Summary: Mrs X complained about how the Council decided a planning application next to her home. We found fault with the Council’s record keeping and that it failed to tell Mrs X about changes to the plans. The Council had apologised to Mrs X and it agreed to review the way it keeps records about site visits in planning applications. We were satisfied with the actions the Council agreed to, so we completed our investigation.

The complaint

1. Mrs X complained about how the Council decided to approve planning permission for a development of houses next to her home. This included, failing to adequately consider the effects of development on her residential amenity, not giving reasons for its decision and taking too long to decide the application. Mrs X said this caused a loss of privacy in her garden, distress, worry and reduced her property value.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
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.

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How I considered this complaint

6. I considered:
• the information Mrs X provided in her complaint and discussed her complaint with her;
• the Council’s comments on the complaint and the supporting information it provided;
• the planning documents, plans and reports from the Council’s website; and
• the relevant law, guidance and policy.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments I received before making a final decision.

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What I found

Law and guidance

8. Planning permission is required for the development of land (including its material change of use) and may be granted subject to conditions relating to the development and use of land.

Timescales for planning applications

9. Councils should decide most planning applications within eight weeks, although the time limit is 13 weeks for major applications. If a council has not decided the application by the end of this period, and it has not agreed an extension in writing, the applicant can appeal to the Planning Inspectorate (on behalf of the Secretary of State for Communities and Local Government). Third parties do not have the right to appeal delays in planning applications to the Planning Inspectorate.

Decision making and material considerations

10. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
11. 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.
12. It is for the decision maker to decide the weight to give to any material consideration when deciding a planning application.

Publicity for planning applications

13. Councils must give publicity to planning applications.  The publicity required depends on the nature of the development although in all cases councils must publish applications on their websites. In this case, the requirement was also for a site notice or neighbour notification.
14. The Council’s policy, its Statement of Community Engagement, says it will reconsult with affected neighbours where there are significant changes to plans or proposals.

The Council’s complaints policy

15. The Council has a two stage complaints process with the following timescales.
• Stage 1 – the Council investigates the complaint and responds within 15 working days, or 20 days for complex complaints.
• Stage 2 – a review by a senior Council officer with a response within 25 working days.

Background

16. Mrs X lives next to a development of properties the Council granted planning permission for in 2019 and again in 2020. The second application increased the number of properties planned for the site.
17. Mrs X objected to both planning applications for the following reasons.
• It would cause a loss of privacy and affect her enjoyment of her back garden.
• The developer wanted to build too many properties for the size of the site.
• The road outside the property was already busy and the development would cause safety issues.
• Mrs X believed there was a risk of subsidence because of cracks in an existing property on the site.
18. An officer of the Council approved the first application, while the Council’s planning committee approved the second.

Mrs X’s complaint to the Council

19. Following the approval of the second application, Mrs X complained to the Council about its handling and approval of the application. She first complained to the Council on 28 May 2020. She asked the Council to investigate her complaint under Stage 2 on 4 August 2020.
20. In summary, Mrs X believed the Council:
1. took too long to consider both planning applications. Mrs X said the Council took six months, substantially longer than the eight weeks applications should take, and there was no need for protracted negotiations with the developers;
2. failed to visit the site before deciding the application. Mrs X said neither Council officers nor the planning committee visited the site. She said if they had, they would not have approved the application;
3. failed to properly consider the effects of the development on her residential amenity. Mrs X said the development would affect her ability to enjoy her back garden and affect her privacy because the properties face her garden and because of the extra cars using the driveway;
4. failed to properly consider advice from the Council’s environmental protection team and attach the conditions it recommended to the planning permission;
5. failed to properly consider the risk of subsidence based on the concerns Mrs X raised in her objections;
6. failed to question the advice of the Highways Authority when she raised concerns the conditions it suggested would not work;
7. failed to consider the impact of the development on protected species, such as bats;
8. treated another application differently. Mrs X said the Council’s planning committee refused a planning application which would have had a lesser impact on neighbours than the application which affects her. She said this showed the planning committee decision was unfair and inconsistent;
9. failed to properly consider her objections to the planning committee. Mrs X says the planning committee did not discuss or debate her objections before deciding to approve the planning application. She said this meant the committee ignored her objections. She also complained about what she considered an inappropriate familiarity and informality during the committee meeting; and
10. took too long to respond to her complaints. Mrs X said the Council took 47 days to respond to her Stage 1 complaint and the Council delayed in responding to her Stage 2 complaint.
21. In her complaint to the Ombudsman, Mrs X raised some extra points:
1. the new layout of the site means that Mrs X will be unlikely to get planning permission to extend her home in the future;
2. the Council failed to include conditions recommended by the Council’s drainage team in the officer’s report to the planning committee; and
3. the Council failed to tell her the developer had filed changed plans a few weeks before the planning committee. Mrs X said these new plans were significantly different as the proposed properties now faced her home.

The Council’s responses to Mrs X’s complaint

22. The Council responded to Mrs X’s Stage 1 complaint on 14 July 2020 and her Stage 2 complaint on 22 September 2020.
23. The Council’s responses to the issues Mrs X raised were:
1. the delay considering the application was due to vacant posts in the Council’s planning department, pressures of COVID-19 and protracted negotiations with the developers;
2. Council officers did carry out site visits as part of considering both applications. Members of the planning committee were free to propose a site visit, but no member did so;
3. the officer reports for both applications considered the impact on residential amenity. While the report did not directly mention neighbouring properties in the report, in the Council’s view, the effect on neighbouring amenity would be acceptable. It said Mrs X raised her concerns about amenity with the planning committee, which still decided to approve the application;
4. the planning officer decided the conditions proposed by its environmental protection team were disproportionate and set out this reasoning in their report to the planning committee;
5. the planning officer did not consider subsidence to be a material planning consideration. There was no evidence the site was affected by mine workings and there was no compelling evidence of other subsidence risk. The Council stated that it would address land stability through building regulation rules;
6. the Council recognized the concerns about highways safety raised by Mrs X and the Town Council. However, it said it was entitled to prefer the advice of its professional, qualified highways officers. It said it received no other suitably qualified advice to contradict that given by its highways officers;
7. planning officers followed standing advice from Natural England to assess the likelihood of protected species being present at the site visits. The officer decided the existing property had limited potential for protected species, including bats;
8. the application Mrs X said the planning committee refused was a different application. Each planning application is considered individually and there were material differences between the applications. The planning committee was entitled to exercise its own judgement and apply its own weighting to the issues;
9. the fact no discussions took place following Mrs X’s representations to the planning committee does not mean that members ignored those concerns; and
10. the Council apologised for the delay in its Stage 1 response and explained this was due to the complexity of Mrs X’s complaints and the pressures of the COVID-19 pandemic.

My findings

24. When considering complaints, the Ombudsman must consider whether there has been any fault by the Council and whether this fault caused an injustice to the person complaining.
25. 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.

a) Delays in deciding the planning applications

26. Both planning applications took around six months each to consider. This is longer than the eight weeks within which councils should normally decide planning applications.
27. However, Councils can agree an extension with applicants. There is no evidence the applicant objected to the time taken by the Council to decide the applications. The fact the applicant filed new plans a few weeks before the planning committee meeting suggests the Council was continuing to negotiate with the applicant. Therefore, I am satisfied with the Council’s explanation for the delays and the delay did not constitute fault.
28. In any case, I do not consider any delay in deciding the planning applications caused Mrs X a significant injustice since no development could take place before the Council decided the application.

b) Site visits

29. Councils do not have to carry out site visits for planning applications. Despite this, the Council says it did carry out site visits for both planning applications, including the most recent. However, the Council could not provide any evidence it conducted a site visit for the latest planning application.
30. Where there is a conflict of evidence, we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
31. Based on the available evidence, I consider it more likely than not that the Council did conduct a site visit for the most recent application. The Council has explained it conducted a site visit at the time it placed the site notice mentioned in the officer’s report and there is no direct evidence that contradicts the Council’s statement.
32. However, in the Ombudsman’s focus report, Not in my back yard: Local people and the planning process, we say we would expect officers to make notes and take photographs to record what they found during a site visit. The Council has not provided evidence to show the officers made or kept these records. This poor record keeping was fault.
33. However, I do not consider this to have caused Mrs X an injustice. Mrs X made the planning committee aware of her concerns about the effects on her amenity, so the committee was aware of these before it decided the application.
34. The recording of the planning committee meeting shows that while one of the committee members said they might have preferred a visit, no members raised a motion proposing a site visit. All members of the committee were aware of Mrs X’s concerns and had the opportunity to propose a visit but did not do this. Therefore, I am satisfied there was no fault in the committee not making a site visit.

c) Consideration of the effect on Mrs X’s residential amenity

35. Although Mrs X raised the issue of her amenity in her objections, the officer report for the planning committee did not directly refer to the issues of noise, fumes and overlooking she referred to. However, the report stated there would be no “unacceptable overbearing impact upon existing neighbouring amenity”.
36. It is a matter of professional judgement which issues are material considerations for an individual planning application and decisions need only refer to the key issues in dispute. The officer report could have been better if it had directly mentioned the issues Mrs X raised around her amenity. However, it directed the committee to her objections and concluded the overall impact on residential amenity would not be unacceptable. Therefore, I am satisfied that not directly mentioning the specific issues Mrs X had raised did not constitute fault.
37. In any case, Mrs X raised her concerns personally at the planning committee. The committee therefore had the opportunity to consider the issues she raised before it decided the application.

d) Conditions recommended by environmental protection

38. Although the Council’s environmental protection team suggested several conditions, it is up to the planning decision maker to decide which conditions it should attach to an application. The Council explained its planning officer considered the proposed conditions would be liable to successful challenge by the applicant, so it decided not to attach the recommended conditions. I am satisfied with the Council’s explanation for not including the recommended conditions.

e) Subsidence

39. It is a matter of professional judgement which issues are material considerations for an individual planning application. The Council has explained its reasons for not considering subsidence to be a material consideration in this case. There is no evidence of fault in how the Council made this decision.

f) Highways advice

40. Both planning reports mention the objections raised about highway safety. The Council recognised these concerns but preferred the professional advice from its highways officers. The Council is entitled to weigh the evidence and has given reasons for preferring formal advice it received. I am satisfied there was no fault in how the Council decided to prefer the advice of its own officers.

g) Protected species

41. The Council says its officers considered the possible presence of protected species during the site visits in line with advice from Natural England, decided the risk was limited and so this was not a material planning consideration. This is a matter of professional judgement for the decision makers.
42. The Council has not provided evidence of these considerations. As with records of the officers’ site visits, this poor record keeping was fault.
43. However, I do not consider this to have caused an injustice, since there is no evidence any protected species were affected.

h) Treatment of applications by the planning committee

44. Planning decision makers, including planning committees, are entitled to decide the weight they give to material considerations in individual cases.
45. The planning decision Mrs X sought to draw a comparison with was materially different and the committee was entitled to reach its own conclusions about the application. Just because the committee reached a different decision on another application is not evidence of fault of how it considered the application Mrs X complains about. I am satisfied there was no fault in the planning committee deciding the two applications differently.

i) Planning committee’s consideration of Mrs X’s objections

46. The absence of discussions during a planning committee meeting does not mean the members ignored any individual matters raised.
47. All members of the planning committee heard Mrs X’s submissions and had the choice of asking questions or raising issues before the committee voted on the application. The evidence shows that no member of the committee chose to do so.
48. Based on this, I am satisfied there was no fault in how the planning committee considered Mrs X’s objections.

j) Delays in complaints handling

49. The Council says it will respond to Stage 1 complaints within 15 working days (or 20 working days for complex complaints) and 25 working days for Stage 2 complaints.
50. The Council said Mrs X’s complaint was complex. Given the number of issues Mrs X raised in her complaint to the Council, I am satisfied the 20-working day timescale should apply.
51. The Council took 33 working days to respond to Mrs X’s Stage 1 complaint. This was 13 days longer than it should have done. It also took 35 working days to respond to Mrs X’s Stage 2 complaint. This was 10 days longer than it should have done.
52. Mrs X’s made her complaint during the COVID-19 pandemic. The Ombudsman’s guidance on Good Administrative Practice during the response to Covid 19 says that while it may take longer to respond to complaints during the pandemic, Councils should keep complainants informed of any delays. I am not satisfied the Council did this.
53. I consider that, while the delays responding to Mrs X’s complaint were justified by the effects of the COVID-19 pandemic, the Council did not keep Mrs X informed about the delays. This was fault.
54. The Council apologised to Mrs X for the delays in responding to her complaints. Considering the length of the delays, I am satisfied this was a suitable remedy for the frustration caused to Mrs X.

k) Effect on future planning permission

55. The courts have decided effects on private land rights, such as future applications for planning permission or property value, are not material planning considerations. Therefore, the Council was not at fault for not considering these matters when deciding the planning application.

l) Late addition of the drainage conditions

56. Although the officer’s report for the committee did not include the conditions recommended by the Council’s drainage team, the Council added these at the planning committee before it decided the application. Therefore, I am satisfied this was not fault.
57. There was also no injustice, because the conditions were included in the final planning permission.

m) Notice of amended plans

58. The Council’s policy says it will reconsult with neighbours if there are material changes to plans or proposals. Based on the changes to the plan, I am satisfied the change to the layout a few weeks before the planning committee was a material change.
59. There is no evidence the Council told Mrs X about the changes to the plans as it should have done under its policy; this was fault.
60. However, the evidence shows Mrs X was aware of the new plans and raised her concerns about the effects of the developments on her at the planning committee meeting. So, I am satisfied this fault did not cause an injustice to Mrs X.

Agreed action

61. Within three months of my final decision the Council agreed to:
• review its procedure for recording and retaining records of site visits conducted in the course of planning applications;
• rectify any problems the review identifies; and
• provide evidence of its review and any changes it makes to the Ombudsman.

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Final decision

62. I partially uphold parts b and g of Mrs X’s complaint and have completed my investigation. There was fault with the Council’s record keeping and in its failure to tell Mrs X of a change to the planning application. I am satisfied the Council has remedied any injustice it caused to Mrs X and it has agreed to review how it keeps records of site visits to prevent potential injustice to others from similar problems in the future.

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Investigator's decision on behalf of the Ombudsman