Summary: The Council took too long to respond to Resident A’s complaint to it. The Council has apologised and offered Resident A £150 in recognition of the distress it caused them. This is a reasonable way to settle this part of their complaint. There was no fault in how the Council handled planning matters when it granted permission for Resident A’s neighbour to keep the outbuilding he had erected, including how it considered the impact on Resident A’s disability.

The complaint

1. Resident A complains about how the Council has handled a retrospective planning application to retain landscaping and an outbuilding in their neighbour’s garden. In particular, Resident A complains the Council:
• Mishandled the consultation period of the application;
• Refused to discuss the application with them;
• Used inaccurate measurements and was biased in its planning report;
• Failed to take into account the impact of emissions from the wood burner on their medical condition and its duties under the Equality Act; and
• took too long to deal with their complaint to it.
2. Resident A says they have suffered huge anxiety from the stress of the situation. They are extremely saddened by the Council’s failure to meet its duties under the Equality Act and that dealing with the Council has caused them stress and anxiety.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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. I considered the information provided by Resident A. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties before reaching a final decision.

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What I found

The law and policy

Publicity for planning applications

6. Councils are required to give publicity to planning applications. The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice or neighbour notification.

Planning law and government policy

7. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
8. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. Government statements of planning policy are material considerations.
9. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
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. Permitted development allows a person to install a wood burner flue provided it is not in a principal or side elevation of a house or in a wall fronting the highway.

Building regulations

11. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Regulations set standards for the design and construction of buildings and also ensure the health and safety of people in and about those buildings. 

Equality obligations

12. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
13. Organisations carrying out public functions cannot discriminate on any of the nine protected characteristics listed in the Equality Act 2010 and to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics' referred to in the Act include disability
14. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.
15. The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

What happened

16. Resident A lives with their spouse Resident B in a semi-detached house, in an Area of Outstanding Natural Beauty (AONB). Resident A and their neighbour, have sloping rear gardens that back onto farm and woodland. Resident A suffers with a rare health condition. Their neighbour excavated part of his garden to level it and installed an outbuilding for use as a family room. The side of the outbuilding facing away from Resident A’s home is fully glazed and he also installed a wood burner and flue.
17. The Council decided that the outbuilding needed planning permission. The neighbour submitted an application. The Council published the application on its website. Resident A’s spouse found the application on 7 April and it said that the decision should be made by 9 April. This date reflects that by law, councils have eight weeks to decide a planning application. This was before the closing date for objections. The Council confirmed to Resident A that the decision would not be made until after the closing date. Due to the COVID-19 restrictions, the Council had temporarily suspended putting up site notices. Restrictions eased and the Council put up a site notice on 4 May.
18. Resident A and their family submitted objections to the outbuilding. They said it did not meet the Council’s planning policies because it did not respect or contribute to the character of the AONB, or the site and surroundings, or reinforce the natural and build landscape character of the area, as required by the Council’s various planning policies. The objectors also said the outbuilding was overbearing and unnecessarily large and would have an overshadowing and massing effect on Resident A’s property. Resident A also raised concerns that emissions from the flue would impact on their health condition.
19. The Council also received 17 contacts in support of the application. One of these included Resident B’s email address. They contacted the Council. It apologised and removed the email address from its website. However, shortly after the Council published another supporting email that made some derogatory comments about Resident B. The Council apologised again, removed this and gave additional training to the relevant member of staff, and alerted all staff to this. It considered notifying the Information Commissioner but decided that it did not need to do so. The supporting comments also gave personal information about the applicant such as their occupation, but the Council did not remove this.
20. The Council granted planning permission. The planning officer’s report:
• Describes the site and its relation to Resident A’s home. It says the outbuilding has a maximum height of 3.4 metres. The furthest elevation facing away from the houses is fully glazed and faces open countryside. The double doors and window face the applicant’s own house.
• Says the Council’s local plan has policies relating to extensions, alterations and outbuildings, the AONB, maintaining the landscape character, and environmental pollution. The report also noted that the National Planning Policy Framework and Planning Policy Guidance are material considerations.
• Sets out the objections and considers the impact on Resident A’s home. It says any view of the outbuilding from Resident A’s ground floor windows is prevented by planting and the fence on the boundary. The outbuilding is at least 21 metres from the rear of the houses. The rear gardens slope away from the houses. The ground level is lower than the fence line and the outbuilding protrudes around one metre above the fence, the wood burner flue extends above the roof line of the outbuilding.
• The outbuilding is at an angle to the boundary and is 70cm from it at its closest point. Resident A objected on grounds of massing and overshadowing, but the officer concluded that given the orientation, and the limited height above the fence line, it could not justify refusing the application for overshadowing. It notes that Resident A could erect a garden building by permitted development rules and this outbuilding would be no more intrusive.
• Considers the visual impact of the outbuilding and says that the external materials and the flue are not obtrusive.
• Explains the wood burner is not subject to planning control, but the impact of this would be no different from any other nearby residential property, and also would most likely be used in the winter months when Resident A is less likely to be using the garden.
• Relevant planning policy says the design should not detract from the character and appearance of the locality. The outbuilding will not over dominate the houses or adversely impact on its setting, given its siting and that there is still ample outdoor amenity space. The external materials are appropriate.
21. Resident A complained to the Council. They said the Council had mishandled the consultation period. Resident A also complained that the Council had failed to take into account the impact of the wood burner on their disability. They said that they would use the garden in the winter months and in any case, the Council should not have assumed that the neighbour would not use the wood burner at other times of the year. Resident A asked the Council specifically how it had considered the Equality Act and its Public Sector Equality Duty when it considered this issue.
22. The Council responded on 23 December 2021:
• It agreed that the planning report should not have referred to whether Resident A would use the garden in the winter or whether the use of the wood burner would be restricted to the winter months. However, the planning report makes clear that an objector raised a health issue in relation to the burner and that the Council will not refuse the application on this basis because it is no more detrimental than a wood burner in any other nearby property. The Council also reiterated that the wood burner is not subject to planning control because it can be installed without planning permission and its impact is controlled by building regulations. The Council concludes it is satisfied that it properly considered their medical condition.
• It explained that it had given sufficient time for consultation based on the site notice. The application coincided with the first national lockdown and so the Council suspended its site visits and publicity of planning applications and this meant the site visit notice was not put up until 1 May. It apologised to Resident A that it had not explained this earlier.
• It is not required to discuss applications with residents, and would not normally do so. This is made clear on its website.
• The Council said it had already dealt with the breaches of data relating to their spouse.
23. In the meantime, Resident A wrote to a director of service with questions taken from a government questionnaire about discrimination in the provision of public services and functions. Resident A set out in their letter that they believed they had been discriminated against because they have a protected characteristic and they have been negatively affected by the planning permission. Resident A’s letter says the Council had not made one concession on the basis of their disability, and had failed to foster good relations between them and those who do not have their protected characteristic. The Council Director said he would investigate this and respond to them.
24. Resident A asked that this be escalated to stage two of the Council’s process. They said that the planning officer did not have the knowledge or expertise to assess the impact of the wood burner on their health, and did not seek guidance from senior officers. They said the Council’s response ignored its duties under the Equality Act. Resident B insisted that the building control service investigate the fitting of the wood burner. It was found to be wrongly installed and had to be refitted. In addition, the Director had not responded to Resident A’s questions about discrimination.
25. The Council further responded to Resident A’s complaint, but still did not address their concerns about discrimination. The Council said that it did not find any further fault in the matters they had complained about. However, it had taken too long to respond to them and recognised that this had caused them distress. The Council apologised and offered to pay £150 in recognition of this. It also told Resident A that it was reviewing its complaint service.
26. Resident A remained dissatisfied with the Council’s response and they complained to the Ombudsman. In particular, Resident A was concerned that the Head of Planning had conducted the stage two investigation when his department was the subject of the complaint, and the Council had failed to respond to their questions about its Equality Act duties.

Was there fault by the Council causing Resident A an injustice?

27. The Council has acknowledged that it wrongly published Resident B’s personal details on its website when these were included in an objection to the planning application. I appreciate that this was very distressing for Residents A and B. However, the Council quickly removed the information, apologised to them and retrained its staff to prevent a recurrence. I would not expect the Council to take further action in this regard.
28. The Council also acknowledged that it took too long to deal with Resident A’s complaint to it. It has apologised to Resident A for this and offered to pay them £150. I appreciate that Resident A finds this amount insulting. However, the amount offered relates only to the impact of the Council’s delay in dealing with their complaint, and not to any impact of the outbuilding. As such, the Council’s offer is in line with the Ombudsman’s guidance on remedying complaints. It is an appropriate way to remedy the injustice caused.
29. There is no significant fault in how the Council handled the consultation period dates. It could have been clearer with regard to the statutory decision date and the consultation period so that people would know that it would not decide the application before the consultation period had ended.
30. The Council advertised the application in line with its policy by putting up a site notice. It did not need to do more to alert interested parties. The Council could have given more consideration to how those shielding might view a site notice during the COVD-19 restrictions, despite there being no express government guidance on this.
31. In any event however and despite Resident A’s concerns about the dates given on the website, they and their spouse submitted an objection and the Council received more than 20 other submissions on this application. They were not placed at a disadvantage and it seems that others had the opportunity to comment. In addition, the Council considered all the relevant factors, and it is hard to see what else could have been raised in objection.
32. The Council’s planning report addresses how it considered the objections and the material planning considerations in terms of its planning policies. The Council’s planning officer clearly understood the development and could more readily assess its impact as it was already built. The officer properly considered the impact of the outbuilding on Resident A’s amenity and on the AONB. I realise that Residents A and B do not agree with the Council’s assessment, but it is open to it to reach this view provided it takes the relevant factors into consideration. The planning report is not biased and the measurements are not inaccurate such that would alter the outcome of the planning application.
33. The Ombudsman cannot find that a council has breached the Equality Act 2010. However we can find fault by a council where it has failed to take account of its duties under the Act, including its public sector equality duty. The Council assured Resident A in its complaints response that it had considered the impact on their health of approving the outbuilding. In general, we would expect a council to keep records of its consideration which might include a written assessment of impact on equality. The Council has not shown that it has done that here.
34. However, a householder can install a wood burner without planning permission and so it would be difficult for the Council to refuse the outbuilding on that basis. In terms of health, the safety of emissions from the wood burner is addressed via building regulations, requiring that the wood burner and flue are properly installed. Resident A says this how now been done. As such, the impact of the Council’s Equality Act duties here is minimal and unlikely to have altered the outcome significantly. There is no fault in how the Council reached its decision to approve the wood burner.
35. The Council should have responded to Resident A’s contact about the Equality Act considerations of this planning decision, and it was fault not to do so. However, its offer to pay Resident A £150 in recognition of the impact of its delay on them is in line with the Ombudsman’s guidance on remedying complaints.
36. Resident A is concerned that the same Director responded to their complaint at stage two of the Council’s process. The Council’s policy says that a stage two response should be by a senior manager. The Director is suitably senior and had not been directly involved with the planning decision complained about.

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Final decision

37. I have completed my investigation. There was fault by the Council causing Resident A injustice. I am satisfied that the action already taken by the Council has remedied their injustice.

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Investigator's decision on behalf of the Ombudsman