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Royal Borough of Kingston upon Thames (20 012 283)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 26 Jul 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to approve his neighbour’s planning applications. There was no fault in the Council’s decision making process.

The complaint

  1. Mr X complained about the Council’s decision to approve his neighbour’s planning applications. Mr X said that both new developments breach the Council’s policy and guidance and so should have been refused.
  2. Mr X says the developments will affect his amenity.

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The Ombudsman’s role and powers

  1. 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)
  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 read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    • views from a property;
    • the impact of development on property value; and
    • private rights and interests in land.
  4. We recognise that councils have discretion to depart from their policy and guidance, but they need to demonstrate they have exercised that discretion properly. We normally expect to find evidence of consideration of the key material issues in the case officer’s report, which is written to advise the decision making body or individual.
  5. Some councils do not produce and publish separate case officer reports, but instead put details of the reasons for their decisions in the decision notices themselves. When this happens, evidence of consideration and reasons are usually found in the ‘informative’ sections of decision notices.
  6. We accept that delegated decision details of reasons might be written differently, as their target audience is a professional planner, not a member of the planning committee. However, delegated decisions and reports still need to demonstrate the core issues have been considered, albeit briefly stated.
  7. However, the courts have made it clear that:
    • case officer reports do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and
    • case officer reports do not need to include every possible planning consideration, but just the principal controversial issues.
  8. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
  9. Planning guidance and policy should not be treated as if it creates binding rules that must be followed. Before they make their decisions, councils must take account of relevant policy and guidance along with other material planning considerations.
  10. It is important to remember that in making its decision, it is for the council to make judgements and decide:
    • which policies are relevant to its decision; and
    • what weight should be given to policies, guidance and other planning considerations.
  11. Only the person who made the planning application has the right of appeal to the planning inspectorate. The planning inspector can exercise their own judgements on planning matters, and if they disagree with the decisions the council made, the inspector can uphold the appeal and make a different decision.
  12. Neighbouring owners are not a party to the council’s planning application decision and so have no right of appeal against the planning judgements it makes during the process. Neighbours and other third parties may only challenge council decisions by asking for a review of the decision making process, either to the High Court or to the Ombudsman.
  13. Third parties cannot expect to be treated in the same way as planning applicants. This is because they do not own or control the application site. The council should consider any comments third parties raise, but it is not obliged to correspond with them on planning matters before or after it makes its decision. Neither does the council need to satisfy third parties about its planning judgements or reasoning, beyond explaining where its decision and background papers are to be found.

What happened

  1. Mr X’s neighbour applied for planning permission to build a large house extension. Later, the neighbour applied for permission to build an outbuilding.
  2. Mr X employed a planning consultant to advise him about the application. The planning consultant produced a report that Mr X sent to the Council before it made its planning decisions. The planning consultant said that the development did not accord with policy guidance found in the Council’s planning guidance.
  3. The Council approved the applications. The decision notice includes an ‘informatives’ section, which sets out the case officer’s thoughts on the development and how it related to local and national policy and guidance.
  4. The case officer refers to comments from consultees, including neighbours. The case officer said that while the developments did not satisfy the Council’s published guidance in several ways, the developments were considered acceptable because they would not cause significant impacts on the environment.
  5. Mr X was unhappy with the decisions and complained to the Ombudsman. In response to an earlier draft of this decision, Mr X said:
    • the decisions are not compliant with ‘rules’ found in the Council’s design guide;
    • the Council failed to protect his amenities and ecological and heritage assets; and
    • the Council failed to respond with sufficient detail about his objections and concerns.

My findings

  1. We are not a planning appeal body to the judgements and decisions councils make. Our role is to review the process by which planning decisions are made. We look for fault in the decision making process, and if we find it, we decide whether it caused an injustice to the complainant.
  2. In this case, I can see that before it made its decisions, the Council considered the application plans, the comments from neighbours and other consultees, policy and guidance considered relevant. The Council has followed the decision making process we would expect and so I find no fault.
  3. In relation to the main points Mr X raised in his comments on my draft decision, my views are as follows.
  4. The Council has discretion on how to apply policy and guidance. It decides what weight to give different planning considerations. In considering policy and guidance, it should not treat it as if it creates binding rules that must be followed. There is enough information in the Council’s decision document to show it considered policy and guidance.
  5. It is important to remember the test the courts apply to evidence of consideration from planning officers in planning decision making, which I explain in the paragraphs above. Though the Council did not produce separate case officer reports, there is enough detail in the informative section of the decision notices to show the core issues were taken into account.
  6. The evidence shows the Council considered the impact the developments had on neighbouring amenity. There is no evidence of consideration of specific ecological or heritage concerns, though it does consider whether the developments are consistent with the character of the surrounding area. It is not for the Ombudsman to decide these concerns should have been treated as core issues, and so I cannot say it was fault for the Council not to refer to them in its decision notice.
  7. Mr X is dissatisfied with the Council’s response to his objections and complaint. The Council has given him an opportunity to comment on the planning applications and it has responded to his complaint. It is not obliged to treat Mr X as a party to the planning decision. Mr X knows what decision the Council has made and is aware of its explanation about how it reached its conclusions. I find no fault in how the Council considered the planning application or how it responded to Mr X’s complaint. Because of this, I cannot require the Council to do more than it has already done.

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Final decision

  1. I completed my investigation as I found no fault in the Council’s decision making process.

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Investigator's decision on behalf of the Ombudsman

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