Summary: Mr X complained the Council failed to follow its planning policy when it approved his neighbour’s application for a basement extension. We found fault and have made recommendations to remedy the injustice it caused and to avoid recurrence of the fault.

The complaint

1. Mr X complained the Council failed to follow its planning policy when it approved his neighbour’s application for a basement extension.
2. Mr X said that, because of the fault, the basement will be larger than would the policy limit, so excavation works will cause more disturbance and inconvenience. He is also concerned that excavation works will result in damage to trees and shrubs in his garden.

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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 read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, the case officer’s report and a supplementary report written after the Council made its planning decision.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Before councils consider planning applications, they must check what information they are likely to need. When councils are satisfied they have the information they need to consider an application, they ‘validate’ it and the decision-making process begins. There are national and local validation lists.
8. The national list includes information that must be provided, which is:
• a completed application on a standard form;
• plans to show the location of the site; and
• the correct fee.
9. Also, and where considered necessary;
• a Design and Access Statement; and/or
• an Environmental Impact Assessment.
10. Local validation lists may set out what each individual council might require if necessary to decide an application. Local lists often include things like:
• drawings showing existing and proposed elevations;
• cross-section drawings; and
• details of floor and ground levels.
11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. 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.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
15. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make, that are restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.

Background

16. Mr X’s neighbour submitted a planning application for development that included a basement extension. The Council’s local validation list shows that applications should include a site layout/block plan, but this was not provided. The layout/block plan would have shown the proposed development in relation to the site boundaries. Despite this, the Council validated the application and the decision-making process began.
17. The Council publicised the application and allocated it to a planning case officer. The planning case officer wrote a report, which included:
• a description of the proposal and a plan showing the location of the site;
• a summary of relevant planning history;
• a summary of comments from neighbours on the application;
• planning policy and guidance, including policy on basements and lightwells;
• an appraisal of the main planning considerations, including the impact on amenity flood risk and tree protection; and
• the officer’s recommendation to approve the application, subject to planning conditions.
18. A senior officer approved the application with conditions using delegated powers. Mr X complained about the Council’s decision because the planning case officer report had stated the basement complied with the Council’s planning policy, but it did not. The policy required that basements should not extend further than 50% of the depth of the garden of the host building.
19. The Council wrote a supplementary report, which said:
• the plans submitted by the applicant had not shown the rear boundary;
• the new basement extended further than the 50% limit;
• the basement extended 1.5 metres beyond the limit, and took up 59% of the rear garden; and
• despite the error in the planning case officer’s report, the Council considered the extension was acceptable, so it would not rescind or revoke its decision.
20. The Council’s complaint response to Mr X explained its view, that there was an error but it made no difference to its decision to approve the application. The Council apologised for the error.
21. Mr X disagreed with the Council’s measurements and said the basement extension was about 65% of the length of the garden. He considers it likely that if the Council had known this before a decision was made, it would have required the applicant to conform to its policy.

My findings

22. The Council has already accepted that part of its case officer report was wrong because the development did not comply with its basement policy. The misrepresentation in the report was fault.
23. The Council validated the application without a layout/block plan as is required by its local validation list. This was also fault.
24. When we find fault, we must determine whether we can recommend a remedy for the injustice caused to the individual complainant.
25. The basement will be larger than the 50% policy limit, but I cannot say it is more likely than not that, but for the faults I have found, the outcome would have been different. Even if Mr X’s estimation of the increase is correct it is not so large that I could say that no reasonable planning authority could approve this application. However, the Council should acknowledge the faults I have found and consider how it might avoid repeating them.

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Agreed action

26. To remedy the injustice to Mr X and the potential future injustice to others that could be caused by recurrence of the faults, the Council agreed to:
• apologise to Mr X for the further fault I have found; and
• consider what happened and whether it needs to make improvements to its working practices and procedures.
27. The Council will send the apology within two weeks from the date of my final decision.
28. The Council will provide the outcome of its review of working practices and procedures within three months from the date of my final decision.

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Final decision

29. I found fault in the way the Council made its planning decision. I have completed my investigation because the Council agreed to carry out my recommendations.

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Investigator's decision on behalf of the Ombudsman