Summary: Mrs C complained about the Council’s consideration of a planning application to build two semi-detached cottages. Mrs C said she and her neighbours would suffer from an unacceptable development which would harm their amenity and the character of the Conservation Area. We found fault in the decision-making process. However, there was no injustice to Mrs C or her neighbours because the Ombudsman cannot say that, but for the fault, the outcome would have been different.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains on her own behalf and for two neighbours about the Council’s consideration of a planning application for two semi-detached houses. In particular, Mrs C complains:

• there were errors and omissions in the case officer’s report to the Planning Committee
• officers provided misleading and incorrect comments and evidence at the Planning Committee meeting
• the decision was inconsistent with a previous decision in 2018 to refuse a similar application
• the assessment of the impact on the amenity of existing residents and on the Conservation Area was faulty
• there was unreasonable delay in the Council’s response to the complaint

2. Mrs C says because of the Council’s fault she and her neighbours will suffer from an unacceptable development which will have a harmful impact on their amenity and the character of the Conservation Area.

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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. 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. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I read the papers provided by Mrs C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Mrs C. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background

8. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
9. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
10. 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.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
12. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made.

Key events

The application

13. The Council received an application for two semi-detached properties in June 2019. The case officer’s report for the application sets out the details of the proposals, the planning history of the site and that the application was seeking to overcome the reasons for refusal of an earlier application. The report went on to set out the material considerations and a summary of the representations received and provided an assessment of these resulting in a recommendation for approval.
14. The application was considered by the Council’s Planning Committee. Both a Town Councillor and local Ward Councillor addressed the Committee to object to the proposals as well as a local resident. Following consideration of the case officer’s report, an update report, presentation and representations made at the meeting the Committee resolved to approve the application.

Errors and omissions in case officer’s report to Planning Committee

15. A local resident wrote to Committee members ahead of the meeting to outline errors identified in the case officer’s report with supporting appendices. In summary, the resident highlighted the following:

• reference to infill and modern properties when only one property had been changed or added since the Ordnance Survey Map of 1887
• reference to a pair of more modern construction properties when they appeared on a map of 1852
• the description of one property as a modern two storey house when it pre-dated 1852
• reference to some of the larger properties being converted to flats when this was not the case
• the dismissal of concern about the scale and mass of the proposals despite it being 1.6 metres higher than a particular property which was only 16 metres away and over 1 metre higher than the other immediate neighbouring properties
• the description of the proposals as being similar in scale and proportions to two nearby properties when they would be 42% larger by volume
• the reference to ample amenity space of the proposed dwellings without explaining this was at the expense of reducing amenity areas of adjacent properties to zero contrary to policy
• the reference to the original planning permission not having a planning condition restricting the use of the land as amenity space for the existing occupiers as being redundant as such a condition would not be normal and there had been significant correspondence about the issue at the time of the previous application
• the report did not highlight the reduction of parking to two properties below the minimum standard
• the description of properties next to the site as being two storey was incorrect as they were three story from the rear aspect with the bottom floor being about half a floor below ground level and the main reception rooms raised significantly above ground level which meant they would have direct line of sight over any 2 metre means of enclosure and both cause and suffer from overlooking with one property having a habitable room on the top floor at a distance of 22metres and the report had wrongly applied the separation distance for two storey properties
• the description of the relationship to the terrace as being the side elevation of the proposals was misleading as this elevation had four double, one triple and one French window
• the relationship of one property which had a habitable room on the second floor did not meet the 45 degree rule
• there was one property which had been wrongly described as being part of the former public house and it was not clear how the amenity of this property had been considered
• the application had only been changed in minor detail from the previously refused application and the reasons for refusal (which were set out in full with a commentary) were still valid

16. The Committee received an ‘Additional Observations’ report ahead of its meeting which set out that an additional representation had been received. This report stated that the street scene had a mix of styles of properties from different periods; one property had been demolished and six flats built in its place; two properties did not benefit from any private amenity space and the properties next to the site were mainly two storey with some having loft conversions and/or basement areas but the separation distances applied in the case officer’s report remained correct.
17. The case officer’s report had described the properties overlooking the site as being two storey and applied a separation distance of 22 metres between the properties and the proposed development.
18. The Council’s Residential Design Guide (RDG) provides the following distance separation between properties facing each other:

• 22 metres from a two storey dwelling to a bungalow or two story dwelling
• 27 metres between a two storey dwelling and a two storey dwelling with habitable rooms on the first floor other than bedrooms
• 27 metres between a two storey dwelling and three storey dwelling
• 32 metres between two or three storey dwelling house or flats to three storey dwelling house/flats with habitable rooms on second floor other than bedrooms
• Reduced distances are applied when facing a blank gable end or obscure glazed windows

19. The Council accepted during the first stage of its complaint response that the rear elevations of the relevant properties closest to the site were three storeys including a lower floor which sat below street level but above the levels of the rear garden as the garden areas of the properties were significantly below street level. The Council went on to consider if it was reasonable to describe the lower floors of these properties as basement areas in the additional report to the Committee. The Council accepted it would have been preferable for the case officer’s report and/or the Additional Observations report to provide specific and accurate information about the particular configuration of the properties.
20. The Council went on to consider if the correct separation distance had been applied given the particular configuration of the properties. The Council considered the relationship was not one of the standard configurations covered in its RDG and so a degree of judgement was required. The Council considered the application of the 22 metre separation distance was acceptable but recognised a case could be argued to apply the 27 metre separation distance.
21. Mrs C says that all the properties along the relevant terrace have this additional floor making them three storey properties and that the bottom and middle floor are habitable rooms with windows or french doors overlooking the site which is not the impression provided by the term ‘basement.’ Mrs C also says the ground level of the terrace properties is at the same level as the garden of the development site which means the lower floors of the terrace will be half a storey higher than the ground floor of the development not lower as suggested above. Mrs C says the actual separation distance at the closest point is 20.8 metres rather than 22 metres.
22. I should explain that a council may normally expect a distance between first floor facing house windows of 22 metres but the distance in an otherwise acceptable scheme is 20 metres. We take the view that it is doubtful such a discrepancy would be discernible to the naked eye and it would be only one of many issues being taken into account. 
23. The case officer’s report also refers to a first floor window of the former public house which was converted to a residential property. The Council accepted in its complaint correspondence that the direct relationship was not with the former public house but another property. Mrs C says this affected the assessment of whether the relationship met the requirements of the Council’s RDG. The Council noted the report set out that the property first floor window was to a habitable room and the rear elevation of the proposed dwellings immediately to the rear of the property did not contain any windows other than one obscure glazed bathroom window and the nearest point of the proposed dwelling with no rear windows was 16 metres from the property. The Council also noted the proposed dwelling with windows in the rear elevation was at an angle to the property and did not have a facing relationship as set out in the RDG. Mrs C also raised an issue about the 45 degree rule as set out in the RDG. The Council’s complaint correspondence confirms the use of the rule generally applies to distances of 8 metres and under and the alleged breach relates to a distance of about 16 metres which would not be considered to present an issue. I note the RDG refers to the 45 degree rule mainly in relation to the impact of extensions on neighbouring properties.
24. Mrs C also complained that there was no reference in the case officer’s report to the impact on the residential amenity of some nearby flats. The Council noted in its complaint correspondence that the flats were 23 metres from the nearest window of the proposed dwellings and this was at a significant angle which did not provide a ‘facing’ relationship and so the relevant distance separation of 32 metres did not apply.
25. The Council also accepted that the case officer’s report incorrectly described some properties as being of a more modern construction when they were historic and probably pre-dated the adjacent Victorian Terraces. The Council further accepted this error had the potential to have misinformed the Committee regarding the nature of the Conservation Area and the impact of the proposal on this. However, the Council also noted that one of the public speakers highlighted the error during the consideration of the item at the Committee meeting and this prompted one of the Councillors to ask a question to clarify the historic nature of the buildings and the presenting officer agreed the buildings were likely to be historic. The Council considered the Planning Committee reached their decision with a reasonable understanding of the historic nature of the adjacent buildings despite the error in the case officer’s report.
26. The case officer’s report also set out that the area was dominated by Victorian terraces but these were interspersed with other historic buildings and modern infills. The Council accepts that in the immediate area of the site there was only one property of a more modern construction but considered the wider Conservation Area was reasonably characterised in the report as being dominated by Victorian terraces and in the wider area these were interspersed with more modern properties.
27. The case officer’s report also set out that some of the properties on a particular Terrace had been converted to flats. However, the only property in use as flats was a new build rather than a conversion. The Council accepted during its complaint correspondence that the remaining properties in this particular Terrace were single dwellings and had not been converted to flats and so this was an error in the case officer’s report. However, the Council did not consider this error was likely to have affected the Committee’s consideration as it did not affect the Committee’s understanding of the nature of the Conservation Area as this designation is based on the physical environment rather than the use of properties.
28. Mrs C also raised concerns the case officer’s report did not accurately describe the scale and height of the proposed new dwellings. The report stated, “the proposed dwellings would be a semi-detached pair, of similar scale and proportions to [two named properties].” The Council considered information provided during its consideration of the complaint which suggested the proposed dwellings would be 42% larger than the two named properties and the height would be over 1 metre higher. The Council accepted this information and that the case officer’s report should have described the scale and the relationship with the neighbouring properties more accurately. However, the Council noted that Councillors asked questions about the issues of scale and height and it was confirmed the scale was larger although without information as to how much larger and the proposals would be higher by around 1 metre.
29. There followed a further detailed report by the Council’s Senior Solicitor at Stage 2 of the Council’s complaint procedure. This also upheld elements of the complaint that related to the errors and lack of clarity in the officer’s report to the Committee and the additional observation report. In particular the failure of the case officer’s report to:

• describe some Terrace properties as 2-3 storey and analyse which separation distance guidance should be applied and why;
• analyse the impact of the development on the amenity of Terrace gardens (and vice versa) and conflict with judgement reached on this issue in an earlier 2018 application report;
• provide detail as to differences between design of earlier scheme and 2019 application and to explain why case officers had arrived at different conclusions as to impact on Conservation Area; and
• correctly identify some properties as historic properties predating many of the surrounding buildings

30. The Council considered the application of the 22 metre separation distance without adequate explanation to be the most serious error with the lack of analysis about the conflicting judgements on the impact on a particular Terrace also being material. However, the Council noted the Committee were made aware of the previous refusals and asked questions to clarify what was different about the application before them. They were also aware the properties could not simply be described as two storey at the rear and had read and heard the objectors’ representations about insufficient separation distances between the new properties and a particular Terrace.
31. The Council also point to the RDG as being guidance and that this case did not fall neatly within the examples outlined in the guide. The Council considered the presentation to the Committee with the plans and information provided by officers and objectors did allow the Committee to understand the relationship between the particular Terrace and the proposed development and to properly assess the application. It was also noted that the Committee asked questions about the height and mass including specifically whether the planning officer could confirm a difference in volume of some 42% when compared to two particular properties. The officer agreed this was likely making the point that the two properties were only two storey to the front so this would be likely to account for the difference in volume. The officer was also asked if the new dwellings would be 1.1m higher than surrounding properties including the Terrace and the officer agreed this would be the approximate difference in height.
32. I am satisfied there was incorrect and misleading information contained in the case officer’s report to the Planning Committee which the subsequent additional observations report did not adequately address. This constitutes fault.

Misleading and incorrect comments and evidence to the Planning Committee

33. Mrs C says a video played to the Committee failed to show some neighbouring properties including those along a particular terrace or the impact of the proposals on these properties. Mrs C also noted the Committee did not make a site visit.
34. The Council confirmed the Committee were shown three videos of the site including one with a 360 degree view of the site although one property was screened by trees. It was noted the videos showed the upper floor of some properties rather than the middle or ground floor. Mrs C says most of the terrace properties adjoining the site cannot be seen in the videos other than a brief glimpse of the top floor of one property as they were obscured by a large tree at the time.
35. My review of the videos confirms the limited view as expressed by Mrs C above. However, the Committee also had the plans and information from the representations about the proximity of neighbouring properties. I am satisfied the Committee had enough relevant information to understand the relationship of the proposals to the residential properties nearby.
36. The Council noted during its complaint correspondence that one Councillor had sought a site visit but neither the Chair of the Planning Committee nor the Vice-Chair was available ahead of the meeting and the relevant Council officer decided not to hold a site visit as only one request had been received which was in line with previous practice.
37. There is no requirement to make a site visit. It would have been a matter for the Committee to defer a decision on this item if Councillors considered they did not have enough information to reach a view on the proposals including to arrange a site visit if this had been considered necessary. However, it would be good practice for the Council to have a written policy or procedure for dealing with such requests in future.
38. Mrs C also raised further concerns about information provided at the Planning Committee. This included what the Council accept was an ill-advised comment by the presenting officer at the Committee about the possibility of future applications on the site.
39. The Council considered this comment was mitigated as a Committee member reminded all members of the training they had received about not speculating on future applications and the need to focus on the application before them. In the circumstances, I do not see that this comment can reasonably be said to have affected the outcome.

Decision inconsistent with 2018 decision to refuse similar application

40. The three reasons provided for the refusal of the second 2018 application were:

• application site was in flood zone 2 and not enough information had been provided to assess whether the development would be resilient to surface water, fluvial and pluvial flooding and failed the sequential test for flooding with no wider sustainability benefit to outweigh the flood risk
• the proposed dwellings would not harmonise well with the existing street scene or Conservation Area and the proposal appeared at odds with the existing character of the area and would appear to be of a contrived and poorly considered design with regards to the position of windows and large amounts of brick walls in particular – this notes the harm identified was considered less than substantial but considered there was no public benefits to outweigh the harm
• the application would result in the loss of amenity to existing residents of a particular terrace through the loss of amenity space and on these and other neighbouring properties in terms of overlooking and loss of privacy and adverse impact of new parking provision

41. At the Committee meeting, officers explained that further flood risk evidence had been provided with the application and that this had been assessed by both the Environment Agency and the Lead Local Flood Authority (LLFA) with no objection or concerns about the information provided with the Flood Risk Assessment (FRA). Mrs C says there were errors in the FRA in relation to historic flooding.
42. I note the Committee had access to the FRA and evidence provided by objectors. I also note the Council’s argument that irrespective of the accuracy of information relating to historic flood events it would be difficult to sustain a reason for refusal on flooding grounds when both LLFA and the Environment Agency had not raised an objection. It is not fault for the Council to rely on information provided by its statutory consultees.
43. In terms of design and the Conservation Area, Mrs C considered officers focused on minor or irrelevant changes to the proposal as examples of how the scheme had changed. The case officer’s report refers to the issues with the previous application in terms of the judgement that it did not harmonise well with the street scene and conservation area and sets out the reasons why they have reached a different judgement for the 2019 application. The Council accepted in its complaint correspondence that further analysis of the differences between the two schemes would have been helpful. However, the Council noted that there were differences in the design of the two schemes and it was reasonable for two case officers to reach different judgements. It was then a matter for the Planning Committee to reach a view on the planning balance.
44. Mrs C says officers did not explain the different planning judgements made regarding amenity between the two applications. The Council noted that officers informed the Committee of the planning history and presented slides of previous schemes for the site including the previous application. The Committee also asked questions including comparisons between the schemes.
45. The Council has accepted the specific issue of overlooking to gardens should have been set out more clearly in the report to Committee. The overlooking issue was queried by a Councillor during the Committee meeting and the Council considers that it is unlikely that an analysis of this issue in the Committee report would have led to a different decision.
46. It is important to note that earlier decisions do not set precedents. Each planning application must be decided on its own merits against planning policies and other considerations that exist at the time. It is also possible for different decision makers to reach different decisions without fault.
47. I consider it would have been good practice for the case officer’s report to have provided more explanation for the view that residential amenity was not unacceptably harmed by the proposals when compared with the previous application. However, I am satisfied the Committee was well aware of the previous planning history at the site and the reasons for previous decisions. The representation made to the Committee directly also highlighted the view that there was little difference between the applications. It was for the Committee to reach its own view of the planning merits and I consider it had enough relevant information to do so.

Assessment of residential impact and Conservation Area

48. In addition to the issues detailed above, Mrs C said the application affected the amenity space and parking availability for nearby properties which had been an essential part of the original planning decision and should have been maintained. The Council reviewed the planning conditions for the relevant permission which dated from 1994. These required the development to be built in accordance with the plans with no requirement that the garden was retained in perpetuity. The Council concluded the division was lawful in planning terms and a specific assessment of the impact of this in the case officer’s report was not required.
49. I note the case officer’s report explained the site was made up of a former area of private amenity space previously associated with one property which was now flats, a communal parking area and the garden of a former public house. I see no fault in the information provided to the Committee on this particular point.

Delay in the Council’s response to the complaint

50. Mrs C complained to the Council on behalf of other residents on 4 September 2019. The Council wrote to Mrs C on 18 October 2019 to apologise for not meeting the extended deadline to complete its Stage 1 report. The Council provided a copy of its detailed Stage 1 report to Mrs C on 21 October which upheld several elements of her complaint.
51. Mrs C sought to escalate her complaint to Stage 2 of the Council’s procedure on 22 November. Mrs C submitted further concerns following receipt of a copy of the video evidence referred to in the Council’s Stage 1 response on 6 December.
52. There was contact with the Council to arrange site visits and about changes of the investigating officer during December to February 2020. The Council’s Stage 2 report is dated 20 February and was provided to Mrs C on 3 March 2020. I consider the delay to be excessive and constitutes fault.
53. Mrs C suggested that this delay meant she was not able to bring her complaint to the Ombudsman before development on the site started which reduced the scope for revocation of the planning permission. I should explain that generally, when a complaint comes to us the planning permission will have been issued, is valid and can be implemented, so we cannot seek reconsideration of the application. The applicant is an innocent third party in relation to any fault by the Council, and the potentially expensive and uncertain procedures of modification or revocation may well be inappropriate.
54. I have taken into account the fact that the Council provided a detailed response at the first stage of its complaint procedure which had accepted some fault in its consideration of the application. I have seen no evidence Mrs C spent an excessive amount of time chasing the outcome of the Council’s second stage. In the circumstances, I do not consider a remedy for the delay in the complaint process is required.

My assessment

55. Based on the evidence provided, I am satisfied there was incorrect and misleading information contained in the case officer’s report to the Planning Committee which the subsequent additional observations report did not adequately address. This constitutes fault in the Council’s decision making process.
56. I have gone on to consider if this fault caused an injustice to Mrs C and her neighbours. I have considered all the information available to the Committee and the arguments highlighted by both the complainants and the Council. It is my view that it is more likely than not the outcome of the planning application would have been the same without the identified fault. In this circumstance I cannot conclude Mrs C and her neighbours have been caused an injustice in consequence of the Council’s fault.

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Final decision

57. I have completed my investigation. There was fault in the Council’s decision-making process. However, there was no injustice to Mrs C or her neighbours because the Ombudsman cannot say that, but for the fault, the outcome would have been different.

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Investigator's decision on behalf of the Ombudsman