Summary: Mr B complained the Council failed to take account of his objections to a planning application. We find there was some fault by the Council in that it wrongly stated no objections had been received. However, Mr B’s amenity had been appropriately taken into account. The Council offered some financial recompense to Mr B, providing an appropriate remedy.

The complaint

1. The complainant, whom I shall call Mr B, complained the Council failed to take account of his objections to a planning application for development next to his home. As a result, he considers the impact of the development on his quality of life has not been addressed. He would like the planning permission rescinded.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

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How I considered this complaint

5. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of the response it provided. I also considered information about the planning application which is available on the Council’s website.
6. Mr B and the Council had an opportunity to comment on a draft of this decision. I consider their comments before making this final decision.
7.  

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What I found

Legal and administrative information

8. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
9. Where the development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
10. 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.
11. 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.
12. General planning policies may pull in different directions (for example in promoting residential development and protecting residential amenities).
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. Councils delegate most planning decisions to their officers.

Background to this case

15. Mr B’s immediate neighbours applied to the Council for planning permission for a single-storey side and two-storey rear extension to their home. Both Mr B’s property and the application property are detached houses. The proposed development would extend the side of the existing property along the flank elevation bringing it closer to the boundary with Mr B’s home. As an adjoining neighbour the Council notified Mr B about the application. Mr B instructed a planning consultant to set out objections on his behalf. The agent prepared a report and submitted it to the Council together with some photographs. The Council acknowledged receipt on 10/8 and said it would respond in due course. . The agent had said they would like to speak at Committee about the application.

Mr B’s objections to the application

16. The main points made by the agent on Mr B’s behalf were as follows:

• the applicant was wrong to say there was no tree in falling distance of the proposed development, as there is a tree on Mr B’s property which would be affected by the development, and its loss would harm natural and visual amenity and reduce biodiversity;
• There were differences in land levels and a risk of landslip and damage to Mr B’s property with the proposed removal of a garage to allow for the side extension, and there were also concerns about asbestos in the construction of the garage;
• The proposed design of the development was out-of-keeping and its proportions not in harmony with the rest of the house;
• The increase in built form would adversely impact outlook, create shadow and loss of sunlight and daylight to Mr B’s home; and
• There would be a loss of privacy caused by noise from a proposed games room, and disturbance from laundry room ventilation outlets.

The planning case officer’s report

17. The planning case officer prepared a report for the planning application, with a recommendation for approval. It stated no representations had been received: this was not correct, and was fault.
18. The report noted a site visit had been made, saying ‘Site visit from front garden undertaken on [date] to ascertain relationship between side extension and neighbour at [Mr B’s address]’. It also noted that application plans drawn to a recognised scale showed existing and proposed floor plans and elevations, and the relationship to the two adjacent properties; that the site plan showed both neighbouring properties, and the relationship to the host dwelling; that the applicant had submitted contemporaneous photographs from the site which indicated the relationship between the host property and the adjacent neighbours; and that online aerial photography from 2020 and Google street view from March 2019 confirmed the relationship between the neighbouring dwellings and the host property.
19. In terms of impact on residential amenity, the report set out the following:

• The extent to which elements of the proposed development would extend beyond the rear wall of the existing dwelling, and beyond the extent of Mr B’s dwelling. It noted that the projection exceeded the Council’s own supplementary planning guidance (SPG) by up to 2.5m but set out the opinion that the visual and overshadowing impact of the extensions was ‘significantly mitigated by the existing separation between the dwellings, the modest overall height of the side extension and extent of the rear extension, the fact that the side element is replacing existing outbuildings and the fact that the entire development will be set down from the rising garden and significantly screened by the boundary fencing’.
• The proposed side extension would be visible from Mr B’s property. However, the officer set out that the width of the proposed development was not significantly greater than that of the current outbuildings, and the height of the side extension’s roof eaves matched the height of these outbuildings: that was deemed to significantly reduce any impact on Mr B. The proposed development was deemed to meet the 25-degree calculation at the lower-level window on the side elevation of Mr B’s home.
• The rear extension was deemed to be modest in depth and the officer’s view was that due to the separation between dwellings it would have no overshadowing impact on Mr B’s property. It was noted a hipped roof form was proposed to reduce any potential impact.
• No windows (other than roof lights) were proposed on the flank elevation of the side extension.

20. The report concluded that there would be no amenity harm from this development: it was considered to be acceptable in terms of its impact on the residential amenities of neighbouring occupiers.
21. The application was approved, under delegated powers, and the decision notice granting planning permission for the development was duly issued.

What happened next - the complaint

22. Noting that the application had been approved but that the officer’s report had made no reference to the objection which had been submitted, Mr B’s agent contacted the Council again. The Council said it would follow this up and respond. Two days later the agent sent a further email, making a complaint on behalf of Mr B.
23. The Council issued its response at the first stage of the complaints procedure after 17 working days: The Council’s published response time at stage one is ten working days. The delay was fault.
24. In its response the Council said that when issuing neighbour notifications about planning applications, it asks for responses to go to a central and specific email address, but Mr B’s agent had sent his response direct to the case officer. It said that while receipt of the objection was subsequently acknowledged by the case officer at the time, it was assumed (mistakenly) by that officer that the response had also been sent to the centralised email address, as is usual, and therefore that it would later appear in the electronic case file for assessment. Because this had not happened in this case, at the time the application was considered the objection was not visible to the relevant officer. The Council apologised for this administrative error and acknowledged receipt of objections should be noted within the officer report and any comments suitably addressed: it said it would be reviewing its procedures to minimise the prospects of such fault recurring.
25. The Council went on to say though that having reviewed the case it was clear that the planning application had been considered against relevant policy and guidance relating to the likely impact on Mr B’s residential amenity, and it had been found to be acceptable. The Council view therefore was that Mr B’s comments would not have materially affected the decision. The Council offered to consider reimbursement of Mr B’s reasonable costs in instructing the agent to pursue the complaint and it asked for verification of expenditure relating to this.
26. Mr B was dissatisfied and requested escalation of his complaint to the second stage of the Council’s procedure. He said the Council had not commented on key points of his objection, such as the proposed development being up to 2.5m in excess of that described in the Council’s SPG, and he considered the officer’s description of the height of the extension as modest was inaccurate and based on a judgement based on an observation from the street some 40m away. Mr B also said he felt he had been denied a ‘legal entitlement’ to have his views heard at planning meeting.
27. In its further response to the complaint the Council said it did not agree there was any contravention of planning guidance, noting the officer’s report had referred to the policies relevant to the development and the supporting SPG. That guidance sets out that 'Larger extensions may be allowed under permitted development rights or if they are further from the common boundary but the general principals of protecting neighbour amenity should be taken into account on deciding how large an extension should be’. The Council’s view was that the impact on Mr B’s amenity had been appropriately considered and that appropriate planning justification have been provided in support of the proposed extension. The Council went on to say that it was incorrect to say application had been judged on ‘an observation made from the street to the front from some 40m away’: additional information set out in the scaled drawings and plans, as well as photographs submitted with the application, had been taken into account and the officer report detailed those considerations.
28. Mr B had raised a concern about the structural stability of buildings and land. The Council explained this was a matter for Building Regulations not planning, and the Party Wall Act provides the framework for preventing and resolving any disputes in relation to boundary walls, and excavations near neighbouring buildings: such issues would be civil matters.
29. Mr B requested further escalation of his complaint to the final stage of the Council’s complaints procedure. He remained dissatisfied as he considered the Council had not taken due account of his amenity when considering the planning application. In its response the Council again explained that the site visit to the front of the property was only part of the information considered; that the tree growing on Mr B’s property was not within the control of the planning applicant to remove it; in amenity terms its impact on the street scene was limited; and a condition requiring its protection would be being the remit of planning powers in this case. The Council went on to note Mr B’s reference to the SPG and set out again that the general principles of protecting neighbouring amenity had been applied in the determination of the application and in the Council's view the proposals were acceptable having regards to impact on the amenity of Mr B’s home. The Council again made its offer in respect of reimbursement of costs.

Analysis

30. Case officer reports do not need to include every possible planning consideration, just the main controversial ones. On balance, I am satisfied the Council properly considered the impact of the proposed development on Mr B’s amenity. The Council did not base its decision-making on any incorrect information: it noted for example where the proposal was at variance with the SPG and why it was still deemed to be acceptable in planning terms. While Mr B has concerns about the site visit, such visits are not a legal requirement, and in any event the Council did not base its decision solely on a site visit to the front of the property, but also considered the scaled plans, and photographs. The Council was at fault in that it wrongly stated in the officer’s report that no objections to the application had been received: it has acknowledged this error. With the exception of this omission, I find no fault in the way the delegated decision to approve the application was taken, and the Ombudsman may not challenge the merits of a properly taken decision.
31. There was fault in the slight delay in the Council’s response to Mr B’s complaint. However, that did not cause him a significant injustice.

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Agreed action

32. As noted previously in this statement, the Council had already offered to reimburse Mr B's reasonable costs in instructing the agent to pursue the complaint, before Mr B brought this matter to the Ombudsman. Reimbursement of the fees as offered will provide a reasonable remedy for this complaint
33. The Council has noted that Mr B has not yet provided evidence of those, having submitted only invoices for the agent’s work prior to the date of complaint.
34. I therefore needed only to recommend the following:

• That the Council considers any receipts Mr B submits to it for the relevant period and makes any appropriate payment to him within 4 weeks of the date of such submission.

35. The Council has agreed to this recommendation.

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Final decision

36. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman