Summary: Mr C said the Council was at fault for underestimating the impact on his property of an extension on his neighbour’s house. He also said it wrongly accepted his neighbour’s application to amend a planning application using the wrong legislation. The Council was at fault for accepting an application to amend the plans using the wrong legislation. This caused Mr C injustice as he was put to time and trouble researching the law. However, the Council was not at fault for its consideration of the impact of the extension. The Council has agreed to pay Mr C a sum in recognition of the injustice caused.

The complaint

1. The complainant, Mr C, says the Council was at fault for errors made before, during and after granting planning permission to his neighbour, Mr D, to build a two-storey extension. Specifically, Mr C says:
1. The Council underestimated the impact of the extension on Mr C’s property. He says it is overbearing and overshadows his property.
2. The Council failed to act after he informed it that Mr D’s plans were inaccurate.
3. The Council encouraged and/or allowed Mr D to apply to amend his planning application using s.73 of the Town and Country Planning Act 1990. Mr C carried out his own research and discovered this was not the correct way to proceed. He told the Council. The Council took a month to respond before telling Mr C he was right.
2. Mr C says these failures caused him and his family injustice. He says:
1. the extension to Mr D’s property overshadows his house and has dramatically changed the character of his own property,
2. he has spent many hours researching and writing letters to the Council to put his points across, and
3. Mr D continued building the extension while the s.73 application was pending.
3. He says his faith in the Council and in the planning process has been diminished.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
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 spoke to Mr C. I wrote an enquiry letter to the Council. I considered all the information I had gathered.
7. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Ombudsman’s role

8. It is the role of the planning system, not the Ombudsman, to decide planning applications. The Ombudsman is not an appeal body and our role is to determine whether there has been administrative fault in the way a decision was made.
9. Whenever we find fault, we have to determine whether this fault caused an injustice to the complainant. In relation to a planning decision, the first step in this process is to consider whether any fault made any difference to the outcome.
10. Mr C says Council fault has allowed Mr D to build an overbearing extension which casts his garden and house in shadow. I have to decide whether this was an injustice caused by Council fault. If there was such an injustice, we would recommend a remedy in recognition of that injustice.

The planning system

11. The Government has passed laws and regulations and issued guidance to control planning in England. The general rule, set out in the National Planning Policy Framework, is that permission for planning must always be granted by a local planning authority, unless there are sufficient reasons not to do so.
12. On receipt of an application for planning permission, a planning officer must write a report considering the application and making a recommendation either to grant or refuse permission.
13. Often, the decision to grant planning permission is made by planning officers. However, with complex, large or controversial applications, the decision is often made by a council’s planning committee which is made up of councillors.
14. If an applicant for planning permission disagrees with a council’s decision to refuse permission, they can appeal the decision to the Planning Inspectorate. The Planning Inspectorate will either uphold or overturn the decision.

Section 73, Town and Country Planning Act 1990

15. Section 73 of the Town and Country Planning Act 1990 can be used to amend planning applications in certain circumstances. Primarily, it is used to vary conditions imposed on a planning application rather than the details of the application itself. In this decision, I have referred to these applications as ‘s.73 applications’.
16. In some circumstances, it is not possible to use s.73 to amend an application. If this is the case, it may be necessary for an applicant to make a fresh application for planning permission.

What happened

17. Mr D owns the house next door to Mr C’s house. In late 2020, Mr D applied for permission to extend his house by adding a second storey to an existing one-storey extension which ran along Mr C’s side of his house.
18. The Council notified Mr C of the application. Mr C objected. He said the extension would overshadow his house, be an unacceptable intrusion on his enjoyment of his property and would block his daylight.
19. A planning officer, Officer O, wrote a planning officer’s report in which she said that, in her opinion, any overshadowing was not sufficient to justify refusing planning permission. The Council granted permission and development began.
20. Mr C contacted the Council shortly afterwards and said there were flaws in the approved plans. Officer O initially said she believed the plans were correct.
21. Mr C first formally complained to the Council in March 2021. He said the Council had understated the impact of the development on his property and in particular his front garden. He said the Council had ignored a recommendation by the parish council that permission should be refused and that the approved plans were inaccurate because they misstated the distance between Mr D’s house and the highway. The Council responded saying Officer O’s report had considered the relevant matters.
22. Later that month, Mr C contacted Officer O and pointed out a further error in the approved plans. Officer O checked the plans and realised that Mr C was right. She contacted Mr D and told Mr C that Mr D would be submitting new plans.
23. A few days later, Mr D made a s.73 application to amend his planning permission by replacing the existing plans with revised ones. The Council validated, or accepted, the application.
24. Shortly thereafter, Mr C complained to the Council for a second time about the impact of the development on his property and inconsistencies in the plans.
25. In late April 2021, Mr C wrote to Officer O again. He attached a High Court judgment which, he said, showed Mr D should not have made a s.73 application. Officer O passed this letter to the Council’s legal department.
26. The Council responded to Mr C’s second complaint in early May 2021. It again defended its decision to grant permission. It acknowledged that Mr D had not followed the approved plans. It said Mr D had said this was because of an architect’s error. It said Mr D had submitted a s.73 application to have amended plans approved. It said it would consider this application on its merits.
27. Mr C made a stage 3 complaint in mid-May 2021. He repeated his views about the impact of the development on his property and said, again, that Mr D was not building in accordance with the approved plans.
28. In its response, the Council repeated its view that the impact on Mr C’s property fell within acceptable limits. It acknowledged that Mr D had originally submitted inaccurate plans but said the inaccuracies were relatively minor and there had been no reason to withhold planning permission. It said it was seeking legal advice about Mr D’s use of a s.73 application.
29. In late May 2021, the Council’s legal department told Officer O that Mr C was right: Mr D should not have used s.73 to submit amended plans. Officer O contacted Mr D and asked him to withdraw his s.73 application and make a fresh planning application for the extension with the second set of plans attached.
30. Mr D made a fresh application. While this application was pending, he continued to build the extension.
31. Officer O wrote a second officer’s report which recommended a grant of permission on the same grounds as before.
32. At this point, in June 2021, Mr C complained to the Ombudsman. He said the extension was overbearing and the Council should not have allowed Mr D to use s.73 to amend his first application.
33. The Council referred Mr D’s second application to its planning committee. The committee considered this second application in July 2021. The committee refused planning permission saying the impact on Mr C’s property was unacceptable. Mr C informed the Ombudsman and said this meant that the Council’s errors had allowed an unlawful extension to be built.
34. However, Mr D then appealed the planning committee’s decision to refuse his second application to the Planning Inspectorate. In December 2021, the Planning Inspectorate upheld his appeal thereby granting him permission for the extension.

Was there fault causing injustice?

Council underestimated impact of extension

35. The National Planning Policy Framework says councils should grant permission unless there is sufficient reason to refuse. Each decision is a matter of professional judgment, made on its merits.
36. I have considered whether there was administrative fault in the way the Council considered the applications made in this case.
37. Officer O’s reports considered the first and second applications against relevant local and national planning policies. She set out the consultees' responses and summarised the objections that had been received.
38. Officer O also considered Mr C’s objections to both sets of plans. The Council was aware, before granting permission, that Mr C thought both proposals would cause an unacceptable impact on his property. Officer O disagreed. There were, in her view, insufficient planning reasons to justify refusing either application.
39. Officer C followed the correct process in writing her reports. I do not therefore find the Council at fault for any administrative error. I cannot find fault because Mr C disagrees with Officer O’s judgment
40. It is true that the Council approved the first application but refused the second. It does not follow that the Council was at fault for either decision. A council committee can take a different view to a council planning officer. Each of them can reach a different view as to whether permission should be granted without the Council being at fault in either case. These are complex decisions involving professional and personal judgment.

Council’s failure to act after warning that plans were inaccurate

41. The Council did not initially accept that there were any material discrepancies in Mr D’s plans. It had no duty to check the plans at that stage. However, as building continued, it investigated Mr C’s concerns. When it became clear that there were errors, the Council took action. Therefore, I do not find fault.
42. Mr C says Mr D has built a structure that is larger than the permission allowed. I cannot find fault on that basis. If Mr D has built a structure that does not agree with the approved plans, that is not due to Council fault. Mr C can ask the Council’s planning enforcement team to consider enforcement action.

Use of s.73 application

43. The Council was at fault for validating the s.73 application as s.73 should not have been used in this case. However, when the Council’s legal department confirmed the mistake, the Council immediately informed Mr D and asked him to withdraw the s.73 application and submit a fresh planning application.
44. Mr C says this fault has caused him injustice because Mr D continued building his extension while he had no planning permission. Mr C was particularly concerned about this after the Council’s planning committee refused permission for the second application. He believed that the committee had shown that Mr D’s extension caused an unacceptable impact on his property.
45. However, in December 2021, the Planning Inspectorate overturned the committee’s decision saying that there was no unacceptable impact on Mr C’s property caused by either set of plans. I cannot therefore say that the Council’s fault in validating the s73 application caused Mr C the injustice he believes it did. Ultimately, the second application has been approved. Therefore, the outcome has not been changed by Council fault.
46. However, I have accepted that Mr C took time and trouble in researching the law around s.73 applications which he would not have had to do if the Council had recognised immediately that this was not the correct way to proceed. I have therefore recommended that the Council should pay Mr C £100 in recognition of that injustice. The Council has accepted this recommendation.
47. Mr C has also said a planning officer should have made a site visit before writing her report. There is no requirement for an officer to visit when preparing an officer’s report. Therefore, I do not find fault.

Agreed action

48. The Council has agreed that, within four weeks of the date of this decision, it will:
1. Apologise to Mr C in writing for the time and trouble he was put to and pay him £100,
2. Make sure that officers are aware of the limitations on the use of s.73 Town and Country Planning Act, and
3. Write to the Ombudsman to confirm that it has complied with a) and b) above.

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Final decision

49. I have decided the Council was at fault as set out above. I have made recommendations to remedy that fault which the Council has accepted. I have closed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman