Summary: Mr B complains that there was fault in the way the Council considered the application to demolish the neighbouring house and construct two semi-detached houses in its place. The Ombudsman has found some errors in the decision of the application and the officer’s report. But we do not consider that these are such as to have affected the decision to approve the application.

The complaint

1. Mr B complains that there was fault in the way the Council granted planning permission to demolish a detached house next door to his house and replace it with two semi-detached houses.
2. He considers that:
• there were inconsistencies, omissions, and misleading statements in the case officer’s report, which meant that the Chair of the Planning Committee did not have accurate information on which to decide whether to refer the application to the Planning Committee or authorise a delegated decision;
• the Case Officer recommended approval of the application despite previously suggesting that she was minded to recommend refusal and despite the applicant not making all the changes to the proposals that she recommended;
• the Planning Agent appeared to know in advance that the decision would be taken under delegated authority and that approval would be given;
• the Council has not properly explained the reason for not referring the application to the Planning Committee;
• the Planning Permission is invalid because the description of the proposals in the Decision Notice is incorrect.

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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 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 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. If we are satisfied with a body’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 B’s written complaint and discussed his complaint with him. I have considered the complaint correspondence and planning papers. I have had regard to relevant legislation and guidance. I have also sent Mr B and the Council a draft decision and considered their comments.

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What I found

Legal and Administrative background

7. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
8. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
9. 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. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission.
10. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities). However, it is for the decision-maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

11. Mr B owns and lives in a detached house in a street with a mix of detached and semi-detached houses. The neighbouring house to the south of Mr B’s house is a detached house on a corner plot. This backs onto the side of his house and back garden. The neighbouring house has a hipped roof and faces a steep hill with a stepped terrace of houses further up the hill, and semi-detached houses opposite. Due to the difference in land levels, the ground level of the neighbouring house is higher than that of Mr B’s house. This, together with the boundary fences and hedges, means that the back of Mr B’s house and back garden are somewhat enclosed and receive limited sunlight.
12. The owners of the neighbouring house contacted the Council to seek pre- application advice for a proposal to demolish the existing house and build three houses on the site - two semi-detached and one detached.
13. The Council’s pre-application advice is summarised in the Design and Access Statement submitted with the subsequent planning application. This included concerns about: overdevelopment of the site; four storeys facing the street being over-dominant; not respecting the building line; damaging the greenness of the site; and not meet parking standards. The Council also advised that the proposals should take architectural clues from the neighbouring terrace but had no significant concerns about overlooking or overshadowing.
14. The owners then submitted a planning application to demolish the existing house and replace it with two detached houses. These would be around one metre taller than the existing house, with gable roofs to the front and rear. The plans showed the house on the lower part of the plot (Unit 1) with a rear gable end extending close to the boundary with Mr B’s house and projecting forward of the front building line of Mr B’s house. The house on the upper part of the plot (Unit 2) would be wider than Unit 1.
15. The Council consulted on the application. It received objections from neighbours including Mr B. Mr B also contacted his local ward councillor and asked that the application be called-in to be decided by the Planning Committee.
16. The case officer carried out a site visit to consider the impact of the proposals. She met Mr B at his home, listened to his concerns and took a series of photographs of the application site and surrounding properties.
17. The applicant’s agent contacted the case officer for feedback on the revised proposals. The case officer said she felt the proposals continued to result in overdevelopment of the site, failed to respond to local character and would be overbearing in respect of Mr B’s house. She suggested reducing the scale of the houses and proximity to neighbours and reviewing the design details. She felt that the principle of two houses of an appropriate scale and siting could be acceptable and suggested the agent may wish to consider a pair of semi-detached houses.
18. The agent submitted revised plans reducing the set-forward of the side of Unit 1 relative to the front of Mr B’s house from three to two metres. The proposals also included a “cat-slide” roof (i.e., a roof extending below the eaves) at the back of Unit 1 to mitigate the impact on Mr B’s house. The case officer was unconvinced by the two-metre set-forward, the proximity and scale of the Unit 1 relative to Mr B’s house, and the building heights. She also did not consider the cat-slide roof reflected local design. She suggested that the scheme as submitted would likely be refused.
19. The agent then submitted plans for two semi-detached houses. These omitted the full-height rear projection from Unit 1, leaving a rear and side projection at lower ground floor level. The side of Unit 1 would also only project slightly forward of the front of Mr B’s house. The plans were then further revised to remove an upper side window from Unit 1.
20. The case officer prepared a delegated report. This described the location and proposals. It summarised consultee responses and comments and objections from neighbours. It noted that the ward councillor had requested the application be considered by the Planning Committee if officers were minded to approve it.
21. The report set out relevant local and national planning policies. It identified the main planning issues: character and appearance; residential amenity; highways safety and parking; flooding and drainage; contamination; and sustainable construction and other matters. It then considered each of these issues with reference to relevant policies. The case officer concluded that the proposals complied with the relevant planning policies and so recommended approval.
22. Following the ward councillor’s request, the application was put to the Chair and Vice Chair of the Planning Committee – the delegation form set out the proposals, key considerations, comments received, and the case officer’s assessment and recommendation. The Chair also had access to the full planning file.
23. The Chair noted the concerns of residents and the ward councillor. But, having considered the application against the relevant policies and noting the considerable changes that the applicant had made to meet officers’ requirements, he was happy to delegate the decision to officers. The Vice Chair noted that the proposals had been amended and assessed against relevant policies. However, given residents continuing concerns she recommended the application be considered by the Planning Committee. Under the Council’s scheme of delegation, the Chair’s vote takes precedence where there is a difference of views, so the application was then considered under delegated authority and approved by the Head of Planning.
24. Mr B complained to the Council. The Council accepted there had been some minor inaccuracies in the officer’s report, but not such as to affect the decision.

My assessment

Errors / inaccuracies in officer’s report

25. Mr B considers that there are incorrect and/or misleading descriptions and statements in the officer’s report. As a result, he considers that the Chair of the Planning Committee did not have accurate information on which to decide whether or not to allow a delegated decision.
26. I have considered below the areas of concern that Mr B has raised. However, it important to note that the full planning file, including the plans and photographs from the site visit was available to decision-makers, including the Chair and Vice Chair of the Planning Committee, and the Head of Planning who granted planning permission under delegated authority.
27. Incorrect reference to Unit 2 – Mr B complains that the officer’s report wrongly refers to Unit 2 rather than Unit 1 when considering the impact on Mr B’s house.
28. The Council accepts that this was fault but does not consider this significant as the case officer was clearly considering the relationship between Unit 1 and Mr B’s house.
29. I see no grounds to question the Council’s view. It would be clear to decision-makers from looking at the plans what relationship was being considered.
30. Reference to depth of Unit 1 being narrower than width of Mr B’s house – Mr B considers this reference to be misleading because the lower ground floor of Unit 1 is much wider than his home. Moreover, the width of the main part of the house, including the porch, is the same.
31. The Council has explained that the substantive part of Unit 1 (excluding the porch), which appears as the main building, is narrower than the front of Mr B’s house and the lower ground floor is not prominent in the streetscene.
32. I do not consider the wording to be misleading in terms of the streetscene. The decision-makers would in any event be informed by the plans.
33. Reference to three storeys – Mr B questions the report’s statement that the elevation of [Unit 1] would appear as two storeys rather than three, when it would appear as three storeys from his street.
34. I see no fault here. I consider that the description reasonably describes the appearance of the side elevation from the street.
35. Footprint – Mr B considers the description of the house being on a similar footprint to the existing house to be misleading, given that the area of the footprint (including the lower ground floor element) is 60% larger.
36. The Council has explained that the report was suggesting that the proposed house would be located on a similar footprint to the existing house.
37. I do not consider this to be misleading, when viewed with the plans. Clearly the lower ground floor element extends beyond the existing footprint but this element is largely within the slope. As can be seen from the plans, the substantive part of the building above ground is on a similar footprint to the existing building.
38. Step-down - Mr B considers the report to be misleading as it says the properties have now been stepped down in height “following the cues from the… terrace [and] draws on the ridge and eaves height of these properties”.
39. It may be that the use of the word “now” is unnecessary as the previous plans also showed stepped down properties, but I do not consider this significant as the description itself is accurate.
40. Distance between buildings – Mr B considers the report wrongly says the distance between his house and Unit 1 is 7.5 metres.
41. The Council has explained that this represents the distance between the side walls of the main part of each building but accepts that this could have been explained more clearly in the report.
42. I do not consider that this is likely to have misled decision-makers because the plans clearly show the relationship between Unit 1 and Mr B’s house.
43. Reference to three storey-houses in Mr B’s street – Mr B has complained that the report wrongly refers to properties in his street as being three storeys. He says only his house was built as a three-storey house, though some houses have undercrofts as the land falls away sharply.
44. The Council accepts that this description is incorrect. But it does not consider that this materially influenced the Chair’s decision not to call in the application. It notes that the report describes the area as having a mix of types of house and that the proposed houses would appear as two storeys facing the hill. Moreover, the Chair could also view the plans and site photographs.
45. This was fault, but I see no reasons to disagree with the Council’s assessment that this is unlikely to have affected the Chair’s decision. The plans show the relationship of the proposed houses to the terraced houses further up the hill. They also show the relationship between Unit 1 and Mrs B’s house. Moreover, the photographs from the site visit clearly show the streetscene from the front of the development site and from Mr B’s road, including houses further along the street from his own. So, the officer’s report comprised only a limited part of the information available to assess the impact on the streetscene.
46. Overshadowing, loss of light and privacy – Mr B considers that the report does not adequately address the concerns he raised.
47. The report refers to objections received on the above grounds. It describes the proposals and the relationship between the proposed house and Mr B’s house, and this is also clearly shown in the plans. The “Residential Amenity” section of the report makes specific reference to Mr B’s home. The report then goes on to discuss the issues of overshadowing, overlooking, and overbearing.
48. Mr B disagrees with the case officer’s assessment that the degree of additional overshadowing will be acceptable and not substantially greater than the existing. The Council’s policies do not include any specific measure to assess the degree of overshadowing. Rather, the acceptability of the additional overshadowing is a subjective judgment and the decision-makers were able to form a view with reference to the plans and site photographs.
49. The report also refers to loss of privacy but accepts that there will be some overlooking in residential areas and this will partly be mitigated by a planting screen. In the officer’s judgement the new houses would not be overbearing such as to significantly harm Mr B’s amenity.
50. I appreciate that Mr B disagrees with these judgments, but I consider that the decision-makers had sufficient information available to them to form their own views.
51. Noise / lack of amenity space / loss of enclosure – Mr B says that no justification has been provided in respect of the noise impact, given that there are folding doors across the rear of unit 2. There is also no reference to the lack of amenity space or to the loss of enclosure in front of the dwellings.
52. There is no requirement to discuss every planning consideration in detail in the report. It is not clear to me that the replacement of one family home with two would result in such a change in noise levels as to require a detailed analysis. Moreover, the report refers to both dwellings having garden space to the rear, and this is shown in the plans, so this was clearly considered acceptable.
53. I note that there is no reference to the loss of enclosure in front of the dwellings, but this is clear from the plans, and I note that the terraced houses which also face that street are not enclosed.
54. Different roof profiles – Mr B notes that the report refers to the new house being a metre higher than the existing house but makes no reference to the change in roof profile, which will impact more on his home.
55. I see no fault here. The reference to the difference in heights is correct. The change in roof form and scale is clearly shown in the plans and would be apparent to decision-makers.
56. Height of proposed houses – Mr B questions the statement in the report that the proposal is considered of an acceptable scale. In his view, the new houses are completely out of scale compared with his property due to their height and the differential in land levels.
57. I appreciate that Mr B disagrees with the judgment set out in the report. But the plans clearly show the relationship between the new houses and Mr B’s house, so decision-makers could form their own judgment as to whether the scale of the new houses was acceptable.
58. Reference to Victorian properties – Mr B has observed that the officer’s report refers to a terrace of Victorian properties when they are in fact Edwardian.
59. This may be an error, but I cannot see that this has any bearing on the decision.

Case Officer assessment

60. Site visit - Mr B says that, at the site visit, the case officer expressed sympathy at the existing loss of amenity and told him she was minded to refuse the application, but then went on to recommend approval. He has referred to the recommendations on notetaking in the Ombudsman’s December 2014 Focus Report entitled Not in my back yard: Local people and the planning process. He considers that the lack of notes meant that the officer did not properly consider the impact on his amenity.
61. The Council says its usual practice is for case officers not to produce specific reports on site visits but to feed the information into the delegated report.
62. The Ombudsman’s Focus Report states “Where site visits are carried out, we would expect officers to make notes and take photographs to record what they found. This can help them to re-member what they saw when they are in the office considering the application…”. The Ombudsman would therefore generally consider it good practice to keep a written record of site visits. But that is for the Council to decide, and not keeping notes does not in itself mean that there has been fault in the consideration of an application.
63. In this case, the case officer had already provided formal pre-application advice, as a result of which the applicant had submitted amended plans. The officer then undertook a site visit. Although the officer did not keep written notes, she took 48 photographs from a range of locations on both streets, from within the application site itself, from within the complainant’s property and the facing property. She then sought and secured further changes to the proposals.
64. I see no fault here. The officer had visited the site. The photographs taken were extensive and, together with the plans, would allow the case officer and decision-maker to reach an informed view on the application.
65. Failure to require compliance with earlier recommendations to agent – Mr B complains that the case officer twice objected to the proposals for two detached houses, saying that the heights were “unacceptable”, but then recommended approval of two semi-detached houses of the same height. He also does not consider that the approved plans reflect the pre-application advice that a pair of modest semi-detached houses would be more acceptable.
66. The approved semi-detached houses are the same height as the two detached houses. However, the Council is not bound by the advice and recommendations it has made. Rather it is for the Council to consider the proposals put before it.
67. There were a series of changes made to the proposals. These included a reduction in the combined width of the two houses, and the width of Unit 2, the removal of the main rear element of Unit 1, setting back the building line of Unit 1, and the removal of the upper side window from Unit 1. Although, as was clear from the plans, the buildings heights were not reduced, the case officer considered that the cumulative changes were sufficient to overcome the concerns previously raised. The decision-maker agreed with that view. That is not fault.

Emails from planning agent

68. Mr B has referred to an email from the planning agent to the case officer “making sure everything was ok for a delegated approval on Friday”. He considers that this shows that the agent was confident that the application would never reach the Planning Committee.
69. The agent’s assumption that the application would soon be approved was clearly incorrect, given that the response from the case officer was that she was minded to refuse the application as submitted.
70. Mr B has also referred to a later email from the agent to the case officer asking to make sure that the application would be approved under delegated powers. He says this demonstrates that the agent knew in advance that the decision would be approved and that it would not go to the Planning Committee.
71. I do not share Mr B’s views in this regard. The agent may well have considered that officers were likely to recommend approval given that the plans had been through a series of changes in order to try to meet the requirements of officers. The agent may also have assumed that the decision would be taken under delegated authority. I do not know the source of the agent’s assumption but it was clearly premature at that stage as no such decision had yet been made.

Decision not to call-in the application

72. Mr B does not consider that the Council has explained why the Chair did not forward the matter to the Planning Committee.
73. The Chair stated on the delegation form, “I have considered the application against the relevant policies and have noted the concerns of residents and ward councillor. I also note the considerable changes made by the applicant to meet the requirements of officers. I am therefore content to delegate this decision to the officer.” In my view, the Chair’s reasoning is quite clear.
74. Mr B also considers that the Chair incorrectly stated to a third party that he and the Vice Chair agreed that the application should not be forwarded to the planning Committee.
75. That is not the case. The Chair made no reference to the Vice Chair’s recommendation to refer. Instead, the Chair stated that “both myself and the Vice Chair were clear that this application adhered to the rules”.
76. I do not consider that statement to be inconsistent with the Vice Chair’s statement that “The proposal as it now stands has been assessed against relevant planning policy as the report explains”. The Vice Chair’s call-in recommendation seems to have been made due to [objectors’] continuing concerns.

Validity of Decision Notice

77. Mr B says the Decision Notice is invalid because it refers to two detached rather than semi-detached houses.
78. The Council accepts that there was an error in updating the decision when the plans changed. It will remind officers of the need to update descriptions in the event of significant changes. However, decision-makers were clearly aware from the officer’s report and the plans what was being proposed and approved. Moreover, the developer is obliged to follow the approved drawings which are for two semi-detached houses. Given this, the Council sees no public benefit in seeking to correct the error or refusing to discharge conditions.
79. Clearly this was an error, but I do not consider that this has caused any injustice because the developer has to carry out the development in accordance with approved plans.

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Final decision

80. I have closed my investigation into Mr B’s complaint because, although there were some errors on the part of the Council, I see no grounds to conclude that this affected the outcome of the application.

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Investigator's decision on behalf of the Ombudsman