The Ombudsman's final decision:
Summary: Mrs C complained the Council failed to properly consider a planning application for a house built close to her home and tell her a panel meeting had been cancelled. We found no fault with the Council’s decision making process but did find fault with it for failing to tell Mrs C about the cancellation of the meeting. The Council has agreed to apologise to Mrs C and pay her £100 for raised expectations and frustration and for putting her to the time and trouble of complaining.
- Mrs C complains the Council failed to properly consider a planning application for a new house near her home. Mrs C says the Council did not consider all relevant information and relied on inaccurate information contained in reports when making its decision to approve the development.
- Mrs C says that the Council gave misleading information and failed to tell her it had cancelled the scheduled planning panel meeting. Mrs C says she has been caused frustration due to the Council raising her expectations.
- Mrs C would like the Council to revoke the planning permission.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
How I considered this complaint
- I have spoken with Mrs C and read the information in support of her complaint.
- I have considered the documentation provided by the Council.
- I have given Mrs C and the Council the opportunity to consider the draft and have considered the comments before making a final decision.
What I found
Planning law, guidance and considerations
- All decisions on planning applications must accord with the development plan unless material considerations suggest otherwise.
- Material considerations concern the use and development of land in the public interest, and not private considerations. Therefore, councils may not consider the applicant’s personal conduct, covenants, or impact on the value of a neighboring property. Material considerations include issues such as impact on amenities, overlooking, loss of privacy, traffic generation and noise. A council must show it has considered material planning considerations.
- Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
- Planning officers make most decisions, but a council may refer others to a planning committee.
- Each council has its own procedures for referrals to a planning committee.
- General planning policies may pull in different directions (e.g. in promoting residential development while another protects residential amenities). Therefore, it is for the decision maker to decide the weight given to any material consideration in deciding a planning application.
Council policy - planning committees
- The Council’s website says some applications will be decided by the District Planning Panel or the Regulatory and Appeals Committee, which deals with major planning applications. Both comprise of locally elected member and meet approximately every four weeks.
- If an application requires a panel decision, the Council will write to the applicant and all those people who have submitted comments to advise them the date the application will be considered, seven days in advance of the meeting.
- A person can have their views heard on applications considered at a planning committee meeting. The website makes it clear that they do not have to speak, and written comments will be taken into consideration and summarised in the officer’s report.
Temporary changes to the law (in relation to Covid-19)
- In March 2020, the Government issued a planning update to councils recognising they may face issues due to the COVID-19 pandemic. In respect of planning decision making this said:
“We ask you to take an innovative approach, using all options available to you to
continue your service. We recognise that face-to-face events and meetings may
have to be cancelled but we encourage you to explore every opportunity to use
technology to ensure that discussions and consultations can go ahead. We also
encourage you to consider delegating committee decisions where appropriate.
The Government has confirmed that it will introduce legislation to allow council
committee meetings to be held virtually for a temporary period, which we expect
will allow planning committees to continue.”
- On 2 April 2020, the Government temporarily amended the law to allow councils to hold virtual planning committee meetings. The Government issued guidance to say councils should take advantage of these powers to hold virtual planning committees, rather than deferring committee dates. They should also consider using ‘urgency powers’ within their constitutions to give senior officers delegated authority to make decisions.
- In the absence of the regular member planning meetings, the Scheme of Delegation of Planning Decisions 2015 was considered. This enabled officers to take decisions under delegated powers in certain circumstances.
- In January 2020, the Council received an application for planning permission for a new dwelling to the rear of Mrs C’s home.
- Mrs C, as a local resident affected by the proposed development, objected to the application in February 2020.
- Mrs C said the development would:
- cast a shadow on her home, block out natural light and be overbearing;
- create the possibility of her having to have her heating on during the day;
- impact on her privacy due to windows overlooking her property and the possibility of them opening; and further windows which would look out onto every floor of her home, including her bedroom and bathroom;
- be too close to houses on neighbouring streets;
- be out of character with the existing properties in the area and disrupt the historic feel and harm the visual amenity of the area.
- cause a possible risk of instability to nearby houses due to historic coal mining in the area; and
- disrupt wildlife due to the development being built on a mature and established garden.
- In response to the application the Council said it conducted two site visits and a case officer considered the application and produced a report. I note the case officer’s report:
- outlined the relevant applicable law, national and local planning policies relevant to the application;
- summarised the objections received without listing each one;
- gave the case officer’s professional view on the impact on the amenity of neighbouring properties, such as overlooking, impact on light and distances between properties;
- outlined the design features aimed at reducing such impact to what the case officer considered acceptable in planning terms;
- recorded the highways authority’s view on the impact on highway safety, access and parking;
- outlined the reports from professional agencies including those relating to coal and drainage issues affecting the site; and
- recommended the approval of the application having set out the case officer’s professional opinion on the application and the objections received.
- In March 2020, Mrs C said she was notified that a panel meeting would take place later that month with details of when and where to attend and how to raise objections at the meeting.
- However, a few days later Mrs C says Governmental advice said that vulnerable groups should shield. She and other objectors considered the advice and decided due to the emergence of the pandemic they should shield.
- Mrs C says she telephoned the Council to request the panel meeting be postponed due to the pandemic and was told to email the Council with her request. Mrs C says she sent the request by email to four separate planning officers. Mrs C said she only received an automated response from one officer with no replies from the other three.
- Mrs C said she did receive a further email from a planning officer which told her that although he acknowledged her situation and desire to shield, planning officers did not have the authority to postpone or cancel meetings. He said that the meeting was scheduled to go ahead, but the request to postpone the meeting would be considered.
- The day before the panel meeting was scheduled to go ahead Mrs C was told by the planning officer that it had been postponed ‘until further notice’.
- In April 2020 Mrs C was surprised to receive notice the Council had approved the planning application.
- Mrs C made a formal complaint to the Council in July 2020. She said the Council had cancelled the planning committee meeting and says this contradicted the earlier message which said the application had been postponed. Mrs C felt therefore the Council had not benefitted from hearing her expanded objections at the hearing. Mrs C questioned why the Council had not conducted or organised a virtual meeting via the internet which she said it had done in other cases. She also complained there was:
- a lack of communication from the Council’s planning department; and
- inaccuracies in the reports submitted to the committee.
- In responding to Mrs C’s complaint, the Council:
- acknowledged it gave Mrs C conflicting messages but the information given to her by the planning officer was correct at the time of delivery, only later did the Council decide not to present it to the panel. The Council apologised for this conflict and the confusion caused;
- explained it had exercised legal powers under its Scheme of Delegation following the guidance issued by Government and used those powers to decide the application; and
- the Council accepted it should have better communicated with her however, it believed its case officer’s report accurately reflected the view of the material planning considerations having followed two site visits and studying the application plans.
- Mrs C was unhappy with the response and complained to the Ombudsman in September 2020. Since sending her objection letter, Mrs C said she had noticed further inaccuracies in reports the Council had considered. She felt that the delegated officer was only presented with four vague objections and listed further objections from others which she said had not been presented. These included:
- the case officer’s report inaccurately recorded Mrs C’s neighbour as being directly behind the proposed development when it should also have listed Mrs C’s house;
- describing the road as a cul-de-sac when Mrs C felt it was an unadopted road;
- possible damage to the condition of the road and parking concerns;
- drainage issues;
- questioning whether a bat survey had been conducted; and
- questioning the need for a property in the area, when a larger housing development was being constructed nearby.
- My role is to consider whether the Council considered the planning application without fault, not to judge the merits of the planning application. If I find fault, I must consider what the Council should do to put right any injustice caused.
- It is for the decision maker to decide what weight to give to the individual material planning considerations. I cannot impose my judgement over that of professional officers and it is clear they have considered the application against the relevant planning policies.
The case officer’s report
- The proposal was for a new dwelling to be built on a residential garden. I have viewed the case officer’s report which shows that the Council considered the application in line with its local plan and relevant law and policy. The Council says it conducted two site visits and there were nine objections uploaded to the planning portal. We accept that planning officer’s reports do not have to be perfect or cover every possible planning consideration. However, it should demonstrate that the core issues have been considered and the reasons for judgments on planning matters should be shown, albeit briefly stated.
- The report shows the Council considered all relevant planning considerations. These include the impact on the environment, loss of privacy, highway safety and wildlife. For this reason, I propose finding the Council considered the application without fault.
Impact on Wildlife and Endangered Species
- In response to my enquiries the Council said other objectors had raised the issue of the likely impact on bats and endangered species. On inspecting the site, officers believed the development would not adversely impact on the mature trees, or the bat box in a neighbouring property and so would not affect bats. Therefore, in the officer’s professional view a bat survey was not needed. The case officer found no evidence to support concerns of an impact on wildlife and took into consideration the site did not have formal protection as an area known to support endangered species. On this basis, the case officer decided to recommend approval.
- Although Mrs C did not have an opportunity to present her concerns about the impact on bats or wildlife in person, the Council has shown it properly considered the issue. This was what the Council was obliged to do. For this reason, I propose finding that the Council properly considered this issue when deciding the application. There was no fault here.
Inaccuracies and lack of detail in reports
- Following her initial complaint Mrs C wrote to the Council detailing the inaccuracies she had found in the case officer’s report.
- Mrs C says the highway authority wrongly refers to the site as being served by an unadopted cul-de-sac. Mrs C disputes this description because she says a private lane is shown linking the road to other roads. The Council states it can refer to the road as a cul-de-sac if it meets its definition of a road that is not connected to others by a publicly maintained highway.
- While I acknowledge this different interpretation of what constitutes a cul-de-sac, the Council has clearly given a view on the likely impact on parking and highway safety, and so I do not believe the description of the road in question had any bearing on the planning decision.
- The case officer’s report refers to Mrs C’s neighbour’s house as being directly behind the proposed development. The plans show it is in fact Mrs C’s house which is directly behind the development. This shows an inaccuracy in the address given in the report. However, it is clear the case officer has considered the impact in planning terms on the house directly behind the development and so has considered the impact on Mrs C’s home. Therefore, the error did not prevent the case officer from properly considering the impact on Mrs C’s amenity and privacy and so any potential inaccuracy did not affect the outcome.
- I recognise Mrs C listed several inaccuracies in the officer’s report causing her to lose confidence in the planning decision. However, I am satisfied all relevant planning considerations were properly considered and any errors did not lead the Council to make a decision different from the one it would have made but for those errors.
The decision to approve the development without it going to panel
- In the Government’s March update public planning meetings could not go ahead due to the COVID-19 pandemic. I am satisfied it was for the Council to decide how best to continue its service. I note that the Government encouraged delegated committee decisions where appropriate. From 2 April 2020 the Government enabled councils to hold virtual planning committee meetings but also asked councils to consider taking decisions using their emergency powers.
- The Council cancelled the planning panel meeting and considered the application in accordance with the Government’s emergency procedures. The Chair of the Regulatory Appeals Committee decided the application be determined by an authorised officer who considered the relevant issues and case officer’s report and decided to approve the application. Its reasoning was explained in the complaint response to Mrs C. I do not find fault with how the Council decided the application which was in line with the Government’s legislation.
- Mrs C questioned why other cases had virtual hearings and this one had not. I am satisfied it was for the Council to decide how best to continue its service. In this case the Council proceeded using its delegated powers as it was entitled to do.
- I note in the complaint correspondence that the Council told Mrs C that the case would be postponed until further notice. Mrs C expected that she would be notified of a new hearing where she would be able to raise her objections with the planning panel.
- I agree the Council gave Mrs C confusing messages regarding the postponement of the planning panel and acknowledged that it should have communicated the decision for the cancellation of this better. The “Good Administrative Practice during the response to COVID-19” say the basis on which decisions are made should be clear and transparent. In this case the Council did not notify her of its intention to proceed using its delegated powers or inform her in time that the panel meeting was cancelled. Mrs C was only made aware of this after the Council had made its decision. This was fault and caused Mrs C the injustice of raised expectations and frustration. It also put her to the time and trouble of complaining firstly to the Council and then to the Ombudsman. The Council has apologised, however, I find this is not sufficient to remedy the injustice Mrs C suffered as a result of the fault.
- To remedy the injustice, the Council has agreed by 9 July 2021 to:
- apologise to Mrs C for the frustration caused by its confusing messages regarding postponement and cancellation of the planning panel; and
- pay Mrs C £100 for the raised expectation and frustration created by the confusing messages and putting her to the time and trouble of complaining.
- I find no fault with the Council’s decision making but I do find fault in the way it communicated its decision not to go to panel. The Council has agreed to remedy the injustice to Mrs C, so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman