Summary: Ms X complained the Council granted planning permission to complete renovation works to increase the number of HMO tenants at the property neighbouring hers from six to nine. Ms X complained the Council did not adequately consider the concerns she raised about the impact on her privacy and amenity and on the residential character of the road. The Ombudsman does not find the fault by the Council caused an injustice to Ms X.

The complaint

1. Ms X complained the Council granted planning permission to increase the number of Houses of Multiple Occupation (HMO) tenants at the property neighbouring hers from six to nine. Ms X says the Council has not adhered to its Area of Restraint Policy (1994).
2. Ms X complained the Council did not adequately consider the impact on her privacy and amenity or the impact this would have on the residential character of the road.
3. Ms X says this has caused her an injustice through the potential of the three extra tenants not being as trouble free as the current six tenants. Ms X also has concerns other nearby HMOs will receive similar consent on the back of this planning application.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
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)

Back to top

How I considered this complaint

7. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. I have also considered both planning applications, planning officer’s reports and decision notices relevant to Ms X’s complaint.
9. Ms X provided comments on my draft decision. I considered Ms X’s comments before making my final decision.

Back to top

What I found

Planning Law

10. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests.
11. When a council makes a decision on a planning application it can only take certain issues into account. These are “material planning considerations.” Examples of material planning considerations include:
1. Local and national planning policies.
2. Layout, density, design or appearance of the proposal.
3. Overlooking or loss of privacy.
4. Impact on amenity.
12. Councils cannot consider matters which are not material planning considerations. Examples of these include private disputes between neighbours such as works completed on a party wall.

Council Policies

13. The National Planning Policy Framework (NPPF) (February 2019) outlines the need for different styles of homes to meet the needs of all people. The policy says these needs must be reflect in a Council’s planning policies.

Area of Restraint Policy (1994)

14. This policy applies limits on the number of institutional and non-family dwelling houses and hostels, including HMOs, within this local area. The purpose was to spread these properties across a wider area.
15. For Ms X’s area, the policy would not unduly restrict changes of existing non-family dwelling houses such as HMOs where there would be an upgrading of the accommodation.

Council Development Plans

16. The Council’s development plan outlines that proposed housing must be sustainable and provide a wide range of different housing options. This is to ensure balanced communities of different ages and income (TP27 and TP30).
17. While the Council also promotes building a mix of new housing to accommodate the city’s growing population (TP29).
18. The Council’s proposed Development Management Plan (DM11) suggests a 10% threshold on HMOs within a 100-metre radius. Should the concentration of HMOs within a 100-metre radius exceed 10% the Council would consider the community unbalanced.
19. The Council’s Unitary Development Plan (2005) policies specifically state the Council should consider the cumulative effect of HMOs on the residential character and appearance of an area.

What Happened

20. Ms X’s neighbour made a planning application, Application 1, in February 2020. This planning application was to convert the property from a 6-Bed House HMO to a 8-Bed HMO. Ms X objected to the planning application.
21. The Council officer issued their report recommending acceptance of the planning application on 1 April 2020. The Council officer’s report recognised Ms X’s objections but said:
• The property is already a 6-Bed HMO with a license held since December 2017. This property had been a HMO since the 1980s.
• The surrounding area is mostly residential in nature. This area had a mix of family dwellings, flats and other HMOs. The HMOs amounted to less than 10% of total properties.
• Approval of renovation to an 8-Bed HMO would not result in a loss of family housing. Addition of two occupants would not make the number of HMOs in the area unacceptable.
• Two extra occupants would also not present “a noticeable and harmful impact” on the character of the area.
• The proposal would not result in the loss of neighbour’s privacy due to window placements.
• The Council’s Regulatory Services Officers did not raise objections to noise or disturbance on neighbouring properties.
22. The Council granted planning Application 1.
23. Ms X’s neighbours put in a new planning application, Application 2, proposing an increase to a 9-Bed HMO.
24. Ms X objected to Application 2 on 24 June 2020. Ms X said:
• The application did not follow the Area of Restraint policy.
• The standards of living were inadequate for residents.
• Overcrowding of the property would cause a noise nuisance to neighbouring properties.
• The window facings will impact on the privacy and amenity of her property.
• Construction on the party wall could cause damage or structural problems.
• The property should be a family home.
• Granting this application will create a precedent for other HMOs.
25. Ms X complained to the Council on 8 July 2020 about Application 1. Ms X complained:
1. The Council failed to consider the Area of Restraint Policy.
2. The planning application approved by the Council will damage her privacy and amenity.
3. The Council has not fully considered the impact on residential character of the road or area.
4. There was no sign the Council consulted with officers concerned with HMO licenses about the planning application and this could create a precedent for other HMOs.
5. The planning officer dismiss objections to the planning application and has not considered all relevant factors.
26. The Council responded to Ms X’s complaint on 29 July 2020. The Council said the property has historically a HMO. The planning officer considered the Area of Restraint policy in light of this historic use when granting the planning application. The Council also said HMO licensing does not form a part of planning application matters. The Council said the planning file does consider all relevant objections and considerations. This included impact on amenity, privacy and on the local area. The Council said the report could have been more direct in addressing these.
27. The Council officer produced their report on Application 2 on 12 August 2020 also recommending acceptance of this planning application. The Council officer’s report detailed the objections raised and acknowledged the previous planning application within its thinking. The report said:
• The property has historic use as a HMO. The increase in the number of bedrooms for this HMO would help to meet increased local need for housing as outlined with the Council’s policies.
• The number of HMOs within 100-metres is below the 10% threshold so this application would not create too many HMOs. It is unlikely the proposal will have any negative impact on the character of the area.
• The room size and floor space for residents is in line with Council policies.
• It considered the impact of potential disturbance to neighbouring properties.
• It could not guarantee tenants of the HMO would be trouble free but also could not guarantee they would be. To decline a planning application based on this would be discrimination against potential occupants of HMOs.
• Any impact on the party wall was part of building regulations or a civil matter. This was not a concern for planning approval.
28. The Council granted planning Application 2.
29. Ms X asked the Council to consider her complaint at the next stage on 18 August 2020. Ms X also complained about planning Application 2.
30. The Council provided its final response to Ms X’s complaint. The Council advised it had reviewed both planning files and said the Council officer had considered the applications correctly. The Council directed Ms X to the Local Government Ombudsman. Ms X complained to the Ombudsman on 6 October 2020.

Analysis

31. Ms X complained the Council has wrongly granted planning applications for both Application 1 and Application 2. Ms X’s complaint consists of six main points. Ms X raised Five of these points with the Council in her complaint and the Council officers consider the sixth within both planning applications.

Area of Restraint Policy

32. Ms X complained the Council officer did not consider the Area of Restraint policy correctly when recommending the Council granted the planning applications.
33. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define planning law.
34. The Council created its Area of Restraint Policy to restrict the number of HMOs within particular areas. However, for Ms X’s area, the policy specifically states the Council should not use this policy to unduly restrict changes of use for pre-existing HMOs.
35. Both of the Council officer’s reports for Application 1 and Application 2 referenced the Area of Restraint Policy within their decision making.
36. Both reports considered the property had historic use as a HMO. Planning applications to increase the number of tenants would not alter use of the property or remove a family dwelling.
37. The Area of Restraint policy seeks to prevent a build-up of HMOs within a small area. While this policy does not provide specific limits on the number of HMOs the Council’s Development Management Plan proposal does seek to quantify this. This proposal suggests a 10% threshold of HMOs within a 100-metre radius of the planning application. Within both reports the number of HMO properties fell below this 10% threshold.
38. The Council officers have shown consideration of this policy within both planning application reports. While Ms X may not agree with the Council officer’s decisions, there is no fault from the Council.

Impact on Ms X’s Privacy and Amenity

39. Ms X complained the planning applications directly impact her privacy and amenity. Ms X says this occurs through the window placements and noise created by overcrowding of the HMO.
40. The Council officer directly considers residential amenity for neighbours within the report for Application 1. The Council officer said none of the proposed windows present a loss to neighbour’s privacy.
41. The original layout of the property has six windows facing towards Ms X’s property (whether through a direct or indirect view). Application 1 kept the same number of window placements from habitable rooms. There is no fault in the Council officer deciding no loss to privacy.
42. The Council officer for Application 1 also consulted with the Council’s Regulatory Services Officers about a potential for increased noise and disturbance to occupying properties. These officers determined there would no detrimental impact of noise and disturbance on neighbouring properties.
43. Application 1 reduces the number of habitable rooms adjoining Ms X’s property from six rooms to five rooms. While the proposal includes en-suites these are not habitable rooms. The planning application does not seek to introduce any rooms which would specifically house noise producing appliances or equipment, such as dining or recreation spaces. There is no fault in the Council officer deciding no material impact of noise and disturbance, especially after getting input from the relevant department.
44. The Council officer’s report for Application 2 does not make direct reference to neighbouring properties privacy and amenity. This is fault. I have addressed this omission later in this decision.
45. However, the Council has referenced Application 1 within the report as a continuation of similar considerations.
46. Application 2 includes only five windows from habitable rooms which facing, directly or indirectly, towards Ms X’s property. This means Application 2 has less impact on Ms X’s privacy compared to the original layout of the property. This presents no injustice to Ms X.
47. Application 2 has six habitable rooms adjoining Ms X’s property. This keeps the same number of habitable rooms which adjoin Ms X’s property. Again, there is no proposal for rooms specifically designed to accommodate noise producing appliances or equipment within the planning application. This presents no injustice to Ms X.
48. Failure to address the impact of the privacy and amenity in Application 2 has unlikely changed the decision to approve the planning application. While the Council was at fault for failing to reference impact on privacy and amenity in Application 2 this presented no injustice to Ms X.

Impact on the Character of the Road or Area

49. Ms X says the Council has not considered the impact of the planning application on the residential character of the road or area.
50. Both Council officer’s reports for Application 1 and Application 2 considered the area around the property. Both planning applications considered the number of HMOs within the local area and considered the potential impact of the increase in tenancy for this HMO on the area.
51. The Council officers said accepting the planning applications would not cause a loss of a residential dwelling as the property was already a HMO. Both Council officer’s report decided acceptance of the planning proposals would not have a negative cumulative impact on the area.
52. As noted above, these planning proposals kept the number of HMOs within a 100-metre radius below 10% of the total properties.
53. The Council officers considered the impact on the local area within both applications. I do not find fault with the Council.

Setting a Precedent

54. Ms X complained approval of these planning application would set a precedent for approval of other HMOs to expand.
55. The Council already has policies in place within its Development Plans which outline how that housing developments should meet a wide range of different housing to present dominance of certain types of housing. The Council must balance this with the need for new housing to accommodate a growing population.
56. The Council’s proposals for its Development Management Plan also introduces a 10% threshold of HMOs within a 100-metre radius of a planning application.
57. The Council officer’s reports for both Application 1 and Application 2 show clear consideration of the Council’s. Since the planning application adheres to the Council’s policies the Council officers recommended approval of the planning application. Approval of the planning applications does not set a precedent any different to the policies the Council has in place.
58. The Council is not at fault for considering the application in line with is policies.

Failure to Consider all Relevant Factors in Planning Applications

59. Ms X complained the Council officer’s report failed to consider all relevant factors before recommending approval of the planning application.
60. As noted above, the Council officer’s report for Application 2 did not reference the impact on neighbouring privacy and amenity. This is fault.
61. The Council said it considered the impact on privacy and amenity within Application 1 applied the same thinking to Application 2. While I do not disagree with the Council, failure to address relevant planning matters within a planning application report is fault.
62. The Council has accepted it should have included a statement directly referencing Application 1 for the privacy and amenity matters with the report for Application 2. I agree with the Council.
63. This fault has not presented an injustice to Ms X, as it would unlikely have resulted in rejection of the planning application.

Cannot Guarantee Extra HMO Tenants will be Trouble-Free

64. Ms X complained the Council cannot guarantee the extra HMO tenants would be as trouble free as six tenants.
65. The Council officer’s reports for Application 1 and Application 2 both consider the impact of higher occupation of the property. In both instances the Council officers decided they could not guarantee the extra tenants would be trouble-free. The Council officers said this was not a relevant factor in deciding a planning application. Rejection of a planning application based on the potential that HMO tenants would cause trouble is discrimination against potential occupants.
66. A Council cannot guarantee that tenants of any property will be trouble-free. The Council’s role as part of a planning application is not to speculate on who may live in a property.
67. There is no guarantee the nine residents of this proposed HMO would cause more trouble than a different six residents at a nearby HMO. Rejecting a planning application based on such matters would amount to discrimination and the Council is correct to reject such considerations.
68. I do not find fault with the Council for its decision.

Back to top

Final decision

69. I have completed my investigation as there is no evidence the fault by the Council has led to a significant injustice to Ms X.

Back to top

Investigator's decision on behalf of the Ombudsman