Summary: We found no fault in how the Council reached its decision to grant planning permission for development near Mr X’s home.

The complaint

1. Mr X said the Council, which has no planning policy about basement development, made an arbitrary decision to grant planning permission to build a large basement near his property because it:

• failed to ask the developer for a basement impact assessment;
• used information from a report prepared for an earlier proposal to build a smaller basement; and
• did not justify or give reasons for finding the scale of the basement acceptable.

2. Mr X said construction of the basement might cause tree damage, flooding and subsidence. And building regulation approval would deal with construction details for the basement, which meant he would have no opportunity to comment, and the information would not be publicly available.
3. Mr X also complained about the 11 months he waited for the Council to reply to his complaint about its planning decision.
4. Mr X wanted the Council to ask the developer to provide a basement impact assessment and other reports about conditions on the site. Mr X also said the reports should be available to the public and the development changed, if appropriate, based on their conclusions. Mr X also wanted the Council to prepare and adopt planning policies for basement developments.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. I:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared information from the Council with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

9. Most development needs planning permission from the local council. The law sets out the information needed for a valid planning application, which includes a completed application form, fee, and site plan. Councils may also prepare a local list showing any other information they consider is necessary to support applications for specific development proposals. The information asked for by a local list should be proportionate and reasonable. Council’s must publish, and keep under review, their local lists so developers know what, if any, added information they should send the council.
10. Councils must make their planning decisions in line with relevant policies in their local plans unless material considerations indicate otherwise. Material considerations concern the use and development of land in the public interest. Examples of material considerations are overlooking, traffic generation and noise. Private matters, such as the developer’s behaviour or property values, are not material considerations.
11. The Government’s National Planning Policy Framework (NPPF) is a material consideration. It says local plans and planning decisions should apply a presumption in favour of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs. Where there are no relevant local plan policies, the presumption means granting planning permission unless any adverse impacts significantly and demonstrably outweigh the benefits when assessed against the NPPF, or the NPPF indicates development should be restricted.
12. General planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.
13. Councils often report on development proposals. The report refers to the relevant planning policies and other material planning considerations. It will also set out the planning case officer’s assessment of the main planning issues and their recommendation to grant or refuse planning permission.
14. The courts have considered cases about council planning reports and decisions. They have said reports should not be subjected to “hypercritical assessment” and do not merit challenge unless their overall effect is to “significantly mislead” the decision maker on material issues. And decision reasons can be briefly stated. But reasoning should not result in substantial doubt about whether the decision maker understood the law or policy.

Consideration

Introduction

15. Mr X complained about the Council’s handling of a planning application for development near his home (‘the Application’). The Application included proposals to build a basement. One of Mr X’s concerns was the supporting information for the Application. He pointed to the Council not seeking a basement impact assessment from the developer. And he questioned the developer providing a report prepared for a different, smaller, basement proposal. Mr X also had concerns about the Council’s planning decision making. He pointed to the Council having no basement planning policy in its local plan. Mr X also said the Council failed to justify or give reasons for finding the scale of the Application basement acceptable.

Basement impact assessments

16. A basement impact assessment (BIA) will deal with local ground conditions, for example, geology and underground water tables. There is no national legal requirement for developers to provide a BIA when applying for planning permission to build a basement. And the Council’s local list (see paragraph 9) includes no requirement for a BIA. So, while some councils ask for a BIA, I had no grounds to find the Council acted with fault in not securing a BIA from the Application developer. (Mr X could suggest the Council includes BIAs for basement developments when it next reviews its local list.)

The technical report

17. After meeting national and local list requirements, developers may provide further information about their development with their planning application. Here, the applicant later provided a technical report (‘the Report’) to support the Application. The Report had supported another planning application for development on the site that included a smaller basement. Mr X’s concern was the Report predated the Application and was produced to support a different development.
18. Having received the Report, the Council needed to decide whether to consider it in determining the Application. The Council said the Report findings showed groundwater levels on the site were substantially lower than the proposed Application basement. And no nearby development had taken place since its preparation that was likely to have affected the groundwater findings. It decided to accept the Report. The Council’s position was not without merit. I saw no grounds on which to find the Council acted with fault in taking the Report into account in deciding the Application.

Planning policy

19. It is for councils to decide what policies they include in their local plans, which plans they must keep under review. Before its adoption, there will be public consultation, and an independent examination by a Planning Inspector appointed to act for the Secretary of State, of a local plan. The Planning Inspector will consider whether the plan meets legal requirements and the ‘soundness’ tests set out in the NPPF. So, while the Council did not have a basement policy in its local plan, this was not fault. (Mr X may comment on the need for a planning policy for basement developments when the Council next reviews its local plan.)

The basement

20. A Council planning officer prepared a report assessing the Application and recommending the grant of planning permission (‘the Officer Report’). The Officer Report referred to relevant local and national planning policies and identified, and considered, the key planning issues in deciding the Application. The Officer Report also summarised and addressed representations about the development, including those made by Mr X. Overall, the Officer Report included the information reasonably expected, and needed, to assess the Application.
21. Senior council planning officers approved to act for their council decide most planning applications. Such an officer decided the Application. The senior officer has access to the Application and planning records with the planning case officer’s report. Here, the Officer Report described the development, including the size of the basement. The Officer Report also referred to other recent nearby basement developments and the Council said this showed that basement development was acceptable in the local area.
22. However, Mr X’s concern was the Council’s decision the scale of the Application basement was acceptable. The nearby basements the Officer Report referred to were significantly smaller than the Application basement. However, in responding to Mr X’s Ombudsman complaint, the Council referred to another nearby site with an excavation for basement development slightly larger than the Application. The Application plans also showed how the basement did not extend disproportionately beyond the ‘above ground’ development. Given a senior professional Council officer would consider the Officer Report, there was sufficient information to reach a view on the scale of the basement. I therefore found no fault by the Council on this issue.

Complaint handling

23. Mr X complained about the Council’s handling of the Application. It was almost eleven months before the complaint completed the Council’s complaints procedure with the Council’s first response taking about nine months. Mr X chased the Council for a response during the nine months and the Council gave several apologies. The Council recognised the time taken was excessive and said it was not typical of its complaints handling. The Council referred to Mr X’s original complaint raising many issues that needed detailed consideration when it was exceptionally busy dealing with COVID-19 issues.
24. There was unacceptable delay in the Council’s complaints handling, which would have been frustrating for Mr X. However, the Council provided substantive responses to the complaint and its apologies provided suitable and proportionate redress for the frustration caused by its initial nine-month delay.

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Final decision

25. I completed my investigation finding no fault in how the Council reached its planning decision.

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Investigator's decision on behalf of the Ombudsman