Guildford Borough Council (20 004 025)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 22 Mar 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council’s decision on her planning application was inconsistent and that she should not have been put to the costs of a planning appeal. There was fault in the way the Council reached a view on another planning application, However, this did not cause injustice to Mrs X. There was no fault in the way the Council decided her planning application.

The complaint

  1. Mrs X complains the Council’s decision to refuse their planning application in 2018 unreasonably failed to take account of other planning decisions the Council had made. She complains the failure to consider the impact of other development it had already approved made the reasons for the refusal of their application null and void and caused them to appeal unnecessarily.
  2. Mrs X only became aware of the Council’s other decisions a year after they had successfully appealed the refusal of their own permission, so they did not claim costs at the time. As they now understand their appeal was unnecessary, they consider the Council should meet the appeal costs they incurred.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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

  1. I considered the complaint Mrs X made and the information she provided to support it. I asked the Council for information and considered its response to the complaint.
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

  1. Mrs X lives in a Grade II listed building in the Council’s area. In 2018 she applied to demolish some of the existing walls to the rear and to build a single storey extension and a rear decked area.
  2. The case officer’s report for her planning application described Mrs X’s property and its relevance to the conservation area. It described the proposed alterations and explained various concerns the Council’s conservation officer had about the proposals. The officer considered a large flat roofed extension Mrs X proposed would appear overly dominant to the existing building. The loss of a window and panelling internally would be detrimental to the historic plan of the house. The officer also commented the extension and decked area would detract from the view of the building and a feature gable from various key vantage points in the conservation area. The officer referenced several key buildings and locations. The officer also questioned how elements of the development would relate to a neighbour’s property. They stated the plans lacked detail in this regard.
  3. Mrs X’s application was refused in early September 2018. This was on the basis that its scale, height, design, detailing and visual prominence were not in accordance with planning policy.
  4. Mrs X appealed to the Planning Inspectorate about the refusal. In June 2019 a Planning Inspector upheld her appeal and granted planning permission. He considered the Council’s concerns and Mrs X’s plans and took account of the impact on the conservation area. The Inspector decided there was only limited harm and the improvements to the property outweighed this.
  5. I understand that Mrs X did not apply for costs to be considered by the Planning Inspectorate.

Mrs X’s complaint

  1. In June 2020 Mrs X complained to the Council about inconsistency in the planning process. She explained she had recently become aware of a development between her property and the key vantage points referenced by officers when refusing her extension. She complained that the other applicant had been granted permission to develop a building behind them before they were refused permission. She stated the building behind them entirely obscured her property and others from the same vantage points officers referred to when refusing their permission. She complained that officers considering her application should have been aware of the application by the other applicant. In clarifying her complaint Mrs X stated that if the planning officer knew that the façade of the other building was being increased in height, they would not have been able to use the ‘impact to the view of their property from the conservation area’ as a reason to reject their application. She argued they should not have been forced to go to appeal.
  2. In further correspondence with the Council Mrs X made a claim for £2000; the costs she incurred in going to appeal. In this correspondence she stated the original 2017 plans by the other applicant showed there was no increase in height to the building behind their property. Mr and Mrs X were satisfied with the proposals at the time. But, when construction started on the building behind them, part of the building was increased in height. A planning officer drew their attention to a change in the plans for the other building which the Council approved in May 2019. Given this increase in height was permitted, and it affected the view of their property from the conservation area, Mrs X argued the grounds for refusing their extension had been flawed and the Council had been inconsistent. As a result she asked it to repay their appeal costs.
  3. The Council did not accept it was at fault. The Council stated officers did try to be as consistent as possible. The Council stated that both their application and the other building were considered by the conservation officer. However, all planning applications are considered on their individual merits. The Council noted Mrs X could have applied for costs as part of the appeal process, but did not do so. The Council took legal advice and established there was no ability to make a costs claim now and it would not be refunding Mrs X’s appeal costs.

Was there fault by the Council

  1. We are not investigating whether it was appropriate that the Council refused Mrs X’s planning application; the Planning Inspectorate have already made this decision.
  2. However, I have looked at the decision made on Mrs X’s planning application and the plans that were considered by the Council for the building behind them. This is to consider the complaint Mrs X made subsequently regarding inconsistency and her appeal costs.
  3. The original plans for the building behind Mrs X’s home did not include an increase in height. So, when the Council considered and refused Mrs X’s planning application in September 2018, the 2017 decision on the building behind them was not inconsistent with the decision on their planning application.
  4. The Council considered the revised plans for the building behind Mrs X’s property in October 2018. The Council approved these plans in May 2019, once a legal agreement had been prepared. The changes approved were predominantly to the internal layout (to increase the number of flats). However, the elevation plans also show that the height of part of the building would be increased. The case officer’s report does not make reference to the change in height. It erroneously states “The height and mass of the building would remain unchanged from the existing which would ensure that the context and character of the adjacent buildings and immediate surrounds are not adversely affected”.
  5. The failure to consider the increase in the other building’s height when approving the application in 2019 was fault by the Council. It appears that the height increase was not identified when considering the matter. Allowing the increase in height was arguably inconsistent with the Council’s decision on Mrs X’s application. It is not clear if the Council would have approved or refused the change in height, had it been identified. However, the failure to properly consider the increase in height of the building behind her home in 2019 does not mean that the Council’s view on Mrs X’s application was incorrect. The Council’s error came after it had already made its decision on her planning application.
  6. I understand Mrs X disagreed with the Council’s reasons for refusing her planning application. Mrs X appealed successfully, gaining planning approval. However, a successful appeal does not mean that there was fault in the way the Council reached its decision. Planning decisions are judgements which are, to an extent, subjective. The appeal system exists to allow applicants to challenge decisions they disagree with, it enables the Planning Inspectorate to come to a final view. While I understand Mrs X’s concerns upon seeing what seems an inconsistent approach in allowing the increase in height to the other building in 2019, the error by the Council in 2019 has not impacted the view the Council took on the Mrs X’s application in 2018.
  7. We found no fault that led to an injustice to Mrs X. I have therefore completed my investigation and closed my file.

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Final decision

  1. There was fault by the Council but this did not lead to an injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman

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