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Council of the Isles of Scilly (20 011 461)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 14 Jun 2021

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint that alleged errors in the decision making process when the Council determined a planning application for a development.

The complaint

  1. The complainant, whom I shall refer to her as Mrs X, acts on her own behalf as well as a group of her neighbours. Mrs X says there were errors in the decision making process when the Council determined a planning application for a development close to her home. Mrs X says:
    • A councillor did not recuse himself when the full council met to determine the planning application despite having an alleged disclosable pecuniary interest and friendship with the applicant.
    • At the meeting, the planning officer misled councillors by telling them the applicant had consulted with neighbours.
    • The development will lead to overshadowing and loss of natural light.
    • The planning officer failed to draw relevant information to the attention of councillors.
    • The planning officer did not follow council policy on the listing of historic buildings.
    • The decision was unreasonable.
    • Their right to privacy under Article 8 of the Human Rights Act 1998 have been infringed.
  2. Mrs X says the Council should be asked to reconsider its decision and make it lawfully.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the complaint and background information provided by Mrs X and the Council. I considered details of the planning application and council meeting. I sent my initial thoughts on the complaint to Mrs X and other complainants as well as the Council. I considered the comments I received on the draft decision statement.

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What I found

Background

  1. The Council received a planning application which proposed demolition of a single storey garage and the building of a house in its place. The application was referred to the full council for determination.
  2. The planning officer prepared a report for the council. The report set out the planning history of the site. The planning officer noted an application for development on the site had been refused planning permission in 2016. The officer explained the application was required to address the reasons for refusal of the 2016 application.
  3. The report summarised the objections the Council received against the application. The full letters were also included in an appendix of the report.
  4. The report included the relevant local plan and national policies that applied to the application. The planning officer then assessed the application against those policies. For the sake of brevity, I do not propose to repeat the entirety of the officer’s assessment here. But for the purposes of this investigation, I will set out the officer’s assessment of the proposal’s impact on neighbouring amenity.
  5. The officer referred to the need to maintain privacy and prevent overshadowing. The officer said the proposal did not seek to position the building any closer to three of the surrounding properties than the existing garage. The officer said there would be a minimum gap of 6.7 metres between the proposed dwelling and those neighbouring properties. The officer said the proposed dwelling would not be any closer to existing dwellings opposite. The officer said the overshadowing of these properties would reduce as the sun moves through the morning towards midday.
  6. The officer said the proposed dwelling would lead to overshadowing of three of the closest properties northwest of the site in the early part of the day during the summer. The officer said the two storey element of the proposed dwelling would be apparent and would have some impact upon light for some of the early morning.
  7. The officer considered the proposal’s impact on a property to the north of the site. The officer said the proposed dwelling would be positioned to avoid an overlap with the alignment of that property. The officer noted there would be a gap of around 9.3 metres between the rear wall of the proposed dwelling and the front building line of that property to the rear, with a gap from corner to corner of 10.3 metres. The officer said there would be some overshadowing in the early morning which would decrease as the sun moves through the sky to midday.
  8. The officer concluded the impact from overshadowing would be minimal.
  9. The officer noted there would be some reductions in light levels because of the proposal. However, the officer said there was nothing to suggest the availability of light would fall below acceptable levels for neighbouring properties when considering the nature and density of surrounding development and the perimeter around the site that would be maintained. The officer said the solar loss as a result of the development would not be severe enough to justify refusal of planning permission.
  10. The officer proposed a condition to require submission of finished levels data of the site to ensure there would not be a higher form of development than shown on the proposed plans.
  11. The officer considered the proposal’s impact on the property to the south of the application site. The officer noted the property was on higher land up a slope. Because it is to the southwest of the application site, the officer said it is in an elevated position that would be unaffected by any shadowing.
  12. The officer addressed the issue of overlooking. The officer noted the positioning of ground floor windows and was satisfied they would be located behind the proposed boundary wall.
  13. On the first floor, the officer noted the main habitable windows face southwest and away from neighbouring properties. The officer noted a side window which faced a property to the southwest of the site. The officer said there would be a distance of around 8 metres towards that neighbouring property and the window would be a low level and beneath the eye level of occupants.
  14. The officer noted there would be two high level windows, one narrow low level window and a doorway to the rear of the proposed building. The officer said these would be unlikely to give rise to overlooking as they were above and below eye level and were for light purposes only. The officer proposed a condition requiring the door and the low level window to be obscure glazed to address the perception of overlooking.
  15. The report included the officer’s assessment of the application against the reasons for refusal of the 2016 application. The officer said the 2016 application had been refused because it would have led to overdevelopment of the site and failing to preserve or enhance the character of the conservation area.
  16. The officer noted the applicant had acquired additional land which would mean the footprint of the proposal would take up less of the application site when compared to the 2016 scheme. The officer said the design of the proposed dwelling had been changed to a more innovative distinctive design. The officer addressed the proposal’s design separately. I have not included the design assessment here but it is clearly known to the complainants and the Council.
  17. The Council deferred the application because councillors wanted an amendment to reduce the height of the proposed dwelling. The applicant changed the design and lowered the height of the dwelling by 200 millimetres. Planning permission was granted at the second meeting.

Findings

A councillor did not recuse himself when the full council met to determine the planning application despite having an alleged disclosable pecuniary interest and friendship with the applicant

  1. Mrs X says a councillor did not recuse himself from the meeting even though he has an alleged disclosable pecuniary interest and friendship with the applicant. Mrs X says the councillor abstained from voting when the 2016 application was considered at a council meeting. Mrs X says the councillor’s involvement amounts to procedural impropriety on the grounds of predetermination or the appearance of it.
  2. The Council says the councillor sought the advice of the deputy monitoring officer before the meeting and followed the Council’s Code of Conduct for councillors. So, the Council is clear the councillor did not have a disclosable pecuniary interest or any other interest that required him to withdraw from the debate.
  3. On Mrs X’s claim the councillor has a friendship with the applicant, the Council said the councillor noted he has a professional relationship with the applicant and not a friendship.
  4. I note Mrs X did not accept the Council’s account and remains of the view there may have been breaches of the Code as well as the Nolan Principles on public life. However, it is not for the Ombudsman to investigate alleged breaches of the Code of Conduct. This is, in reality, a standards complaint. The complaint should properly be made to the Council’s monitoring officer. The Ombudsman can only investigate a complaint about a monitoring officer’s own investigation of the standards complaint.
  5. I have seen nothing that would lead me to conclude the councillor should have been barred from involvement in the council meeting.

At the meeting, the planning officer misled councillors by telling them the applicant had consulted with neighbours

  1. Mrs X says the planning officer told councillors at the meeting there had been direct consultation between the applicant and neighbours when there had not been any consultation.
  2. The Council said the planning officer presented her understanding of the contact between the applicant and neighbours. It says there is no statutory requirement for an applicant to discuss plans with neighbours ahead of submitting a planning application.
  3. The Council is correct to point out there is no statutory requirement for consultation between an applicant and neighbours.
  4. So, whether there was consultation between the applicant and neighbours is not a material planning consideration. As this was not a material planning consideration, I am not inclined to pursue the point further.
  5. In any event, I note the councillor who asked the question about consultation indicated at the first meeting that he was unhappy about the development. He then voted against it at the second meeting. Similarly, other councillors who expressed doubts about the proposal and voted to defer it at the first meeting, then voted against it at the second meeting. The evidence suggests it is unlikely the planning officer’s remarks on consultation swayed councillors either way.

The development will lead to overshadowing and loss of natural light

  1. The Ombudsman is not a planning appeal body. So he is not able to substitute his judgement for that of the Council’s officers. In dealing with complaints about planning decisions, we will look to see whether there was fault in the process leading to the decision but we cannot determine whether the decision was the right or wrong one.
  2. It is clear the planning officer considered the proposal’s impact in terms of overshadowing and loss of natural light. As the reports to the committee included reasoned justification for the judgements made by the planning officer, I am satisfied the Council assessed the application’s impact on the amenities of surrounding properties in good faith.

The planning officer failed to draw relevant information to the attention of councillors

  1. Mrs X says here the Council’s decision failed to protect garden land in an urban area. Mrs X refers to judicial precedent in support of her claim. Mrs X says this was made clear in the objections the Council received but the planning officer did not draw this to the attention of the councillors. Mrs X considers the garden land required greater protection from development.
  2. The objections were included in an appendix to the committee report and so I am satisfied the committee was made aware of this point about garden land.
  3. The planning officer’s view on the use of the garden land is explicit in the report. The planning officer was not statutorily required to examine Mrs X’s reference to judicial precedent in the committee report. Whether the Council’s decision was contrary to judicial precedent is a matter for resolution in the courts and not a matter for the Ombudsman to now determine.

The planning officer did not follow council policy on the listing of historic buildings

  1. I do not find fault by the Council on this point. The garage was not a designated building or a heritage asset.

The decision was unreasonable

  1. Mrs X says here that it was unreasonable for councillors to have approved the application based on a reduction in the height of a roof ridge by 200 millimetres. She says it was manifestly unreasonable for the planning officer to recommend approval of plans for a larger building when she had previously recommended rejection of previous plans a year earlier.
  2. The planning officer’s report was clear in explaining the reasons why the planning officer considered the application had overcome the reasons for refusal of the 2016 application.
  3. Councillors are not statutorily required to give reasons for their vote at committee meetings. Instead, the reasoning for a decision is expected to be set out in the committee report. If a report recommends approval and councillors vote for approval, then the report is adopted as their reasoning. If a report recommends approval and councillors vote for refusal, then the committee will have to present valid reasons for its decision.
  4. I cannot know whether councillors approved the application based on a reduction in the height of the roof by 200mm. However, I am satisfied the report included an assessment of the height of the development and its impact on the amenities of surrounding neighbours. I do not therefore share Mrs X’s conclusion the decision was unreasonable.

Their right to privacy under Article 8 of the Human Rights Act 1998 have been infringed

  1. I am satisfied the Council considered the proposal’s impact on surrounding properties including the issue of privacy. So, I do not find the Council infringed the complainants’ right to privacy under Article 8.

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Final decision

  1. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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