Summary: There was fault by the Council. It published personal information about Mr B on its website, and it took too long to respond to his complaint to it. The Council has apologised, retrained staff and offered Mr B £100. This is a reasonable way to settle this part of his complaint. There was no fault in how the Council handled planning matters when it granted permission Mr B’s neighbour to keep the outbuilding he had erected.

The complaint

1. Mr B complains about how the Council has handled a retrospective planning application to retain landscaping and outbuilding in his neighbour’s garden. In particular, Mr B complains the Council:
• Mishandled the consultation period of the application;
• Failed to take into account the vulnerable residents who were shielding when it decided to recommence putting up site notices;
• Breached data rules when it published personal information about him and others;
• Failed to take into account its published planning policies and consider the impact of the outbuilding on him and the character of the area;
• Failed to take into account the impact of a wood burner on the health of a family member; and
• took too long to deal with his complaint to it.
2. Mr B says that dealing with the Council has caused him stress and anxiety for which he now has to take medication.

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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 Mr B. 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 taken the views of both parties into account 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. The Council’s policy says it will advertise an application on its website and by a site notice.

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. 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.

The Council’s planning policy

11. The Council’s relevant planning policies say development must protect the amenity of neighbouring properties; the appearance and design of an outbuilding must respect and not detract from the character and appearance of the area; it must respect and conserve the historic landscape particularly in the AONB; generally conserve the rural character of the countryside; and contribute positively to the character of the site and surroundings.

Building regulations

12. 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. 

What happened

13. Mr B and his spouse live in a semi-detached house, in an Area of Outstanding Natural Beauty (AONB). He and his neighbour have sloping rear gardens that back onto farm and woodland. A member of the household suffers with a rare health condition. Mr B’s 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 Mr B’s home is fully glazed and he also installed a wood burner and flue.
14. The Council decided that the outbuilding needed planning permission. The neighbour submitted an application. The Council published the application on its website. Mr B 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 him 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.
15. Mr B and his 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 various policies. The objectors also said the outbuilding was overbearing and unnecessarily large and would have an overshadowing and massing effect on Mr B’s property. Mr B raised concerns that emissions from the flue would impact on the health condition. Mr B pointed out that the neighbour had removed part of the hedgerow to take in excavation equipment.
16. The Campaign for the Protection of Rural England also objected to the outbuilding on the grounds that it does not meet the Council’s planning policy because it detracts from the character of the AONB; does not generally conserve the intrinsic value of the locally distinctive rural character of the countryside; does not contribute positively to the character of the site and surroundings; and its siting layout and design does not maintain and reinforce the natural and built character of the area.
17. The Council also received 17 contacts in support of the application. One of these included Mr B’s email address and another made some derogatory comments about him. The Council apologised for this and removed Mr B’s email from its website. It 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. Mr B says it was too late as the data breach has resulted in him being shunned by his neighbours and broken glass and debris thrown onto his drive. He reported this to the Police.
18. The supporting comments also gave personal information about the applicant such as their occupation, but the Council did not remove this.
19. The Council granted planning permission. The planning officer’s report:
• Describes the site and its relation to the Mr B’s home. It says the outbuilding at its maximum has a 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.
• The Council’s local plan has adopted 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 Mr B’s home. It says any view of the outbuilding from Mr B’s ground floor windows is prevented by planting and the fence on the boundary. It 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 at its closest point. Mr B 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 Mr B 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 the that the external materials and the flue are not obtrusive.
• 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 residents would be 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 sitting and that there is still ample outdoor amenity space. The external materials are appropriate.
• Notes there is no preservation order to prevent the hedgerow being cut back, and as such, the planning system cannot prevent an opening in the hedgerow.
20. Mr B says the Council used misleading language in its planning report. The Council did not visit the site until June, when the deadline for objections had expired. Mr B says the planning officer only guessed the height of the building above the fence line and the breadth of the flue. He also complains that the Council did not consult Natural England about the impact on wildlife especially as the applicant had removed part of the hedge.
21. He raised that the applicant had used inaccurate information in the application. He had said that no hedgerow would be removed, when he had already removed a section to allow excavation machinery access. The applicant also said that there was no tree within falling distance of the development, when there is a tree in his garden.
22. Mr B submitted evidence of a disability that will be affected by flue emissions. He says the Council did not give this enough consideration, nor that the flue is low level and so they would be more severely affected by emissions. The Council reiterated that the applicant could install a wood burner and flue under permitted development rules and that it could not stop them.
23. Mr B told the Council he was concerned that the outbuilding did not meet building regulations. The Council first told Mr B that the outbuilding was exempt from building regulations as it was too small. However, the Council had got this wrong and so it then asked Mr B to take this matter up with the building control service directly as this is provided by a partner council on its behalf. The partner council inspected the outbuilding and decided that some more work was needed to ensure it complies with building regulations.
24. Mr B complained separately to the Council about how it handled the planning application. During the COVID-19 restrictions, it extended its deadline for responses to 40 working days and told Mr B to expect a response by 2 October 2020.
25. However, the Council did not respond until 21 December 2021. It said:
• Mr B was mistaken, the 9 April was not the deadline for comments on the application. 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. The Council apologised that it had not explained this to him sooner.
• The Council does not accept that it failed to consider those residents who were shielding because there was no government guidance to indicate that the Council should do anything in addition to posting a site notice in these circumstances.
• The planning report does not need to refer to misinformation but must consider the material planning considerations. The officer assessed the application correctly and with reference to the policies.
• It was not clear whether the comments sent in about the applicants were a data breach. The comments were not removed as it was unlikely to be a breach.
• Mr B can complain to a partner council who has a shared building control service with the Council.
26. Mr B asked that this be escalated to stage two of its process. The Council responded on 10 March 2021 but said it had not changed its view of his complaint. It did however offer to pay Mr B £100 in recognition of the distress and frustration its delays in dealing with his complaint had caused him.
27. Mr B remained dissatisfied with the Council’s response. In particular that the Head of Planning had conducted the stage two investigation when his department was the subject of the complaint. The Council responded that the officer was a suitable senior manager and is best placed to respond to his complaint.

Was there fault by the Council causing Mr B an injustice?

28. The Council has acknowledged that it wrongly published Mr 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 Mr B. However, the Council has removed the information, apologised to Mr B and retrained its staff to prevent a recurrence. I would not expect the Council to take further action in this regard.
29. The Council also acknowledged that it took too long to deal with Mr B’s complaint to it. It has apologised to Mr B for this and offered to pay him £100. This is in line with the Ombudsman’s guidance on remedying complaints. I am not minded to recommend the Council take further action.
30. Mr B is concerned that the Head of Planning responded to his 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 Head of Planning is suitably senior and had not been directly involved with the planning decision complained about.
31. 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.
32. 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. In any event however and despite Mr B’s concerns about the lack of notice, he submitted an objection and the Council received more than 20 other submissions on this application. He was 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.
33. Mr B raised that there had been inaccurate information in the planning application. The Council is correct that the hedgerow was not protected. The Council has not addressed that there is a tree in his garden. However, this is very unlikely to have altered the planning decision.
34. 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 Mr B’s amenity and on the AONB. I realise that Mr B and the Campaign for Rural England 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.
35. The Council says that the installation of a wood burner is not subject to planning control. It is correct that 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. There is no fault in how the Council handled the issue of the wood burner.
36. A partner council provides the building control service on behalf of Rother District Council. However, Rother District Council remains responsible for its building control duties. It was acceptable for the District Council to refer Mr B to the partner council to raise concerns about building regulations. Mr B raised some concerns but has not given me any information to suggest that either council has not discharged its duties correctly. There is no apparent fault by Rother District Council here.

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Final decision

37. I have completed my investigation. There was fault by the Council causing Mr B injustice. I am satisfied with the action taken by the Council.

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Investigator's decision on behalf of the Ombudsman