I find Mr X and Ms Y reasonably relied on those assurances. They say officers confirmed the assurances when speaking to them, but I have no recording or record of that on which to base a judgement. However, I see no reason they should not rely on the commitment given in the email from the Council and the Councillor. I find the Council at fault for raising their hopes the application would go to Committee and not advising them without delay when it became clear it would not.
36. We can never know if the Committee on referral would have granted or refused the application. However, on the balance of probabilities and the Chair’s later comments it is likely the Chair would not have agreed to the referral. Therefore, I find the fault did not lead to a different decision on the planning application and that limits the injustice.
37. Planning officers will decide what weight to give the material planning considerations arising from an application. That includes the likely impact on a heritage asset. The case officer needs to weigh any likely harm to the heritage asset against the public benefit of the proposed development. The case officer’s report mentions the heritage asset but does not reflect in detail the case officer’s view. The Council says the case officer included the test in focussing on the impact on the heritage asset, and the impact on the conservation area. Plus, he considered the benefit of providing extra housing without harm to the conservation area. To balance the impact caused by the loss of the trees a legal agreement provides for replacement trees. I find that while the report does not set out in detail how the proposal meets the test in the exercise of their professional judgement the planning officer has duly considered the impact. It is clear from the reference to the heritage asset the case officer considers them as important material planning considerations. What weight they have when considering all the material planning considerations is for the decision maker to decide. In deciding the application, the case officer could draw on their professional expertise, comments made by the public and the views of the Conservation Area Panel. If in doubt they could seek expert advice. It is for the case officer to decide if they need further expert advice from Heritage England or a conservation expert. I find they reached the planning decision having considered all relevant information and so acted without fault when considering the merits of the application.

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Agreed action

38. To address the injustice arising from the faults found the Council agrees that within four weeks of my final decision it will:
• Apologise in writing to Mr X and Ms Y,
• Pay Mr X and Ms Y £300 for the time and inconvenience to which they have been put, and in recognition of their dashed expectations;
• Share my final decision with staff to encourage better record keeping;
39. Further, the Council agrees to within three months of my final decision to include in planning officer’s delegated reports the case officer’s reasons for deciding the application is not controversial, sensitive, or likely to have a significant impact on residents. To include also in the planning officer’s delegation reports whether the Chair has exercised their discretion not to refer an application to Planning Committee and record their reasons. The Council further agrees to provide training within these three months to officers to ensure consistency in recording whether an application is controversial, sensitive, or likely to have a significant impact on residents.

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Final decision

40. In completing my investigation, I find the Council acted with fault causing injustice. It has agreed a proportional remedy to address that injustice.

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Investigator's decision on behalf of the Ombudsman