Summary: Mr C complained the Council wrongly approved his neighbour planning application and failed to take appropriate enforcement action. He also said a Planning Committee member was biased towards the applicant. We found the Council failed to give proper reasons for the planning decision it made. It also caused delays in its enforcement investigation. The Council agreed to apologise and make payment to Mr C for the injustice it caused him. It has already taken action to prevent similar failings in the future.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained about the Council’s handling of his neighbour’s planning application for a first-floor side and rear extension. He said:
• its decision to approve the application was wrong as the Planning Officer recommended refusal and previous applications for a smaller development had been refused;
• a Planning Committee member was biased and failed to disclose an interest to the Planning Committee; and
• it failed to take appropriate enforcement action for breaches of conditions when the development was being build and caused delays.
2. As a result, Mr C says the extension is extremely overbearing and unsightly and caused him significant distress.

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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 an organisation’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. If we are satisfied with an organisation’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. As part of my investigation, I have:
• considered Mr C’s complaint and the Council’s responses;
• discussed the complaint with Mr C; and
• reviewed the relevant law, guidance, planning documents and the Planning Committee meeting.
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

What happened

8. Mr C’s neighbour applied for planning permission for a first-floor side and rear extension. The proposed side extension would run along the rear boundary of Mr C’s garden and would measure 13.2 metres in depth and have a height of 7.5 metres at its highest point.
9. The application was referred to the Council’s Planning Committee for determination because the applicant was a Councillor and member of the Planning Committee.
10. Officers recommended that planning permission be refused. The officer’s report explains that the Council had refused applications for similar smaller extensions on three previous occasions, in 2007, 2008 and 2009. The applicant had appealed the Council’s decision to refuse permission in 2007 but the Planning Inspector agreed that planning permission should not be granted. On each occasion, it was decided that the proposal would have an overbearing impact on Mr C’s house and garden because of the short length of the garden of his house, and the height and mass of the extension and its close proximity to the boundary. Officers considered the applicant had not overcome the reasons for refusing the previous planning applications.
11. Against officer advice, the Planning Committee decided permission should be granted. The reasons it gave for its decision were that:

“the application does not harm the amenity of neighbouring properties, the Inspector’s decision on the earlier appeal was incorrect as the proposal has no greater detrimental impact on the residents of neighbouring properties and neighbours have reduced their own amenity by their extensions.”

Mr C’s complaint

12. Mr C complained to the Council about its decision and about the conduct of the applicant and the Chair of the Planning Committee. Mr C believes planning permission was granted because the applicant is a member of the Planning Committee and friends with other members of the Committee, and in particular the Chair.
13. Mr C also complained that the applicant was not complying with the conditions of the planning permission. He said that the building works were being carried out outside of the permitted hours, the applicant had not addressed a condition relating to a protected tree, and the bricks did not match those of the existing building.

The Council’s responses

14. In November 2020 the Council responded to Mr C’s planning decision complaint. It apologised for the delay in responding and said it had not found fault in its planning process. It explained its Planning Committee had properly considered:
• the application and its impact on neighbouring amenity, including the relevant planning history and the Planning Inspectors previous refusal of a similar development;
• Mr C’s and other neighbours objections, including the Planning Officers recommendation for refusal.
15. It told Mr C it was entitled to reach a different view to its, and the Planning Inspectors earlier decisions, and members of the Committee had given reasons for their decision.
16. In Spring 2021 the Council’s Monitoring Officer told Mr C he had not found concerns the applicant Councillor breached the Code of Conduct. He explained the Councillor had properly declared his interest and had not acted in an official capacity in relation to his own planning application.
17. In summer 2021 the Council shared the outcome of its independent review of Mr C’s, and other neighbours’, complaint about the conduct of its Planning Committee Chair and the applicant’s relationship with members of the Committee. It found there had been no breach of the Code of Conduct and gave reasons for its findings.
18. In early 2022 the Council responded to Mr C’s planning enforcement concerns. It explained:
• it had sent reminders to Mr C’s neighbour regarding working hours for the development;
• it acknowledged the bricks used in the development was slightly different, but did not find it proportionate to take any action; and
• any concerns about the quality of the building works were for Building Control.
19. However, it had not found enough evidence of harm and it therefore found it was not proportionate to take enforcement action and closed its investigation.
20. We have considered a related complaint from another neighbour impacted by the application and the development which took place. We found fault by the Council for its failure to give proper reasons for departing from its development plan and reaching a different view to its Planning Officer’s recommendations, the earlier planning refusals, and the Planning Inspector’s appeal decision.
21. The Council agreed to our decision, and it has since show us evidence it completed our service improvement recommendations. These included:
• retraining its Planning Committee members on probity in planning and how to properly explain its decisions; and
• developing a process for monitoring outstanding enforcement complaints to ensure investigations are completed within the target timeframes, where possible.

Analysis

Planning decision

22. Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. Applications which are not in accordance with relevant policies in the development plan should not be allowed unless material considerations justify granting planning permission.
23. The officer’s report shows that officers considered the side extension was contrary to several policies in the development plan and that there were no material planning considerations in support of the proposal.
24. I have considered the reasons the Committee gave for departing from the development plan. One of its reasons was some of the neighbours, who objected to the application, had reduced their own amenity by extending or doing works to their properties after the 2007 proposal was refused planning permission.
25. Comments made during the Committee meeting suggest that members considered the applicant should not be disadvantaged because some neighbour’s had extended their properties. However, even before such works took place, the impact of a first-floor side extension was considered to have an unacceptable impact on her amenities. And so, the reason given by the Committee did not explain why it reached a different conclusion to that reached by the Council and the Planning Inspector in three refusals previously. This was fault.
26. Another reason the Committee gave for granting planning permission was because the proposal did not harm the amenity to neighbouring properties. This is a very different view to that reached by the Council’s officers, who considered the proposal would have an overbearing effect and would unduly harm the outlook from Mr C’s property. It is also a different view to that reached on the previous similar proposals.
27. The Committee said that it disagreed with the Inspector’s decision on the earlier appeal because the proposal had no greater detrimental impact on the residents of neighbouring properties. But it did not explain the reasons for reaching this different view. Case law says that where a previous appeal decision is of direct relevance, the decision-maker should explain any discrepancy with the earlier decision and provide reasons for any departure from those conclusions which differ from their own. The Committee did not do so; this was fault.
28. I have considered whether the Committee’s failure to provide clear and convincing reasons for reaching a different view call into question its decision to grant planning permission. The Committee must have regard to the Planning Inspector’s decision, but it is entitled to reach a different view. I am satisfied that the Committee was aware of the relevant planning matters and decided that there were material considerations to justify granting planning permission. I therefore consider that if there had been no fault, and the Committee had properly explained the reasons for its decision, it still would have granted planning permission.
29. Members of planning committees are entitled to apply for planning permission and have their application fairly considered. However, it is important that decisions are fully explained and justified so that there are no grounds for accusations of favouritism from members of the public. The Committee’s failure to properly explain and justify its decision gave rise to suspicions of impropriety and led Mr C to feel that he had been unfairly treated.

Code of conduct

30. Mr C complained about the conduct of the applicant and the Chair of the Planning Committee in August 2020. The Council told Mr C in September 2020 that the Council had appointed an external investigator to carry out a preliminary assessment. It did not provide any further updates until early 2021, when it advised that the investigator had completed his assessment. The Council sent the assessment decision notices to Mr C which concluded that the elected member, who was the applicant, had not breached the Code of Conduct.
31. However, the complaint against the Chair of the Planning Committee warranted a formal investigation. The formal investigation was carried out by another external investigator who concluded that the Chair had not breached the Code of Conduct.
32. The Ombudsman cannot criticise a decision which has been made without fault. I have found no evidence of fault in the way the conclusion was reached.
33. There were some delays in the process and the Council should have updated Mr C on a more regular basis. I do not consider this caused Mr C any significant injustice.

Enforcement

34. After Mr C made an enforcement complaint in Autumn 2020, the Council visited the site and took some photographs to check whether the materials used on the extension were significantly different to the original building. It also wrote to Mr C’s neighbour on two occasions advising him to adhere to the permitted hours of construction or risk action for a breach of condition. The Council did not take any further action.
35. Mr C’s enforcement complaint was given a medium priority, which means the target timeframe for providing him with a response to his complaint is 28 days. It took the Council until early 2022 (16 months), for it to complete its enforcement investigation and inform Mr C. This is fault and I am satisfied this caused Mr C significant frustration.
36. I have not made any service improvement recommendations. This is because the Council has completed recommendations we made on a related complaint. It has therefore already taken steps to improve its enforcement process and provided training to its Planning Committee members, which is similar to any recommendations I would have made.

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Agreed action

37. To remedy the injustice the Council caused to Mr C, the Council should, within one month of the final decision:
1. Apologise in writing to Mr C for the failings identified in this case; and
2. Pay Mr C £500 to acknowledge the distress and time and trouble he experienced through pursuing his complaint.

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Final decision

38. I have completed my investigation with a finding of fault which caused an injustice.

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Investigator's decision on behalf of the Ombudsman