Summary: Mr and Mrs M complain about the Council's decision to approve a planning application for a development next to their home and that it failed to take enforcement action promptly. We have found fault but this did not cause injustice to Mr and Mrs M. The Council has now changed the information it publishes about its planning decisions.

The complaint

1. Mr and Mrs M complain about the Council's decision to approve a planning application for a development next to their home and that it failed to take enforcement action promptly. In particular they complain the Council failed to:
• properly consider the impact of amended plans on their home.
• publish a report showing how objections and consultees responses had been considered.
• visit the site for three months, enabling a breach of planning control to occur.
• involve the local councillor or allow the application to be considered by the planning committee.
2. Mr and Mrs M say as a result the Council lost control of the development, their amenity has been adversely affected, and they have suffered a great deal of stress and upset.

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The Ombudsman’s role and powers

3. 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)
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)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 spoke to Mr M about the complaint and considered the Council’s response to my enquiries.
8. Mr and Mrs M 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

Relevant law and guidance

Planning permission

9. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise.
10. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as reduction in the value of a property. They include issues such as overlooking and privacy. 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. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. The case officer's report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
12. A report should help show a council took proper account of key material planning considerations. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• 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
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Determination by the planning committee

13. The Council’s constitution says all decisions will be delegated to officers except:
• Those about applications made by the Council or its members or officers.
• Where there have been objections from more than 10 households.
• Those about applications that in the opinion of the Director are likely to raise matters which should be referred to the committee.
14. The constitution also allows an elected member to request that a matter be considered by the planning committee if:
• the member has notified the Director in writing within 21 days of the publication of the weekly list; and
• the notification is supported by one or more reasoned material planning considerations.
15. The planning committee chair will then determine whether the application requires a debate by the committee.

Publication of planning decisions

16. Section 7 of the Openness of Local Government Bodies Regulations 2014 (“the 2014 Regulations”) requires a local authority officer to produce a written record of their decision and reasons when deciding on the grant of a permission. The written record should include the date the decision was made, the reasons for the decision and details of alternative options, if any were considered and rejected. We expect councils to provide reasons for their decisions on material issues in sufficient detail to understand the decisions reached.
17. The Council publishes on its website:
• All planning application forms, plans, supporting documents etc. including amendments when submitted.
• Responses from statutory consultees.
• Representations in full when submitted on line; others listed without content when received by other means.
• Decision Notices once made.
• Section 106 agreements where applicable.
18. The Council says case officer reports on applications determined under delegated powers are not routinely published. However, they are available on request.

Planning enforcement

19. Where there has been a breach of planning control, councils may take enforcement action when it is ‘expedient’ to do so. It is for the council to decide whether it is expedient to take action. It may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so it can formally consider the issues.
20. Councils have a range of options for formal planning enforcement action available to them, including:
• planning contravention notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach; and
• stop notices - to prohibit activities without further delay where it is essential to safeguard the public.
21. The Council’s planning enforcement policy says it will “usually” inspect the site within 10 days of an alleged breach being reported, to establish whether a breach of planning control has occurred and what action to take.

What happened

22. In 2019 the Council granted planning permission to a developer to build several houses on land next to Mr and Mrs M’s home. In 2020 the developer made a new application for a larger number of houses. The Council visited the site in October 2020.
23. Mr and Mrs M objected to the application. They said the development was cramped, would lead to overlooking of their property and would be overbearing.
24. The developer submitted amended plans which were published on the Council’s website in November 2020. The new plans had a revised layout which placed some of the houses closer to Mr and Mrs M’s boundary. Mr and Mrs M objected that the development was too close to their boundary, with one property one metre from their boundary at its closest point.

Planning enforcement November 2020 to January 2021

25. Mr M reported a possible planning breach to the Council in late November 2020. He said the developer had started works and was following the plans that were not yet approved, rather than the existing planning permission. He sent the Council photographs showing these works.
26. The Council did not visit the site but it asked the developer to voluntarily stop the works. It then corresponded with Mr M about whether the developer was building in accordance with the existing planning permission.
27. The developer stopped its development works on 4 December 2020 but on 7 December Mr M told the Council works had re-started. The Council did not visit the site. It told Mr M it was preparing to take enforcement action.
28. The Council served the developer with a planning contravention notice on 16 December. The developer stopped the works, submitted further amended plans and on 5 January 2021 responded to the notice.
29. Mr M told the Council that the developer had pegged out the site in accordance with the unapproved plans on 31 December and had re-started works on 4 January 2021, with foundations being filled.
30. The Council visited the site on 7 January 2021. It found the works were a breach of planning control and issued a temporary stop notice.

Consideration of the planning application

31. The planning application had been delegated to a case officer to determine. In early January 2021 the local councillor asked for it to be considered by the planning committee. In a response to Mr M on 7 January, the Council’s chief executive said the application would be considered by the committee.
32. The planning committee chair considered the councillor’s request. She decided it did not meet the criteria for consideration by the committee because it had been received more than 21 days after publication of the weekly list and the reason for the request was that there had been a breach of planning control, but this was not a material planning consideration.
33. The application was considered by a planning case officer. The case officer’s report included:
• a description of the proposal and the site;
• a summary of relevant planning history, noting that the plans had been amended several times reducing the number of dwellings and changing the layout;
• comments from neighbours and other consultees;
• relevant planning policy and guidance; and
• an appraisal of the main planning considerations, including the concerns of objectors.
34. The report assessed the impact on neighbours’ amenity. In relation to Mr and Mrs M’s property it said the closest dwelling would have a ridge height of 6.95 metres and the rear two storey element would be more than 50 metres from their rear elevation. Mr M says it is less than 25 metres from their dwelling. The case officer considered the proposed dwelling would not be unduly overbearing or lead to undue loss of privacy to Mr and Mrs M’s property.
35. The report concluded that the proposal was visually acceptable in terms of siting, design, size and materials, was acceptable in terms of residential amenity and complied with relevant policies and guidance. The case officer approved the application with conditions, including one to use obscured glass to prevent overlooking. The Council published the decision notice on its website.

Mr and Mrs M’s complaint

36. Mr M complained to the Council in February 2021 about:
• The lack of councillor consideration of the application.
• Delay in taking enforcement action.
• A failure to properly consider his and other neighbours’ objections and that one of the plots was only one metre from his boundary with an eaves height of over eight metres.
• A lack of transparency as there was no published document showing how objections had been considered.
37. Mr M considered the Council had allowed the developer to run roughshod over it as it had allowed works to continue, had not sought changes to the layout once the developer had started, had granted approval suddenly without councillor involvement and had not published its report.
38. The Council’s response apologised that the chief executive’s email had not clarified that the request to go to committee was subject to being agreed by the chair. The Council said it had been difficult to determine until January 2021 that the works were a breach of planning control, as the existing planning permission had similar features. It sent Mr M a copy of the case officer’s report.
39. Mr M remained dissatisfied and asked for his complaint to be escalated. The Council’s final response said enforcement action had been taken swiftly once a breach of planning control was established but a site visit should have taken place earlier. The Council had found no basis to restrict the development to fewer houses. Mr and Mrs M complained to the Ombudsman.

My findings

40. I have first considered the Council’s actions in relation to enforcement.
41. When a council receives a complaint about unauthorised development, it has a duty to investigate. If a breach of planning control is found, the council's next duty is to take a view on whether it needs to do something about it or not.
42. The Council’s policy says it will usually visit a site within ten days of a report of a possible breach. It received Mr M’s report on 25 November 2020 but did not visit. However, it asked the developer to voluntarily stop the works and the developer had done so by 4 December. I cannot say that the Council’s decision to not visit the site was fault, as its policy does not require it to so it is entitled to decide not to visit. However, even if there was fault here, I do not consider it caused injustice. This is because, if the Council had visited and asked the developer to stop the works, it would have done this by 4 December so the outcome would have been the same.
43. Mr M advised the Council the works had re-started on 7 December 2020. Although the policy does not require a site visit, my view is the Council should have visited at this stage. It needed more information about the development and the issue was complicated by the existing planning permission. Mr M then reported the site had been pegged out on 31 December, so works were clearly ongoing. The Council issued a planning contravention notice on 16 December, but I can see no reason why a site visit would not have been possible and note the Council’s final complaint response that a visit would have been helpful. I therefore find that it was fault not to visit the site in December 2020.
44. I cannot say for certain what action the Council would have taken after a visit as it may not have found a breach. However, I consider it likely it would have issued a temporary stop notice whilst it considered the planning application.
45. Mr and Mrs M are concerned that the Council only approved the application because works had progressed so far. I have therefore considered how the Council granted permission. It is the role of the planning system, not the Ombudsman, to decide on an application so it is not for me to determine, for example, if there is overlooking or overshadowing. My role is to determine whether there was administrative fault in the way the Council made its decision. Where we find fault, we must decide whether it caused an injustice. In planning cases, this means we must have evidence to show that on the balance of probabilities the outcome of the planning application would have been different.
46. The application was delegated to an officer. Whilst a member requested it go to the committee, there was no fault in the chair’s decision that the request did not meet the criteria for this. It was therefore not fault for the case officer to determine the application.
47. The case officer's report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered (amongst other things) the impact on the amenity of existing properties, including Mr and Mrs M’s property. The report then assessed these matters and concluded the development would not cause significant harm. The officer found there were no planning reasons to justify refusing the application.
48. I have seen no evidence that this decision was influenced by the works that had already taken place. Therefore, on balance I find it unlikely that the officer would have reached a different decision even if the Council had visited the site in December 2020 and issued a stop notice then. I am satisfied that the Council had enough information about the application and properly considered the relevant planning issues when reaching its decision. There was therefore no fault in the way the decision was made, as such I cannot question it.
49. Mr and Mrs M complain the Council has not met its transparency duty. The 2014 Regulations require the Council to publish a planning decision showing the reasons for its decision. The Council publishes the decision notice, plans, consultee responses and objections. It is not required to publish the case officer’s report. However, we expect councils to provide reasons for their decisions on material issues in sufficient detail to understand the decisions reached.
50. When considering planning decisions, the Ombudsman expects to find evidence that the key material planning considerations were taken into account. We also need to know what the Council made of these considerations. We recommend that this information is recorded in a case officer report, which is available on the public file and the Council’s website with the other documents, including the approved plans and the decision.
51. Having reviewed the Council’s decision notice, I do not consider it shows this as it only gives details of the decision made but not the reasons. This is fault as it does not comply with the 2014 Regulations.
52. I do not find this fault caused Mr and Mrs M significant injustice. The Council had published the amended plans, enabling Mr and Mrs M to object, and it gave Mr M a copy of the case officer’s report after he complained.
53. In response to my draft decision, the Council said it would now publish case officers’ reports, containing the assessment of the planning application and reasons for the decision, on its planning website. I welcome this change.

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Final decision

54. There was fault by the Council but this did not cause significant injustice to Mr and Mrs M. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman