Summary: Ms B complained the Council failed to consider its planning policies, permitted development rights and how a development would impact on her amenity when it granted planning permission. Ms B also says the Council failed to refer the matter to committee for decision. There is no fault in how the Council dealt with the planning application.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained about the way the Council considered a planning application submitted by her neighbour. Ms B complained the Council:
• failed to properly consider its own policies and permitted development rights when it granted planning permission;
• failed to consider her representations and the impact on her amenity;
• based its decision on concerns about an appeal and the costs involved with that; and
• unreasonably failed to refer the matter to committee for decision when her Councillor requested it.
2. Ms B says fault by the Council has resulted in a development which has a significant impact on her amenity.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Ms B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
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 complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Ms B 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

What should have happened

7. The National Planning Policy Framework says the presumption in favour of sustainable development does not change the statutory status of the development plan as the starting point for decision-making. Where a planning application conflicts with an up-to-date development plan permission should not usually be granted. It says local planning authorities may take decisions that depart from an up-to-date development plan, but only if material considerations in a particular case indicate the plan should not be followed.
8. The Council’s planning policy DM21 says proposals within the residential curtilage of a dwelling house, including extensions, will only be supported where they meet the relevant criteria. The policy states extensions and alterations to existing dwellings will be supported only if, taking into account any previous development to the original building or within its curtilage, they meet all of the following criteria:
• the resulting development is in keeping with the character and appearance of, and is subordinate to, the original dwelling and surrounding properties, and the wider setting;
• the resulting development would not have a significantly adverse effect on the amenities of nearby residential properties, or the future occupiers of the dwelling house;
• suitable provision is included for access and parking;
• where the building was originally constructed for a non-residential purpose, the resulting development would be of a limited scale consistent with the retention of the architectural and functional character of the original building; and
• in the greenbelt, the resulting development would not result in disproportionate additions over and above the size of the original dwelling.
9. The explanation section of policy DM21 says that, as a general guide, subordinate and small-scale extensions/outbuildings should not increase the size of the original dwelling by more than 30%.
10. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.
11. The Council’s scheme of delegation confirms the planning committee will determine those applications which have been called in for determination in accordance with the call in procedure. The scheme states in the event no call in request is received within 21 days of the date of the application notification the case officer shall decide the application under delegated powers.

What happened

12. Ms B’s neighbour submitted a planning application for a single-storey rear extension and rear roof dormer to the Council. The Council consulted Ms B on the application and she asked for a case officer to visit her. At that point the Council had not allocated case officer to the case. Ms B had also contacted her Councillor about the application. The Council had consulted Ms B’s Councillor, as the local ward member, in October 2019. At that point the Council advised the ward member if he wanted to call the application in for decision by the planning committee he would need to put a request in writing by 15 November 2019.
13. The Council allocated a case officer to consider the planning application and the case officer met with Ms B in January 2020. Following that meeting the local ward member asked the planning department to call the application in for decision by the planning committee so residents could have their say. The head of planning considered that request and refused it as the local ward member had not submitted the request by the required deadline.
14. The Council considered the planning application and granted planning permission.

Analysis

15. Ms B says in granting planning permission for the development the Council failed to properly consider its own policies and permitted development rights. In particular, Ms B points out the development does not accord with policy DM21 as it is not in keeping with the area and would have a significant impact on her amenity.
16. I have carefully considered the report for the planning application. I am satisfied the relevant provisions within the Council’s development plan, including policy DM21, are set out in the report. I am also satisfied the report made clear the development did not accord with the Council’s policy DM21. I am satisfied though the report went on to record why officers nevertheless considered the development acceptable in planning terms, referring to the fact the proposed development sits to the rear of the property and is therefore not easily visible from public vantage points. The report also recorded officer’s views that the impact the development would have on the character of the area was not dissimilar to the impact the applicant would create if they constructed a similar development under permitted development rights. Taking those matters into account the Council did not consider it could justify refusing the application on the basis it did not accord with Council policy. As I am satisfied the Council reached that view properly I have no grounds to criticise it.
17. In reaching that view I am satisfied the Council set out in the report the difference between the proposed development and that which could be constructed under permitted development rights. As the Council took into account the relevant policies and explained why it considered the development should be granted permission despite not complying with those policies I am satisfied there is no fault in the process by which the Council reached its decision. As that is the case I cannot comment on the merits of the decision reached.
18. I recognise though Ms B believes the Council should rigidly follow the development plan and not allow development that does not accord with that plan. It is also clearly Ms B’s view that the Council should not take into account what an applicant could construct under permitted development rights. However, the Council has to consider each application on its planning merits. As I say in paragraph 7, the National Planning Policy Framework is clear councils can take decisions that depart from the development plan if they consider there is a material consideration in a particular case that shows the plan should not be followed. In this case the Council considered that applied because the applicant could construct a similar extension with a similar impact under permitted development rights. It was not fault for the Council to take that into account when reaching its decision. I therefore have no grounds to criticise it.
19. Ms B says the Council failed to consider her representations and the impact on her amenity when granting planning permission for the development. Having considered the report for the application I am satisfied the representations Ms B put forward were taken into account as they are listed in the report. I am also satisfied the report went on to discuss how the development would impact on Ms B’s amenity. It is clear from the report officers considered the proposed development would have a significant impact on Ms B’s amenity in terms of overlooking, overbearing, overshadowing and loss of light. The evidence I have seen satisfies me though the Council granted planning permission as it was satisfied a similar development constructed under permitted development rights would have a similar impact on Ms B’s amenity.
20. I understand Ms B’s frustration that planning permission has been granted for a development which will harm her amenity. However, as I said in paragraph 3, it is not my role to comment on the merits of the Council’s decision unless there is evidence of fault in how that decision has been reached. I have made clear it was not fault for the Council to take into account that a similar development with similar impact could be constructed under permitted development rights. As the Council properly considered that point it has reached a decision it is entitled to reach, albeit I recognise it is a decision Ms B strongly disagrees with. It is not, however, a decision the Ombudsman could criticise given there is no evidence of fault in how the Council reach that decision.
21. Ms B says the Council based its decision on concerns about an appeal and the costs involved with that. I have found no evidence to support that allegation. The only reference I can see in the documentary evidence to the issue of the appeal and costs is in the Council’s response to Ms B’s complaint. In its response the Council points out if it had refused planning permission and not taken into account the development Ms B’s neighbour could build under permitted development rights it would likely open itself to a costs order if the applicant appealed. The Council was not wrong to explain that to Ms B as it would be expected to take into account what Ms B’s neighbour could have constructed under permitted development rights when deciding whether the proposed development was acceptable in planning terms. I am satisfied though there is no evidence the Council was persuaded to grant planning permission in this case due to concerns about the costs of a potential appeal.
22. Ms B says the Council should have referred the application to committee for decision when her Councillor requested it. Ms B says although her Councillor did not submit the request within the required 21 days this was only because she had not been properly advised of the call in procedure.
23. I set out the relevant sections of the Council’s scheme of delegation in paragraph 11. As I say in that paragraph, for an application of this nature to be considered by committee it would have to be called in by the local member within 21 days of the local member being notified of the application. In this case it is clear the local member did not put in a call in request until considerably after that 21 day deadline had expired. I am therefore satisfied the Council properly followed its scheme of delegation when it decided the application under delegated powers. Consequently, I cannot criticise the Council for making the decision under delegated powers.
24. In reaching that view I understand Ms B’s concern she was not advised of the call in procedure until well outside the 21 day time period. However, Ms B’s Councillor would have known of the 21 day time limit. As he did not submit the call in request within that 21 day period I cannot criticise the Council for taking the decision under delegated powers.

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Final decision

25. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman