Summary: Mr X and Ms Y say the Council decided a planning application without following appropriate procedures, policy and practice. There was fault by the Council because it validated the planning application without ensuring the development was within the extent of the declared application site. The identified fault did not cause the complainants significant injustice to warrant further pursuit of the complaint by the Ombudsman.

The complaint

1. I refer to the complainants here as Mr X and Ms Y. They say the Council decided a planning application without following appropriate procedures, policy and practice. They say:
• The application plans were not consistent with each other. A block plan showed the proposed development extended beyond the red line boundary on the site location plan.
• The officer’s report incorrectly described the site.
• There was an inadequate assessment of the planning history of the site as the planning officer only referred to one application in the history. There was also no reference to applications for certificates of lawful use for residential use of an old sports area.
• The officer’s report incorrectly calculated the density of the development.
• The officer’s report inadequately covers the issue of residential amenity. No consideration was given to loss of outlook.
• The issue of parking was not properly considered in the officer’s report.
• A new acoustic fence is outside the red line boundary shown on the site location plan.
• Issues raised by residents were not fully identified or understood and so were not fully assessed.
2. Ms Y says the development has created an oppressive outlook from her flat. She says valued trees have been cut down and there is not enough space to replace them. She feels upset and badly let down because she cannot see that the planning officer considered the impact of the development on her outlook. She cannot be sure the right decision was made and the detrimental impact on residents was avoided.
3. Ms Y wants the Council to apologise to all residents. She wants the Council to compensate residents. Ms Y also wants the Council to review its complaints process.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6))

5. 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

6. I considered the complaint and background information provided by Ms Y and the Council. I discussed the complaint with Ms Y by telephone. I sent a draft decision statement to the complainants and the Council. I considered Ms Y’s comments on it.

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What I found

7. The Council received a planning application which proposed erection of a block of flats with associated parking, cycle and refuse storage.
8. The application was determined through delegated powers. The planning case officer summarised the objections the Council received from Mr X and Ms Y and others.
9. For the purposes of this investigation it is not necessary to set out in great detail the facts of the case. I do not intend to set out Mr X and Ms Y’s objections in this statement for reasons of brevity and anonymity. They are of course known to Mr X, Ms Y, and the Council.
10. I note the delegated report included information on the site, the proposal, the consultation process that had been conducted, the representations that had been received and an assessment of the planning issues.
11. The officer said the main issues which would be assessed were the principle of development; highway and parking issues; biodiversity and sustainability issues; development density; and residential amenity.
12. I do not find fault with the Council’s assessment of the planning application.
13. Planning authorities are required to have regard to all material considerations. What amounts to a material consideration is a question of law. That is for the courts to adjudicate upon. The weight to be given to such material considerations – and the part any particular material consideration should play in a decision-making process – is a question of judgement and is a matter entirely for the local planning authority.
14. So, for instance when Ms Y says no consideration was given by the officer to her outlook, I do not find fault because the officer noted the issue of outlook in the report. Ms Y said her outlook would be affected by the development. The applicant, by way of rebuttal stated the matter of ‘outlook’ amounted to a loss of a view and was not a material planning consideration.
15. The planning officer did not explicitly set out a view on the matter of outlook. Rather, the officer said:

“I appreciate that local residents may have got used to many years of a large empty space and that subsequently, the proposed development might cause concern for that loss of open land to be replaced by a block of flats. However, the development has been designed with acceptable spacing between both existing and proposed dwellings, no issues of privacy or overlooking would be engendered by approving this proposal, and any potential erosion of residential amenity would be minor.”

16. It can be seen that the officer considered there was sufficient distance between the proposed development and Ms Y’s home to the effect that the development’s impact on her amenity was acceptable in planning terms. While it would have been helpful had the officer been explicit in setting out his understanding of the term outlook or provided a point by point analysis of all the representations made by objectors, there is no statutory requirement that a planning officer should do so.
17. On another matter such as density, Ms Y criticises the officer’s calculation of the density of the site. But whether the officer was right or wrong is not a matter for the Ombudsman to now decide. That is a matter for the courts by way of judicial review. What matters in terms of an investigation by the Ombudsman is that the officer was aware of the issue of density. The officer then set out his judgement on the issue. So, it can be seen that the issue was assessed.
18. There are other areas noted above where Ms Y criticises the planning officer’s report. Our role is not to provide answers to each and every criticism a complainant may have about a council. Instead it is to consider allegations about what the authority has done wrong and whether the alleged fault has caused a significant injustice to the complainant.
19. In terms of the report itself, there is an established principle in case law that planning reports are not subjected to the same critical explanation or examination that might be appropriate for the interpretation of a statute. The judicial precedent was set in the case of (R (Zurich Assurance Limited Trading as Threadneedle Property Investments v North Lincolnshire Council [2012] EWHC 3708 (Admin)).
20. There, the court held that when challenged, a report that has been prepared by an officer is not to be subjected to the same critical explanation or examination that might be appropriate of a statute. The court said what is required is a fair reading of the report as a whole.
21. I have read the planning report as a whole. While I note Ms Y’s criticisms of it, I am satisfied the report set out the material considerations that applied to the application and provided reasoned justification for the judgement reached by the officer. I am satisfied the Council took account of the material considerations including the proposal’s impact on Mr Y’s amenity.
22. There was fault by the Council because it did not notice part of the proposed development was outside the red line boundary on the submitted plans. This was a gross error that should have been spotted by officers. However, this fault did not cause Mr X and Ms Y a personal injustice. I note Ms Y’s reference to a loss of confidence in the decision and the Council’s planning process. But I do not find this is an injustice that is significant or one that warrants further pursuit of the matter by the Ombudsman.
23. I note Ms Y is critical of the Council’s handling of their complaint and, in particular, the final stage complaint response they received. As I did not find significant fault or injustice on the core matters of the complaint, I did not look at the Council’s handling of the complaint.

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Final decision

24. There was fault by the Council which did not cause significant injustice to Mr X and Ms Y to warrant further pursuit of the complaint by, or a remedy from, the Ombudsman.

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Investigator's decision on behalf of the Ombudsman