Summary: Mr X complains about the way the Council granted planning permission for a House in Multiple Occupation (HMO). He says the Council failed to properly investigate his objections, failed to follow its own guidelines, and failed to engage with his questions. Mr X says this caused him to lose confidence in the planning process. He says another HMO in the area will increase the potential for antisocial behaviour and parking problems. The Ombudsman finds the Council at fault for delays updating its HMO database. However, the Ombudsman does not find the fault caused Mr X an injustice.

The complaint

1. The complainant, who I refer to as Mr X, complains about the way the Council granted planning permission for a House in Multiple Occupation (HMO). He says the Council failed to properly investigate his objections or follow its own guidelines. He says the Council made it difficult to object to the application because it failed to engage with his questions.
2. Mr X says this has caused him to lose confidence in the planning process. He says another HMO in the area will increase the potential for antisocial behaviour and parking problems.

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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. 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)
5. 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

6. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation and guidance, set out below.

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What I found

What should have happened

8. A House in Multiple Occupation (HMO) is a property rented out by at least three people who are not from one household but share facilities like the bathroom and kitchen. Councils are responsible for licensing HMOs and keeping this under review.
9. The Council has a Supplementary Planning Document (SPD) about the distribution of HMOs. The SPD says it is a material planning consideration when determining planning applications. It also says it provides guidance only. The SPD applies to all planning applications for a change of use from a dwelling to a small HMO.
10. The SPD says there is no formal definition of what constitutes a balanced community. The SPD recognises that a large proportion of HMOs in the community can lead to that community becoming imbalanced. It says the threshold is 20% of all properties being HMOs across a neighbourhood, and 10% at street level. The SPD sets out how the Council will assess those levels. The SPD says the Council will take this threshold into consideration when determining a planning application for a change of use to an HMO.
11. The Council has an HMO database. The SPD sets out that this will be updated a number of times per year.
12. The SPD says the Council will seek to make sure that the change of use will not be detrimental to the overall residential amenity of the area. The SPD says the Council will also consider size, parking spaces, cycle parking, the condition of the property, and whether the increase in number of residents will have an adverse impact on noise levels.

What happened

13. In 2019, the Council approved a planning application to change the use of a house (which I will refer to as Property A) near Mr X’s home from a dwelling to a House in Multiple Occupation (HMO). The Case Officer’s report referred to objections the Council received. One objection was that there were already three HMOs in the area which meant the street level of HMOs was already 10.7%, exceeding the threshold set out in the Supplementary Planning Document (SPD). The Case Officer also noted that an objector raised concerns about the potential for road congestion and other antisocial problems.
14. The Case Officer considered the parking issue and found a shortfall of one parking space. He noted there were no parking restrictions on the street. He found that a shortfall of one parking space would not warrant refusing the application. The Case Officer also said there was a school directly opposite.
15. The Case Officer assessed the street level of HMOs to be 7.4% and the neighbourhood level to be 5.28%, based on two HMOs nearby. He said the HMO levels were therefore below the thresholds set out in the SPD so he determined the application complied with the SPD.
16. The Case Officer addressed the objection about there being three HMOs in the area. The Case Officer said one of these properties (which I will refer to as Property B) was not on the Council’s HMO database. For this reason, the Case Officer said his calculation of 7.4% HMO density was correct.
17. The Case Officer assessed that there was nothing in the application which resulted in any significant harm to the neighbouring residential amenity. He therefore recommended approving the application.
18. In January 2020, Mr X complained. Mr X said the Council failed to take into account Property B, which he said was an HMO, when calculating the street density percentage. He said Property B should be on the Council’s HMO database. Mr X also said there was no longer a school where the Case Officer said.
19. The Council replied. It said Property B may be an unauthorised HMO. It explained the reasons it would not be reasonable to include unauthorised HMOs when calculating the density of HMOs. It also said it could not justify a possibly lengthy delay in determining the planning application to establish whether Property B was an HMO or not. The Council said it was investigating whether Property B was an unauthorised HMO.
20. The Council said the Case Officer’s reference to the school was inaccurate but said he did visit the site. The Council said this was not significant in the decision-making process.
21. The Council then considered Mr X’s complaint at stage two of its complaints process. The Council said to Mr X that it is not possible to respond to individual letters of representation because of the numbers of representations and questions it receives. It said it considers representations and summarises them in the Case Officer’s report.
22. Mr X then complained to the Ombudsman.

Analysis

Consideration of Mr X’s objections

23. Mr X complains that the Council failed to properly investigate his objections. He says he told the Council about the number of properties that were probably unauthorised Houses in Multiple Occupation (HMOs) when he objected to the planning application. He says the Council did not investigate whether the information he gave was true.
24. I do not find that the Council should have delayed determining Property A’s planning application while it investigated Mr X’s claim that there were other HMOs in the area (namely Property B). The Ombudsman would likely find the Council at fault for such a delay. A case officer must assess an application based on the all the evidence available at the time and not delay determining an application.
25. Further, I find that the Council did investigate whether Property B was an HMO. But it did not do this in order to determine the planning application. This is entirely appropriate. Therefore, I find that the Council did take appropriate action on Mr X’s claim.
26. For these reasons, I do not find the Council at fault.

Guidelines: maximum number of HMOs

27. Mr X complains that the Council failed to follow its own guidelines regarding the threshold for the maximum number of HMOs in an area.
28. When determining the application, the Case Officer found that there were two known HMOs nearby. This did not include Property B. Taking account of the two HMOs, the Case Officer calculated the HMO density at street level as 7.4%.
29. At the time of determining the application, Property B was a licensed HMO. However, the Council had not updated its HMO database to include this information. For this reason, the Case Officer did not know that Property B should have been included in the HMO density calculation. Had the Case Officer included Property B, the HMO density would have been 10.7%.
30. When responding to the Ombudsman’s enquiries, the Council found one other relevant property in the area. It says this meant the HMO density would have been 14.8%.
31. The Council acknowledges that the delay in updating the HMO database resulted in the Case Officer underestimating the HMO density at street level. However, the Council says it made the planning decision in the knowledge that there may have been additional HMOs nearby.
32. The Council says the HMO density threshold is not the only factor when determining whether a proposed HMO is acceptable or not. It says the Planning Inspector has upheld several appeals where the Council had refused planning applications because the density threshold was exceeded. It says if it had refused Property A’s application on this basis, there is a likelihood that the application could have been appealed and upheld by the Planning Inspector.
33. I agree with the Council that the density threshold is not the only factor to consider when determining planning applications. However, the Council’s Supplementary Planning Document (SPD) says the Council will update its HMO database a number of times per year. The Council acknowledges that there was a delay in updating the HMO database. For this reason, the Case Officer did not have all the up-to-date information he needed to accurately calculate the HMO density.
34. This delay in updating the HMO database is fault.
35. However, I do not consider this fault caused Mr X injustice. Even if the Case Officer had known about Property B and the other HMO, I cannot say that the outcome would have been different. The SPD says consideration of HMO density is a material planning consideration, but it also says it is only guidance.
36. The Council has identified the need to review its approach to updating and monitoring the HMO database. It says it will review its approach and review the team’s resources to enable timely updates of data onto the HMO database. It says it will also review the HMO database and begin any proportionate and reasonable action needed to resolve cases where necessary planning permission is not in place. This is positive.

Guidelines: parking

37. Mr X complains that the Council failed to follow its own guidelines regarding parking. He says the Case Officer did not visit the site. He says the school the Case Officer referred to was knocked down years ago and a residential care home is being built there.
38. The Case Officer’s report refers to the Council’s car parking standards which require two spaces to be provided for a four-bedroomed HMO like Property A. The Case Officer said the application had only one off-road parking space. He noted there were no parking restrictions on the street. For this reason, he concluded that a shortfall of one parking space would not be a reason to refuse the application.
39. This is a decision the Council is entitled to make. I find the Case Officer appropriately assessed the application in line with the Council’s parking standards.
40. In the Council’s response to Mr X’s complaint, it acknowledged that the Case Officer’s reference to the school was inaccurate. A minor error such as this is not significant enough to constitute fault. The Council said this was not a significant point in the decision-making process. I agree. For this reason, I do not find the Council at fault.
41. I find that the Case Officer did visit the site. I find that the Case Officer knew what he was assessing when he determined the application. For this reason, I do not find the Council at fault.

Engagement with Mr X’s questions

42. Mr X complains that the Council made it difficult to object to the application because it failed to engage with his questions.
43. The Council is not obliged to respond to all questions or correspondence from third parties about planning applications. In this case, Mr X is not the applicant. He is therefore a third party to the planning process.
44. The Council responded to Mr X’s complaint about this point. It said it could not respond to individual letters of representation because of the numbers of representations and questions it receives. It said it considers representations and summarises them in the Case Officer’s report.
45. I find that this is what the Council did. The Case Officer summarised all objections received about the planning application in his report, including Mr X’s comments. The Case Officer considered Mr X’s objections when assessing the application as he should have done.
46. Therefore, I do not find the Council at fault.

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Final decision

47. I have completed my investigation. I find the Council at fault for delays updating its HMO database. However, I do not find the fault caused Mr X injustice.

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Investigator's decision on behalf of the Ombudsman