Summary: Ms X complained about the Council’s handling of a planning application for development near her home. We found the Council was at fault and it agreed to apologise for the avoidable distress caused to Ms X. We did not find the fault affected the Council’s decision to grant the development planning permission.

The complaint

1. Ms X complained about the Council’s handling of a planning application for development near her home because it:

• failed to ensure the application included the correct ownership certificate;
• formally accepted the application despite omissions and inaccuracies in the documents;
• failed to consider all her representations;
• was biased towards the applicant and predetermined the application; and
• placed an unenforceable condition on the planning permission.

2. Ms X said the Council’s failure to uphold the law by accepting and then processing an inadequate planning application put her at an unfair disadvantage. And the Council’s bias denied her a fair hearing. Ms X said if the Council had acted lawfully it would have reached a different decision and refused planning permission for the development. Ms X said what happened caused her much distress and anxiety and put her to much time and trouble. The development had also damaged her property.
3. Ms X wanted the development removed from her property and the damage caused either repaired or a payment made to secure necessary repairs. Ms X also wanted the Council to apologise for its improper and unfair actions and pay the costs she had incurred in protecting her property.

The Ombudsman’s role and powers

4. 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)

5. 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)
6. 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

7. I:

• considered Ms X’s written complaint and supporting papers;
• considered information about the development available on the Council’s website; and
• asked for and considered the Council’s comments and supporting information about the complaint;
• shared the Council’s comments and supporting information with Ms X; and
• shared a draft of this statement with Ms X and the Council and considered any comments received before making a final decision.

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What I found

Introduction

8. I had to consider whether in processing the planning application the Council acted with fault. And, if there was evidence of fault, whether that caused Ms X injustice, including whether any fault was likely to have affected the Council’s planning decision. I carefully read and took account of all Ms X’s comments and papers but did not find it necessary to, and this statement does not, address every point raised in the complaint papers. My focus was on the five issues identified in paragraph 1 of this statement.

The ownership certificate

Background

9. People may apply for planning permission to develop land they do not own. However, the law says such applicants must give the landowner notice of the planning application. The law also says applicants must provide a signed ownership certificate with their planning application. There are different ownership certificates depending on whether the applicant is the owner of the land. And, where they are not the owner, the ownership certificate will reflect this and confirm the owner has had notice of the application. If the ownership certificate is wrong, any subsequent planning permission could be challenged in the courts, which have the power to quash the permission.
10. Here, the applicant provided ‘Certificate A'. Certificate A applies where the planning applicant is the owner of the development site. The Council validated (formally accepted) the application and started to process it, including publicising it so people could comment on the development. Ms X, responded, objecting to the development, and telling the Council another member of the applicant’s family was also an owner of the development site.
11. The Council said it normally asks the applicant for more information if someone challenges an ownership certificate. And, where it is clear the applicant has sent the wrong certificate, it will ask them to put this right including, if necessary, giving notice to an owner. Here, the applicant, seeing Ms X’s comments, contacted the Council and confirmed there was another family member that was an owner of the site. The applicant offered to provide a new certificate. The Council ’s planning officer sought advice about dealing with the situation but, before resolving the matter, the application was determined.
12. In later responding to Ms X, the Council accepted there was a ‘technical irregularity’ with the ownership certificate but said its decision was lawful. Ms X said the Council’s acceptance of an ‘irregularity’ confirmed it acted unlawfully in processing the application and had issued an invalid planning permission.

Consideration

13. The Council was entitled to accept Certificate A ‘at face value’ and so validate and then process the application. It was after it had taken these steps that Ms X put it on notice that Certificate A might not be correct. The Council ought reasonably have responded to the applicant’s offer and secured a new certificate before deciding the application. It did not. I therefore found fault here.
14. It is for the courts to determine whether a planning permission is invalid and if it should be quashed. Here, no one applied to the courts to quash the planning permission. It therefore exists and a substantial part of the development is now built. While recognising Ms X’s concerns, the ‘irregularity’ with the ownership certificate did not prevent her from making representations about the development. I therefore did not find the ‘irregularity’ caused Ms X any direct and significant personal injustice.

Omissions and inaccuracies in the application documents

Background

15. The law sets out the information needed for a valid planning application, which varies depending on the proposed development. In this case, in summary, a completed application form, an ownership certificate, and the correct planning fee were necessary. The application also needed a plan identifying the development site and any other plans, drawings and information necessary to describe the development. The law says application plans and drawings must be drawn to an identified scale and plans must show the direction ‘North’.
16. A retrospective planning application is made after development has started without the necessary planning permission. Planning application forms include a question asking whether the development has started. The Council publishes information on its website about retrospective planning applications. It says applicants should include the word ‘retrospective’ in describing their development if they make such an application. The Council also asks applicants to provide ‘as was’, ‘as is’ and (if the development is part complete) ‘as proposed’ plans with retrospective applications.
17. In this case, the development had started when the Council received the planning application. The application form, in response to the questions about whether the development had started said ‘yes’ but it was not complete. The application’s description of the development did not include the word ‘retrospective’. The application plans included a scale and showed ‘North’. One plan showed the ‘existing’ site conditions and another the ‘proposed’ development. The Council uploaded these plans to its website and described them as ‘existing various’ and ‘proposed various’ respectively. The Council accepted the application.
18. While considering the application, the applicant sent the Council a drawing (‘the Drawing’). The Drawing, while having no scale, showed measured heights.
19. Ms X found the application plans incomplete, inaccurate and unclear and, when objecting to the development, said the plans and the Drawing were invalid. Ms X also said the Council had accepted the application when it did not comply with its published guidance for retrospective applications. In response, the Council pointed to the plans having a scale. It also said the ‘proposed various’ plan provided all the information needed to assess the impact of the development, including on neighbours’ living conditions. The Council accepted the Drawing did not meet the relevant legal requirements. However, it said it did not need the Drawing to properly assess the development but recognised it would have been helpful if it had made this clear in processing the application.

Consideration

20. While I recognise Ms X’s concerns about the contents of the application plans, they did meet the relevant legal requirements (see paragraph 15). They were not compliant with the Council’s published information for plans supporting a retrospective application. And the written description of the development in the application form did not include ‘retrospective’. However, the Council was satisfied the submitted information was sufficient for it to assess the development. It was therefore entitled to accept the application and I found no fault here.
21. The Council recognised the Drawing did not meet relevant legal requirements. I agree. I carefully considered all the application plans and the Drawing with the Council officer’s assessment of the development. I saw no evidence to suggest the Drawing had any substantive effect on the Council’s consideration of the application and its decision to grant the development planning permission.
22. Ms X could see the development site from her home and sent representations to the Council about the development. I did not therefore find omitting ‘retrospective’ in describing the development caused Ms X any direct and significant personal injustice.

Ms X’s representations about the development

Background

23. Councils must consider each application on its own merits. They must also make their planning decisions in line with relevant policies in their development plans unless material planning considerations indicate otherwise. Material considerations concern the use and development of land in the public interest and not to private considerations. Material considerations include issues such as overlooking, traffic generation and noise. Examples of private considerations are the applicant’s behaviour, legal easements on land, and changes to house prices. Whether a planning consideration is material in a specific case will vary depending on the development proposed and site-specific conditions.
24. A council planning officer will often prepare a report assessing development proposals against relevant planning policies and other material planning considerations. Planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities. The officer will therefore balance and weigh the issues and reach a recommendation to grant or refuse planning permission.
25. A senior council officer will usually consider planning officers’ reports and decide most applications using powers given to them by their council. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application. So, the senior officer may reach a different view to the planning officer and does not have to agree their recommendation
26. Here, Ms X made four separate representations to the Council making 11 key points about the application and proposed development. A Council planning officer prepared a report assessing the development (‘the Report’). Ms X said the Report wrongly referred to ‘one’ representation and failed to address all her 11 points and so its decision was unlawful.
27. The Council said it had considered the key material planning consideration, privacy and overlooking, raised by Ms X. But it accepted the Report did not address all Ms X’s representations. The Council said several of Ms X’s concerns were not material planning considerations or, therefore, relevant to its decision making. The Council said its decision making would have been more transparent if it had addressed all Ms X’s comments in the Report and explained why it did find them relevant. The Council recognised such an approach would have allowed Ms X to understand how it had taken account of her comments. The Council therefore upheld this part of Ms X’s complaint but confirmed that such an approach would not have changed its planning decision.

Consideration

28. The Report expressly included Ms X’s comments about privacy and overlooking and addressed human rights legislation. Ms X also commented about the ownership certificate, the application plans, and the Drawing. I considered these points at paragraphs 13, 14 and 20 to 22 of this statement.
29. A further representation from Ms X concerned land stability. The Council had confirmed this could be a material planning consideration, but it was not relevant to the development near Ms X’s home. There were differences in ground levels between the development site and nearby land, including Ms X’s property. However, differing ground levels and sloping land affect many applications. Here, I saw no evidence, for example, historic mining or quarrying on the site and the surrounding area, to suggest land stability was a material issue.
30. Of Ms X’s remaining five representations, the Council said:

• two concerned legislation that did not apply to the application;
• two concerned matters most suitably addressed under separate building control legislation; and
• compliance with party wall legislation was a private legal matter between landowners.

The Council’s views on these five issues have merit.

31. Overall, I find the Council’s conclusions on this part of Ms X’s complaint, which are summarised at paragraph 27, have merit and are sustainable on planning grounds. The Report could have been clearer, and this would have avoided any distress to Ms X arising from not seeing all her representations addressed. However, while there is some fault causing injustice here, I did not find the absence of all Ms X’s representations from the Report affected the Council’s planning decision.

Bias and predetermination

Background

32. A senior council planning officer will decide most planning applications using powers given to them by their council. But each council has its own arrangements for deciding which applications must and or may be decided by councillors at a planning committee.
33. The Council has a ‘site review meeting protocol’. The protocol defines ‘major’ applications, which its planning committee decides. The protocol also deals with applications that might go to the committee. It says officers will contact relevant ward councillors where they are recommending the grant of planning permission and valid planning objections exist. The ward councillors then have five days to respond and may, ‘in exceptional circumstances’, ask for a ‘site review meeting’. The meeting is to consider whether officers or councillors should determine the application. While COVID-19 restrictions were in place, the Council replaced in person site review meetings with online ‘virtual’ meetings.
34. Here, the application was not for ‘major’ development and was received and determined while COVID-19 restrictions were in place. A Council planning officer emailed three ward councillors about the application saying officers recommended approval and there were material planning objections. The email referred to the emergency procedures in place due to COVID-19 and asked the councillors if they had any comments on the Report. Only one councillor replied. The councillor’s reply came about 10 minutes after the officer’s email. The councillor said they had “no objection”.
35. Ms X said it was obvious the councillor had not properly considered the Report and application information before replying. Ms X said the quick response showed bias and predetermination and the Council had missed a further opportunity to consider her representations.

Consideration

36. I recognise the councillor replied quickly. However, the councillor was not deciding the application. Rather, the officer’s email sought views on whether any ward councillor considered the application should referred to the planning committee. That query could be addressed quickly on a reading of the Report. I found no evidence of bias or predetermination here.

The unenforceable planning conditions

Background

37. Ms X pointed to an error in a condition on the planning permission. The condition wrongly referred to a ‘road’ in identifying boundary changes aimed at protecting residential amenities. Ms X said not being able to enforce the condition would badly affect her privacy.
38. The Council accepted the condition wrongly named a road but said it also identified the location for the new boundary treatment using ‘directions’. The Council said the intention of the condition and the position of the required boundary treatment would be ‘clear to any reasonable person’. The Council considered the condition was enforceable.

Consideration

39. It is unfortunate the condition wrongly names a road. However, that error has not caused Ms X direct and significant personal injustice and may never do so. It is only if the applicant fails to comply with the condition and the Council tries, unsuccessfully, to enforce it, that Ms X’s privacy might be affected. Until then, any consequences of wrongly naming the road remain speculative. I therefore could not now find there was fault causing injustice.

Conclusion

40. I have currently identified fault (see paragraphs 13 and 31) in how the Council processed the application. The Council partially upheld Ms X’s complaint recognising its decision making could have been more transparent if the Report had addressed all her representations. However, the Council did not apologise to Ms X for this lack of transparency, although it did apologise for its delayed response to her complaint. I therefore recommended the Council apologise to Ms X for the avoidable distress caused by it not reflecting all her representations in the Report.
41. I saw no evidence to suggest the Council would likely have reached a different planning decision if the fault I identified had not taken place. I did not therefore find Ms X had the greater injustice of living near a development that would not have received planning permission if such fault had not taken place.
42. The Council had already identified suitable steps to avoid similar problems when handling planning applications. These steps included staff training on dealing with applications and representations and for drafting planning conditions. The Council was also taking steps to reduce delays in its complaints handling. I therefore found no need now to make recommendations for service improvements.

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Agreed action

43. The Council agreed to send Ms X a written apology for the avoidable distress caused by its lack of transparency in dealing with her representations in the Report on the application. The Council also agreed to send the apology within 20 working days of this final decision statement and to copy it to the Ombudsman.

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Final decision

44. I completed my investigation finding fault causing injustice in the Council’s handling of Ms X’s representations about the development.

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Investigator's decision on behalf of the Ombudsman