Summary: Mr X complained about the Council’s decision to approve his neighbour’s planning application. Mr X said the development will have a significant impact on his property, particularly on the privacy within a home office he has permission to build. There was no fault in the way the Council made its planning decision.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application for development on land next to his home. Mr X complained that:
• the Council took account of inaccurate plans because the street scene provided by the applicant’s architect was incorrectly scaled;
• the Council accepted an inaccurate certificate on the application form, as the applicant did not own the land;
• the Council failed to take account of the impact the new development might have on his approved development for a car port with ancillary office. Mr X said the proposed office should be treated as a habitable room and so should have been afforded significant protection;
• the Conservation Officer’s report includes inaccuracies;
• the Conservation Officer did not visit the site before producing their report.
2. Mr X said the new development will affect a building for which he has been granted planning permission. This building includes a home office, which, because it is close to the new development, will cause a loss of privacy.

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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. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I made enquiries of the Council, took account of its response and shared it with Mr X.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
12. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications. Even if a proposed development is outside a Conservation Area, councils may take account of the impact it will have upon the Conservation Area itself.
13. Where a discrepancy in a plan has not been noticed, the Ombudsman will only criticise a council if the discrepancy would have:
• been obvious to any reasonable planning officer; and
• it would have been material to its consideration (i.e. it made a difference to the outcome).
14. Planning application forms include an ownership certificate relating to the application site and this must be completed by the applicant. The purpose of the certificate is to ensure that the owners of land are aware of the application. The applicant should certify whether they are the sole owner of land within the application site (certificate A).
15. If the applicant is not the sole owner/tenant, they must complete other certificates to show the ownership status of the land, and provide:
• the names and addresses of the other owners/tenants (certificate B);
• the names and addresses of some of the owners/tenants where not all are known to the applicant (certificate C);
• a statement where none of the names and addresses of other owners/tenants are known (certificate D).
16. Applicants must also certify whether the land is part of an agricultural holding.
17. If it is proven that the applicant completed the wrong certificate or provided false or misleading information, they may be found guilty of an offence and the Council may treat the application as invalid. Any individual who is affected may seek judicial review in the High Court – the court can, at its discretion, quash the decision.
18. Councils need to keep records of their decisions, including the background documents they rely on and details, albeit briefly stated, of the reasons for their decision. This information is normally found in case officer reports.
19. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
20. 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.

What happened

21. Mr X’s neighbour made an outline planning application to build a house on land next to his home. The land was behind Mr X’s double garage. The Council approved this application in 2017.
22. In 2020, Mr X was given permission to demolish his double garage and replace it with a car port, with office space in the roof space above. The office had dormer windows facing back towards the neighbour’s land.
23. Later in 2020, the neighbour applied for planning approval to build a house on their land, close to the site where Mr X had permission to build his car port and office.
24. The Council allocated the case to a planning officer to consider. The case officer visited the site and considered the application. The case officer wrote a report setting out their assessment and recommendations, which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours (including Mr X) and other consultees (including the Conservation Officer);
• a summary of planning policy and guidance considered to be relevant;
• an appraisal of the main planning considerations, including the principle of development, and its impact on the Conservation Area, residential amenities, has on amenity, flood risk, tree protection, highway safety and other matters; and
• the officer’s recommendation to approve the application, subject to planning conditions.
25. The case officer made specific reference to Mr X’s concerns, including the impact there would be on his car port/office development. The case officer said that because the principle of development for the house had already been established and the office would not be ‘primary living accommodation’, there were not sufficient grounds for refusal.
26. In response to my enquiries, the Council said:
• The approved drawings were drawn to scale, but the illustrative street scene that Mr X complained was inaccurate, was not relied on to reach its judgement that the new house was acceptable. The plan that the street scene was included on, was not one of the drawings that was listed as approved on the planning decision statement it issued.
• I read the Council’s local validation list that shows the documents it will or may require to consider a planning application. I also checked the government’s national requirements for planning applications. I found no evidence in the local list or the national validation requirements to show the Council was obliged to require a scaled, cross section plan. The Council could have required more detail, if it had been considered necessary. However, the case officer visited the site, and the Council had a site location plan, block plans and elevations. I cannot show it was obliged to seek more information or that if it had, the outcome would have been different.
• The Council said that having reviewed the case again, it thinks it is likely the wrong certificate was completed but it had no conclusive evidence to prove this. It had queried the issue with the applicant’s agent before it made its decision. Though it accepts there may be an application error here, the ownership of the land would not have made a difference to its decision. It said the purpose of the certificates is to ensure owners were notified, and this purpose had been satisfied.
• The office element of Mr X’s approved plan was habitable, but how much weight it should be given is a matter of planning judgement. It had considered the impact on the approved car port/office from the neighbour’s new house and found it acceptable.
• The Council agreed the Conservation Officer was incorrect to assume the car port/office had already been built, but this had not affected its decision. There was no obligation for the Conservation Officer to visit the site. The planning case officer had visited the site and met with Mr X before it approved the neighbour’s most recent application.
27. I gave Mr X an opportunity to comment on the Council’s response to my enquiries. Mr X said:
• The Council’s response lacked details and shows disregard for the planning process.
• The Council did not answer conclusively whether the street scene drawing was drawn to scale.
• There is nothing on the street scene drawing to show it was illustrative.
• The Conservation Officer was not aware the proposed house was higher than existing houses on the lane and had assumed the street scene drawing was drawn to scale.
• The case officer’s report said the ridge height was ‘similar’ to adjacent properties, and this is not correct.
• Where there is a notable difference between proposed and neighbouring buildings, it is accepted architectural practice to require accurate, scaled drawings.
• The Council did not answer conclusively whether the applicant completed the correct ownership certificate.
• The Council did not give due regard to his car port/office development, which will be severely impacted by the new house.
• The case officer’s report does not explicitly consider the impact the development would have on his home, while mentioning others that are not so affected.

My findings

28. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision making process, and if we find it, we decide whether it caused a significant injustice to the complainant.
29. I do not find fault in the way the Council made its planning decision, and my reasons are as follows.
• Before it made its decision, the Council took account of the application form, the plans, comments from neighbours and other consultees, including the Conservation Officer. It was aware of what was being proposed, where Mr X lived and the location of his car port/office proposal. The evidence shows the key planning issues were considered before the decision was made. The Council followed the decision making process we would expect before it granted approval.
• I have seen no evidence to show the Council relied on the street scene drawings. If it had, it could have included them in the approved plans list in its decision statement. It is also clear from the case officer’s report that there were no significant concerns about the impact the new development would have on neighbouring buildings.
• The Council did ask questions of the agent about the ownership certificate but did not feel it had enough evidence to show the application was invalid at the time. It now says it thinks it is possible the wrong certificate was completed, because there could be another landowner (a relative of the applicant) but this makes no difference to its judgement. Even if we were to find clear evidence of fault here, I would not be able to show the outcome would have been different. The case officer’s report shows that Mr X’s concerns were considered but it was not persuaded there was a significant impact on his amenities to justify refusal.
• The Council accepts the Conservation Officer was wrong to describe the car port/office as if it existed when it does not. In my view, the Conservation Officer’s error in the advice given to the planning authority does not amount to fault in the decision making process. It was not a fault by the planning authority, whose officer did visit the site, and I cannot show it had any impact on the outcome of the planning decision. The case officer’s report shows the Council was aware the car port/office had not been built.
• The Council accepted the office element of the car port was a habitable room, but the case officer’s report stated that the office space was not primary living accommodation and so a refusal could not be justified. This is a planning judgement and in the absence of some fault in the process leading up to it, I cannot agree or disagree with it. Having considered the issue, the Council was entitled to make the planning decision it has.
• The case officer visited the site, but the Conservation Officer did not. Site visits are discretionary and so I find no fault.

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Final decision

30. I completed my investigation as there was no fault in the way the Council made its planning decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman