Summary: The Council was at fault for failing to consider correct information before granting planning permission for a proposal near Mr X’s property. This caused Mr X an injustice. The Council has agreed to apologise and pay Mr X £200 to remedy the injustice.

The complaint

1. Mr X complained the Council based its decision to approve planning permission for a large undercover area to the rear of a pub on the wrong information.
2. Mr X said:
• the plans showed it in the wrong location. He believed if it had been shown correctly, the Council would not have approved it as it is significantly closer to his property.
• due to the incorrect plans, the Council did not consult the right neighbours.
• there is an enforcement issue as the developer has removed trees that the Council said should remain.

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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 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

5. I have considered Mr X’s complaint and have spoken to him about it.
6. I have also considered the Council’s response to Mr X and to my enquiries.
7. Mr X 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

Planning policy

8. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
9. 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.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
11. Government statements of planning policy are material considerations.
12. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. 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.
15. A section 211 notice is required to fell trees in a conservation area.

What happened

Background

16. Mr X lives in a densely populated area within a conservation area. A pub is located behind Mr X’s property. There was a small ‘pub manager’s garden’ that was closed off from patrons between Mr X’s garden and the pub beer garden. A row of trees grew along the rear boundary of the manager’s garden.

Planning application

17. In September 2021, the Council received a planning application to erect timber pergolas to the rear of the pub. The plans omitted the trees, wall and fence that separated original the beer garden from the manager’s garden.
18. Mr X and his neighbours objected to the planning application. They stated the plans were drawn incorrectly and also listed the other issues that could arise as a result of the proposal.
19. The planning officer visited the site. The Council has now acknowledged that the officer was not aware of the manager’s garden and believed the proposed pergola was located in the existing beer garden.
20. In November, the Council granted planning permission. Mr X said he believed the Council dismissed his, and other neighbours’ objections. He also said that due to the misunderstanding of the pergolas’ location, the Council did not consult all the correct neighbours or identified the impact the proposal would have on the conservation area.
21. The permission included a condition that no existing trees would be lopped, topped or felled as part of the construction.

Alleged planning breaches

22. In December, the contractors began work on the site. They began to remove the existing trees along the boundary between the beer garden and manager’s garden.
23. Residents reported the alleged breach of condition to the Council. The Council did not take enforcement action. It stated that although a section 211 notice was required to fell trees in a conservation area, it was likely the small trees that were removed would be given permission if an application was received.
24. Over the following months, the residents reported further breaches of planning control. The Council is currently investigating these alleged breaches.

My findings

25. The Council acknowledged the officer made a mistake when considering the location of the proposed development. This was fault.
26. The Council said that if the plans had been considered properly recognising the actual location of the pergolas in the manager’s garden, the decision to approve would have been the same. Therefore, if had not been for the fault, the outcome (the construction of the pergolas) would have still been the same for Mr X so there is no injustice from this perspective.
27. However, I recognise the fault caused Mr X considerable distress and inconvenience. Therefore, I am recommending the Council apologise to Mr X for its mistake and pay him £200 in recognition of the distress and inconvenience caused by the fault.
28. The enforcement case is still open. I therefore cannot reach a decision on any potential injustice caused to Mr X.

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Agreed action

29. Within 4 weeks of my decision, the Council will:
1. Apologise to Mr X for the distress caused by the Council’s mistake when considering the proposed plans for the pergolas.
2. Pay Mr X £200 for the distress caused and the time and trouble it has taken him to pursue this complaint.

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Final decision

30. I have completed my investigation. The Council was at fault for failing to consider the correct information before granting planning permission. This caused Mr X distress.

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Investigator's decision on behalf of the Ombudsman