Summary: The Ombudsman found no fault on Mr Y’s complaint about the Council failing to notify him of a neighbour’s planning application. When alerted, it sent him a notification letter before it decided the application. It was fault not to consider his representations. It was also fault not to give reasons for the recommendation in the planning officer’s report. The agreed action remedies the injustice caused.

The complaint

1. Mr Y complains the Council, when considering a neighbour’s planning application for a replacement fence, failed to:
1. notify him of the application;
2. properly consider the representations he sent against the application; and
3. consider its impact on the amenities of neighbouring properties.
2. As a result, he lost the chance to have his representations properly considered and his amenities are affected by an industrial looking fence which is taller than the previous one.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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Town and Country Planning (Development Management Procedure) (England) Order 2015

5. An application for planning consent must be publicised by the local planning authority by giving notice: a) by site notice in at least one place on or near the land to which the application relates for not less than 21 days; or b) by serving the notice on any adjoining owner or occupier. (Part 3, Article 15 (5))

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How I considered this complaint

6. I considered all the information Mr Y sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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Council’s Statement of Community Involvement (November 2019)

7. The Statement of Community Involvement explains the processes the Council goes through when deciding planning applications. It sets out how communities and interested parties can engage in the planning process and make their views known as well as how their views are taken in to account in the planning process.
8. For this type of application, it will publicise the application by either a site notice and/or neighbour notification. Neighbours to the development site are notified by letter and as a minimum, all properties sharing a boundary with the application site.

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What I found

Notification

9. Mr Y’s neighbour applied to the Council for planning consent to replace a fence on its land which runs along his garden boundary. This would replace the existing metal looped fence with a taller metal rail fence. He is unhappy because the Council failed to tell him about it. Mr Y argues his close boarded fence infront of the existing fence, will not screen the new, taller one.
10. The Council explained it publicised the application by sending notices to adjoining owners or occupiers. While the officer who validates applications identified Mr Y as needing notification, a support officer failed to send it to him. This was human error.
11. While it did not send one to Mr Y initially, he contacted the planning officer several days after they were sent to other neighbours. Mr Y only became aware when reading the Council’s weekly list of planning applications. The officer sent a notification letter to Mr Y shortly after which gave him 21 days to comment on the application. The Council granted planning consent.

Analysis

12. I found no fault on this complaint and in reaching this view, took the following into account:
1. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a council’s “Statement of Community Involvement”. In all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice, or neighbour notification, as the law viewed it as a minor development.
2. The law, and the Statement of Community Involvement, required the Council to give Mr Y notification of the application.
3. The Council failed to send him a notification letter at the same time it sent them to his neighbours. When alerted to this failure shortly afterwards, it sent him one which gave him 21 days to respond.
4. I am satisfied the Council sent him notification before it decided the application. While it only did so because of Mr Y’s contact, it did send him notification and by doing so, met its legal obligation.

Representations

13. Mr Y complains the planning officer failed to take account of the representations he sent. There is no mention in the officer’s report of receiving them.
14. The Council noted the notification letter sent to Mr Y explained he could make comments on the application through the planning application page on its website. The letter also explained how to add comments on this page. The website said the Council accepts comments by email and gave a specific email address for him to use. It also said he could send representations by letter and gave him an address to use.
15. Mr Y emailed his representations to the Council which included his concerns about: the design of the fence, as the proposal looked industrial/commercial for a residential setting; its height, as it is 2.38 metres which meant it would be higher than his 1.52 metre close boarded fence; its overbearing impact on his amenities which will affect his right to enjoy his garden.
16. Mr Y did not send them to the email address set out in the letter or to the address set out by the letter. Instead, he emailed them to the planning officer he had previously corresponded with.
17. The Council explained the usual practice is for the officer who receives representations this way to send them on to the correct email address. The officer failed to do this. The Council also explained this is the reason why it sends out instructions about submitting representations: it avoids officers missing emails containing representations.

Analysis

18. I found fault on this complaint and in reaching this conclusion, took the following into account:
1. The Council’s notification to Mr Y clearly set out what he had to do if he wanted to make representations. Mr Y failed to follow these instructions. As such, he has some responsibility for what followed.
2. Although it gave him these instructions, I note the paragraph that followed them in the letter said, ‘and any matters or queries should be directed to the allocated Case Officer’. I consider this has the potential to confuse those wishing to make representations. I also note the notification letter failed to warn that failing to follow these instructions could result in representations not being considered.
3. The Council said officers regularly check their inboxes and the ‘usual practice’ is for any representations received directly by them to be sent on to the correct email address. There was clearly a failure to follow the usual practice on this occasion.
4. The fault caused Mr Y an injustice as he lost the opportunity to have his representations considered. He also has the uncertainty of not knowing whether the outcome of the application would have differed but for this fault.

Amenities

19. Mr Y argues as the Council failed to take into account his representations, it did not consider this application properly as it failed to look at its possible impact on him and other neighbours.
20. The planning officer’s report concluded the proposal would not harm the character and appearance of the existing dwelling and surrounding street scene. Nor would it cause harm to the living conditions of neighbours in terms of lost light, overlooking, or visual outlook.
21. In response to our enquiries, the Council said the officer decided the proposal would not cause harm to the living conditions of neighbours because the applicant had permitted development rights to erect two-metre-high fencing anyway. The officer decided an open palisade fence slightly above that at 2.38 metres would not harm neighbours’ living conditions.
22. The Council also said the officer considered the application would have no impact on the character and appearance of the area. This is because it was not in a conservation area and nor was it a listed building. In addition, there were no additional design features to consider as the design of the fence proposed was not too different to the existing fence.
23. The Council accepts the reasons it gave for the officer’s decision should have been included in the officer’s report but, argued the general issues were considered.

Analysis

24. I found fault on this complaint and in reaching this conclusion, took the following into account:
1. All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation, and noise.
2. 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.
3. The courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the main 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 aware 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.
4. The planning officer’s report on this application is understandably brief considering the nature of the proposal. The main problem with the report is while it sets out the officer’s view of the proposal not having an impact on the character, appearance of the existing dwelling, and surrounding street scene, or causing harm to neighbouring amenities, it fails to explain the reasons why the officer reached these views.
5. This means I cannot say the officer properly considered the impact of the proposal. This would include, for example, considering the impact of part of the new fence extending beyond the height of his fence. To screen this excess, Mr Y would either have to go to the time, trouble, and expense of planting screening, or applying for planning consent to increase the height of his fence to match it.

25. I am satisfied the fault caused him outstanding injustice. He had the time and trouble of pursuing this complaint, suffered some anxiety and frustration with the Council’s actions, and had the uncertainty of not knowing whether it properly considered the application.
26. I am not satisfied it caused him any other injustice. This is because I understand from Mr Y that the applicant offered to reduce the height of the new fence to two metres. Indeed, the new fence is now in place at this height. This means Mr Y’s fence no longer fully screens the new fence as it is 1.52 metres in height.
27. Mr Y can extend the height of his fence to two metres under permitted development rights. Under permitted development rights, planning consent is considered already granted by the government for certain works provided they fall within certain limits. Both Mr Y and the applicant had permitted development rights to erect fences on their property up to 2 metres in height. What this means is Mr Y always had the possibility of the applicant erecting a fence up to the maximum height allowed under permitted development rights.

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Agreed action

28. I took account of our guidance on remedies.
29. The Council agreed to carry out the following action within four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for its failure to: set out clearly in the notification letter the process of making representations that did not potentially cause confusion or warn about the consequences of not following procedure; set out reasons in the planning officer report for recommending approval.
2. Act to ensure future planning officer reports contain reasons for their recommendations.
3. Review the information set out in the notification letter about representations to ensure the instructions are clearly explained, without the risk of causing confusion, and to warn failure to follow them risks representations not being considered.

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Final decision

30. I found fault on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman