Summary: Mr and Mrs X complain about the Council’s handling of a planning application for a new backland development on a site close to their home. The Ombudsman has not upheld Mr and Mrs X’s complaint. This is because we find that there was no fault with the action of the Council.

The complaint

1. The complainants, who I shall refer to here as Mr and Mrs X, complain about the Council’s handling of a planning application for a new backland development on a site close to their home. They say the Council has allowed trees to be removed from the site and that the new development will overshadow the property.
2. More specifically, they complain the Council:
1. was biased towards the developer and against objectors;
2. failed to communicate correctly and completely with parties involved;
3. made its decision using its delegated powers and failed to be transparent when doing so;
4. failed to take into account the impact of the development on the complainants’ property;
5. failed to apply its own guidance on backland developments;
6. went against the Tree Officer’s decision not to support the application; and,
7. delayed in dealing with their complaints.
3. They say the development will cause a loss of amenity to their house and garden from an overshadowing, overbearing and ‘ugly’ residence. They are concerned the development will cause a loss of greenery as well as wildlife and habitat.

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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. 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: any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
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 with Mr and Mrs X about their complaint. I considered the information provided by them, which included relevant documents from the Council concerning their complaint, its decision on the planning application and its Case Officer’s Report.
8. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

What should have happened

Planning permission

9. The Town and Country Planning Act 1990 gives local authorities the power to decide if planning applications should be approved, refused, or approved subject to planning conditions.
10. Councils must consider applications on their planning merits and make decisions in line with relevant policies in their development plans unless material planning considerations suggest otherwise. Material considerations concern the use and development of land in the public interest, and not private matters such as the applicant’s behaviour or house prices. Material considerations include issues such as overlooking, previous appeal decisions, layout and density of the building, and traffic generation.
11. 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.

12. Planning policies and material planning considerations may pull in different directions, for example, supporting new housing and protecting existing residential amenities. While councils must take account of relevant policies and material planning issues, they may give competing considerations different weight. In practice, this means councils may grant planning permission for developments that do not comply with all relevant planning policies.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. The courts have made it clear that, the fact there was a misrepresentation by a planning applicant or an error on an application plan, is not necessarily a material planning consideration. 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
• been material to its consideration (i.e., it made a difference to the outcome).

What happened

15. A few years ago, Mr and Mrs X’s neighbour applied to the Council for planning permission to build a two-storey property with a garden outbuilding. The Council sent letters of notification to neighbouring properties.
16. A year later, Mr and Mrs X’s neighbour sent the Council amended plans to vary the original application. The Council publicised the amendments.
17. The following month, the Council gave Mr and Mrs X’s neighbour planning permission.
18. The Council’s website included the decision notice, a case officer’s report and the application plans. The case officer report included:

• a description of the proposal and site;
• a summary of the changes made during the course of the application. The case officer said the amendments would significantly reduce the visual impact of the development and reduce the impact on trees;
• comments from neighbours and other consultees;
• a summary of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on amenity and trees and the fact it was a backland development; and,
• the officer’s recommendation to approve the application, subject to planning conditions.

19. Mr and Mrs X complained to the Council about the development and the Council’s handling of it.
20. Mr and Mrs X then complained to the Ombudsman when they were not happy with the Council’s final response.

Analysis

21. Mr and Mrs X complain about the Council’s handling of a planning application for a new backland development on a site close to their home.
22. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault in the decision making process causing a significant injustice to the individual complainant. With this in mind, I have considered Mr and Mrs X’s complaint and find the following:
23. Mr and Mrs X complain the Council’s decision was biased towards the developer and against objectors (part a of the complaint).
24. In its stage two complaint response, the Council said: its Case Officer had read and considered all matters contained in the objections received.
25. The Case Officer’s report shows he considered the objections received by neighbours and consultees who objected, including the Tree Officer. The report shows the Case Officer fully considered in detail the issues Mr and Mrs X complained of, particularly around overlooking, loss of privacy, loss of trees and the application of the Council’s backland development policy. The Case Officer has given clear reasons why he recommended planning permission be given to the amended plans. The Case Officer was satisfied the amendments would significantly reduce the visual impact of the development and reduce the impact on trees. This was a recommendation the Case Officer was entitled to make. Without fault in the how this decision was made, I cannot question its content. I do not find the Council at fault here.
26. More specifically, Mr and Mrs X complain about:

• the Council’s consideration of the impact of the development on their property (part c). They complain there was no site visit to neighbouring properties and there were inaccuracies with certain measurements in the revised plans. However, as explained in the Council’s stage two complaint response, such site visits are not compulsory. In this case, the Council confirmed the Case Officer had visited the site itself and decided visits to neighbouring properties were not necessary. I do not find the Council at fault here. It also confirmed in its stage two complaint response that the factual errors in the application would not affect the outcome of the decision. In line with paragraph 14 above, I do not find fault in the Council’s decision making as the factual errors were not material to its decision;
• the Council’s consideration of its own guidance on backland developments (part e). In its stage two complaint response, the Council explained its officer has not ignored these guidelines, rather they have had to evaluate the weight to be given to them in the context of the National Planning Policy Framework 2019. Based on the Case Officer’s report, I find the report provides clear reasons why he has decided the proposed development complies with this guidance. The report finds the development was not expected to have a significant adverse impact on the key considerations of local character, amenity space, green infrastructure and biodiversity. This is a decision the Council was entitled to make. I appreciated Mr and Mrs X disagree with the Council’s decision, but this is not evidence of fault; and,
• the Council’s departure from the Tree Officer’s decision not to support the application (part f). In its stage two complaint response, the Council said it was satisfied the Case Officer’s report sufficiently analysed the loss of the trees in detail and explained the reasoning for his decision. The Case Officer’s report sets out the Tree Officer’s objections. The Case Officer explains why he considered the proposed tree removal and replanting plans were acceptable. He specified the conditions he considered were appropriate to make sure the development was acceptable in planning terms and address the concerns raised by the Tree Officer. I, therefore, do not find fault in how the Council reached this decision.

27. Mr and Mrs X complain the Council failed to communicate correctly and completely with parties involved (part b). They say the Council did not tell them a decision on the application had been made. I do not find the Council at fault here. The Council has a duty to send decision notices in writing to the applicant; no similar duty arises to inform those who objected. In any case, Mr and Mrs X were able to access the decision online soon after it was made meaning no injustice arose from this.
28. Mr and Mrs X complain the Council made its decision using its delegated powers and failed to be transparent when doing so (part c). In its stage two complaint response, the Council explained a Councillor had made a ‘call in’ request, which, under the terms of the Council’s Constitution, would have meant its planning committee would have to decide on the application. However, after learning of the amendments to the proposed development, the Councillor discussed these with the Case Officer and withdrew the ‘call in’ request. The Council explained this meant the application no longer needed to go before the planning committee and a Planning Officer could make a decision using their delegated powers. Councils delegate most planning decisions to their officers in this way. I do not find the Council at fault here. It has explained the reasons why a decision by its planning committee was no longer necessary.
29. Finally, I have considered Mr and Mrs X’s complaint the Council delayed in dealing with their complaints. Given the limited injustice stemming from these concerns, I find a detailed response cannot be justified (part g of the complaint).

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Final decision

30. I have completed my investigation.
31. I do not uphold Mr and Mrs X’s complaint because there was no fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman