Summary: Mr and Mrs C complain when processing a planning application the Council failed to refer the case to the planning committee for decision, failed to properly consider the application and the impact it would have on surrounding properties, failed to keep site visit notes, failed to respond to Mr and Mrs C’s communications and conducted an unclear decision-making process. There is no fault in how the Council considered the planning application. The Council produced three versions of the report but that did not affect the overall decision.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs C, complain on behalf of themselves and two other neighbours about how the Council considered a planning application. Mr and Mrs C complain the Council:
• failed to refer the application to the planning committee;
• failed to properly apply planning policy;
• failed to consider the impact the development would have on neighbouring properties;
• failed to properly consider the different levels between the site and neighbouring properties;
• failed to keep notes from the site visit;
• failed to ensure the planning officer responded to their communications; and
• conducted an unclear decision-making process as the Council produced different versions of the report for the application.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr and Mrs C disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
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

4. As part of the investigation, I have:
• considered the complaint and Mr and Mrs C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
5. Mr and Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

6. Mr and Mrs C complain about how the Council processed a planning application. Mr and Mrs C also complain on behalf of two other neighbours. All three neighbours occupy properties which have a boundary with the site. The Council granted planning permission for the development. Mr and Mrs C say there are multiple failures in processing that planning application, which I will consider in the remainder of this statement. Mr and Mrs C say as a result the Council has wrongly granted planning permission for a development which will have a significant impact on their amenity and that of their neighbours.

Analysis

7. Mr and Mrs C say the Council should have referred the planning application to the planning committee rather than deciding it under delegated powers. Mr and Mrs C say the Council knew of the history of the site and that previous planning applications had gone to committee and been refused. The documentary evidence I have seen suggests to me the Council refused an application for this site in 1979. I do not consider how an application was processed more than 40 years ago is relevant to how an application was processed in 2020. In any event, the relevant issue is whether the Council’s scheme of delegation required it to refer the matter to committee. I have considered the scheme of delegation. This sets criteria for where planning applications should go to committee. The relevant section says where certain conditions are satisfied the executive director of operations or senior officer should decide in consultation with the Chair of the planning committee whether the application should be referred to the planning committee to decide. The relevant section says where it is intended to decide an application in conflict with representation received from a parish or town council, neighbour or other person or organisation the officer should refer the matter to committee for decision where, in the professional opinion of the officer:
• (i)the representation relates to a planning matter; and
• (ii)the representation and the planning matters raised are directly relevant to the application under consideration; and
• (iii)the planning matters under consideration in the determination of the application are finely balanced.
8. I am satisfied the Council applied the scheme of delegation properly in this case. I say that because the report for the planning application lists the three tests referred to above. The report records the officer’s conclusion although the objections raised satisfied points (i) and (ii) of the scheme of delegation the planning matters raised were not finely balanced. On that basis the delegated officer decided the matter did not need to go to committee. I recognise Mr and Mrs C are likely to strongly disagree with that view. However, as the Council has properly considered its scheme of delegation before deciding to determine the application under delegated powers I have no grounds to criticise it.
9. Mr and Mrs C say the Council failed to apply planning policies LP26 and D5 when granting planning permission for the development. Those two policies concern the design of the development and how it fits into the local area. I am satisfied the report for the planning application listed those two policies as relevant policies. I am satisfied the report went on to discuss how the development fit into the surrounding area, referring to the height of the development, the types of properties surrounding the development site, how the proposed properties will impact on neighbouring properties and the previous grant of planning permission for similar properties for the site. Given that, I could not say the Council had failed to consider its policies. It is clear the Council has reached a view with which Mr and Mrs C disagree. However, as I said in paragraph 2, it is not my role to comment on the merits of a decision reached without fault. I have found no fault here.
10. Mr and Mrs C say the Council, in granting planning permission for the development, failed to consider the impact it would have on neighbouring properties. Mr and Mrs C represent two other neighbours. All have a boundary with the application site. I am satisfied the report for the planning application referred to each of those neighbouring properties and the relationship between the development site and the neighbouring properties. The report specifically referred to the separation distances between the proposed houses and neighbouring properties, the height of the proposed development, how that related to the earlier granted permission and the windows on the various elevations facing neighbouring properties. The report also referred to the objections raised by neighbours. Taking all that into account the report concluded the development would not have an unacceptable impact on neighbouring properties due to the separation distances and the fact the side elevations facing two of the neighbouring properties have only limited windows, with obscure glazed windows to bathrooms. Again, I recognise Mr and Mrs C are unlikely to agree with the Council’s assessment. However, as I am satisfied the Council properly considered how the development would impact on neighbouring properties I have no grounds on which I could criticise it.
11. I am also satisfied when considering the planning application the Council considered how the garages proposed for the site would impact on neighbouring properties. As with the houses, the report records the height of the garages and their closeness to neighbouring properties before deciding the development is acceptable in planning terms. Again, that is a matter of judgement and not one the Ombudsman could comment on as I have found no evidence of fault in how the Council reached the decision.
12. In reaching that view I am aware Mr and Mrs C have referred to the fact the Council previously refused an application for a development on the site. Mr and Mrs C say the properties are now one metre higher than the previous refused application. As I said earlier though, the evidence I have seen satisfies me the Council refused an application for the site in 1979. Since then the Council has granted planning permission for two houses on the site. That was a material planning consideration here. I recognise the houses are now almost one metre taller than the previous approved houses. However, that is made clear in the report. The report records the Council’s view the development is nevertheless acceptable in planning terms due to the distance to neighbouring properties. As I have made clear, it is not my role to comment on the merits of a decision made without fault.
13. Mr and Mrs C also raise concerns about flooding. While I understand Mr and Mrs C’s concern, I am satisfied the Council consulted the lead flood authority which raised no concerns about flooding. I cannot criticise the Council for relying on the lead flood authority’s view.
14. Mr and Mrs C have referred to other planning applications in the area which the Council has refused planning permission for. Mr and Mrs C say this shows the Council is not acting consistently as it refused those applications due to the impact on the amenity of neighbouring properties. I understand Mr and Mrs C’s concern. However, the Council has to consider each application on its merits and no two applications are the same. There will be differences in terms of the types of properties surrounding an application site and differences in separation distances between proposed development and existing properties. In this case I am satisfied the Council properly considered the development and how it would impact on neighbouring properties before reaching its decision. I therefore have no grounds to criticise it.
15. Mr and Mrs C say the Council failed to understand there were differing site levels for surrounding properties and an access road. Mr and Mrs C say the Council therefore failed to understand how dominant the proposed dwellings would be when compared to neighbouring properties. Mr and Mrs C say the Council ignored their representations about that and instead relied on wrong information from the planning agent about site levels. I have found no evidence to support Mr and Mrs C’s allegation. I am aware the planning officer contacted the agent about the site levels when neighbours raised concerns about different levels. However, I am satisfied the planning officer made that contact to confirm his view, based on his earlier site visit, there was no difference in levels. In any event, I am satisfied the report for the planning application made clear there was a difference in level between the application site and one neighbouring property. The report for the planning application recorded the officer’s view that due to the distance between the two properties and as the proposed development was less than one metre higher than the dwellings permitted under the previous permission the impact was acceptable in planning terms. I recognise that is unlikely to be a view shared by the neighbour whose land is at a different level and whom Mr and Mrs C represent. However, I have made clear throughout it is not my role to comment on the merits of a decision reached without fault. I have found no fault here.
16. I can understand Mr and Mrs C’s concern about whether the planning officer properly understood the difference in site levels though given earlier versions of the report, which I will come on to later, did not refer to one of the neighbouring properties as at a lower level. I am satisfied though the planning officer amended those earlier versions of the report at the request of the delegated officer. The final report made clear there was a difference in level to one of the neighbouring properties. I am therefore satisfied the Council took that issue into account properly.
17. Mr and Mrs C say the plans for the development did not show the height levels for the properties and garages and therefore the planning officer could not have assessed their impact properly. Having considered the plans though I note all the plans are drawn to scale. I am therefore satisfied the planning officer could establish the height of the properties and garages using a scale rule, which is normal practice in planning departments. As I said earlier, I am satisfied the report for the application made clear what height the development would sit at. I therefore have no grounds to criticise the Council.
18. Mr and Mrs C raise concerns about whether the applicant intended to raise the site levels. In recent correspondence with me Mr and Mrs C say the developer has raised ground levels. There is no evidence in the planning application though to suggest the applicant intended to raise the ground levels. In fact, when questioned about that the planning agent said the applicant did not intend to increase the ground level. The Council has granted planning permission based on the plans presented. The applicant therefore does not have permission to increase ground levels. If that has since happened this will be a matter Mr and Mrs C will need to raise with the Council as it is an enforcement issue.
19. Mr and Mrs C say the planning officer that conducted the site visit did not keep written notes. I am satisfied though the planning officer took photographs on the site visit to refer to when writing the report. Those photographs were also available to the delegated officer. As I am satisfied the planning officer took photographs and there is no requirement for officers to keep written notes I have no grounds to criticise the Council.
20. Mr and Mrs C say the planning officer failed to respond to their communications about the development where they were seeking to discuss the application. Mr and Mrs C also say the planning officer did not visit any neighbouring properties. While I understand Mr and Mrs C’s concern there is no requirement for the Council to visit neighbouring properties before deciding a planning application. Nor is it usual for planning officers to reply to correspondence from those objecting to a planning application. Indeed, most councils would not have the resources to do that. Consultation letters issued to neighbouring properties normally make clear the Council cannot enter into discussion about a planning application. I therefore cannot criticise the Council either for not visiting Mr and Mrs C’s property or other neighbouring properties or for not responding to the objections they provided. The Council has accepted though it should have acknowledged receipt of Mr and Mrs C’s email seeking clarification that their objections had been considered. The Council has apologised for that. I consider that a reasonable outcome for this part of the complaint.
21. Mr and Mrs C say the Council’s decision-making process was unclear as there were three different versions of the report produced for the planning application. The Council accepts the planning officer created three different versions of the report, which is fault. The first version of the report was submitted to the delegated officer who asked for some amendments. It appears when making those amendments the planning officer saved different versions of the report before referring the final report to the delegated officer. I can understand Mr and Mrs C’s confusion about whether the process was followed properly in those circumstances. The Council accepts it should not have produced more than one version of the report and has apologised. I do not consider any further remedy appropriate here. That is because I am satisfied the production of three different reports did not affect the overall decision-making process. Instead, the evidence I have seen satisfies me it was the delegated officer that wanted the planning officer to set out more of his reasoning in the report in relation to the impact the development would have on one neighbouring property. I have seen no evidence to suggest the delegated officer granted permission based on a misunderstanding about what was being proposed or how it would impact on neighbouring properties. In those circumstances I consider the Council’s apology satisfactory remedy. I also understand the Council has briefed the whole planning team on the process to follow when creating and amending reports as well as the planning officer involved in this case to prevent a similar situation happening again. I welcome that.

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Final decision

22. I have completed my investigation. I have found the Council at fault for issuing three versions of the report for the planning application but do not consider that caused Mr and Mrs C any injustice.

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Investigator's decision on behalf of the Ombudsman