Summary: Ms X complained the Council failed to revoke her neighbours planning permission. The Council accepted its decision was flawed and permission should not have been granted. The Ombudsman found the Council was entitled to decide not to revoke planning permission, but it agreed to provide Ms X a remedy for the impact of its fault.

The complaint

1. Ms X complained the Council failed to revoke her neighbours planning permission, after admitting its decision to grant planning permission was flawed and wrong.
2. Ms X said she suffered inconvenience, time and trouble, and anxiety as a result of the Council’s actions. She also said the new development will negatively impact on her business.

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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. 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

5. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning Act 1990.
6. Ms X 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

7. Councils have powers under the Town and Country Planning Act 1990 to revoke or adjust planning permissions. They are rarely used, however. Planning permission grants development rights and it can be a complex and expensive process to withdraw permission.
8. The council may be liable to pay compensation to people with a legal interest in the land for any wasted costs, or other loss or damage directly linked to revocation or adjustment. The cost of compensation can be great.
9. In deciding whether to revoke or adjust, the council must consider its development plan and any other material considerations. The Supreme Court decided any compensation which may be payable is a material consideration. This is because the council must consider the cost to the public of its actions.
10. If the council has wrongly granted planning permission, it should consider all reasonable ways of addressing the injustice. The applicant is an innocent third party to any fault by the council, and the potentially expensive and uncertain procedures of revocation or adjustment may be inappropriate.

What happened

11. Ms X runs a garden centre and arboretum business which is open to the public. In October 2017, Ms X’s neighbour applied for permission to build two holiday units on land to the East of Ms X’s land. The Parish Council objected to the plans, as did five local residents.
12. Ms X objected to the plans on 20 October 2017. She said:
• Planning authorities said there would be no chance of her getting permission to erect any buildings on her land – for living or tourists, and this must apply to the application site as well.
• The applicant had removed the hedge along the Eastern boundary, taking away 90% of the shelter from her gardens.
• Developing holiday accommodation will create an unsightly visual aspect from the gardens, as well as potential noise disturbance.
• Boundary treatment is needed to screen the gardens from the two storey homes.
• The plans did not recognise wildlife habitats and biodiversity at the site.
• The plans did not mention the impact of the development on her business. The development will destroy the design concept of the gardens and will spoil visitor’s enjoyment.
13. The Council made its decision under delegated powers and granted full planning permission on 8 March 2018. The officer who assessed the application considered that a surviving planning permission for residential development already existed on the site following an earlier planning application from 1977 by the former owner. He judged that site access was carried out as part of that permission. The officer therefore decided the principle of the development was acceptable, in a location where otherwise it would not have been.
14. Ms X complained to the Council on 24 April 2018 about its handling of the application.
15. The Council noticed it had overlooked the objections from the parish council when it made its decision. It should have referred the application to the head of the planning committee, to decide if the committee should make the decision.
16. The Council apologised to Ms X for the procedural error. However, it said the officer’s report addressed the objections raised and the decision would remain unchanged.
17. Ms X complained to the Council again on 31 May 2018. She raised issues about the earlier surviving planning permission the officer referred to and said the decision should be null and void.
18. The Council decided to revoke Ms X’s neighbour’s planning permission on 5 September 2018. As part of this decision, it arranged an independent valuation of the applicant’s land with planning permission for two holiday units. The valuation was £170,000.
19. The Council sent its stage two response to Ms X on 10 September 2018. It accepted some procedural errors, which it apologised for, but it said they did not invalidate the planning permission. However, it said that after further investigation, its decision to approve was based on the flawed view there was historic surviving planning permission at the site. Therefore, the Council said its decision would likely have been a refusal. The Council confirmed it would be making an order to revoke the permission, but the applicant would be able to appeal.
20. The Council then served a revocation order, which the applicant challenged. The applicant said the Council’s decision notice, issued on 8 March 2018, was for two houses, not two holiday units as applied for.
21. The Council conceded that, because it did not attach a holiday occupancy condition to the planning permission, the permission in fact allows for two houses to be built. For this reason, the Council arranged an updated valuation of the land to assess what compensation would be due to the applicant. The updated valuation was significantly higher, at £260,000, than the initial valuation when the Council decided to revoke planning permission in 2018.
22. In September 2020, a visitor at Ms X’s gardens told her the neighbour’s planning permission was active again. Ms X contacted her local councillor, who confirmed this was correct and the Council would write to her confirming this.
23. Ms X brought her complaint to the Ombudsman on 24 September 2020. She wanted the Council to honour its revocation or offer her compensation for the impact of the development.
24. The Council wrote to Ms X on 25 September 2020. It said it had reviewed and updated its position. It said it must consider any compensation it would have to pay. The updated valuation of the land with planning permission is significant. For that reason, the Council decided not to revoke planning permission and to withdraw its revocation order. It said it was not in the public interest to incur large compensation.

Response to my enquiries

25. The Council told me, as part of the application, the applicant gave details of a 1977 application at the site for two bungalows. The applicant believed the permission was still surviving because the site access and other excavation works had been implemented. The access referred to is the one which now serves Ms X’s land. The planning officer accepted this, and it was material to his decision to grant planning permission.
26. As part of Ms X’s complaint, the Council reviewed the previous planning applications at the site. It found an application was made in 1983 to renew the 1977 permission. This proposal included site access. This was refused. For the 1977 permission to still be surviving it had to be implemented within 5 years.
27. The Council also found the access to Ms X’s land lies outside the boundary of the application site. In addition, Ms X gave the Council information to show the access was constructed in 1998 in connection with a separate planning application.
28. The Council therefore decided there was no surviving planning permission in place at the application site. The fundamental reason for it accepting development in that location is therefore flawed.
29. The Council accepts it should not have granted planning permission to Ms X’s neighbour. However, it is not in the public interest to revoke planning permission due to the high level of compensation the Council would have to pay the applicant.
30. When the Council granted planning permission, it omitted to include a condition limiting the use of the land to holiday units. This meant the applicant could use the units as permanent residences.
31. The Council told me the officer’s report considered the impact of the development on neighbouring properties, including Ms X, and decided there would not be a detrimental impact on their amenity. The Council therefore did not consider Ms X was due any remedy.

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Analysis

32. The Council accepted its decision to grant planning permission was flawed, and that it should not have granted permission. That was fault.
33. On the evidence seen, the Council properly considered Ms X’s complaints by fully investigating the history of the application site. It took the decision to revoke planning permission, but later changed its decision for economic reasons. The Council is entitled to consider the compensation it must pay, and the cost to the public, when deciding whether to revoke planning permission. The Council was therefore entitled to change its mind and reverse its decision.
34. The Council does not consider Ms X has suffered an injustice because the officer properly considered the impact on neighbouring amenity in his report.
35. I appreciate the Council’s point that the officer considered the objections and decided there was no harmful impact on residential amenity, including on Ms X. However, the Ombudsman must consider the complaint as a whole. The development would not have been there at all if the Council had decided the application correctly. The Council has accepted its decision was flawed and that the development breaches its policy about protecting the open countryside. Ms X therefore has legitimate expectations the open countryside around her business would be protected.
36. As a result of the Council’s fault, Ms X is now in a position where two properties will be visible from her land. This will detract from the unspoilt, natural visual aspect of her business. The Council should therefore provide screening to hide the new development.
37. In addition, Ms X has been put to considerable time and trouble in gathering the necessary evidence to bring her complaint to the Council. The complaint has been ongoing for two years and this has understandably caused Ms X distress.

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Agreed action

38. Within four weeks of my final decision, the Council agreed to pay Ms X £350 to recognise the time and trouble and distress its fault caused.
39. The Council also agreed to pay for screening of fast growing or established plants, shrubs, or trees along the boundary between Ms X’s land and the development.
40. Mrs X will provide the Council with three quotes for this work.
41. Within four weeks of receiving the quotes, the Council will pay Ms X a financial remedy equivalent to the lowest priced quote.

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Final decision

42. I have completed my investigation. The Council accepted its decision was flawed and planning permission should not have been granted. The Council was entitled to decide not to revoke planning permission, but it agreed to provide Ms X a remedy for the impact of its fault.

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Investigator's decision on behalf of the Ombudsman