Summary: Mr B says the Council wrongly validated a planning application, failed to consider the impact the development would have on his amenity and the greenbelt, failed to recognise differences in measurements and the size increase of the development, failed to consider the 60° rule, delayed determining the application, failed to keep him up-to-date and failed to properly address his complaint. There is no fault in how the Council considered the planning application. During the delay processing the planning application the Council failed to keep Mr B up-to-date and did not deal with his complaint properly. An apology, payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• wrongly granted planning permission for an application in 2018;
• wrongly validated a planning application in 2021;
• delayed determining the 2021 planning application;
• failed to consider the impact the 2021 development would have on his amenity;
• failed to consider the impact the 2021 development would have on the greenbelt;
• failed to visit the site and take measurements before approving the 2021 application;
• failed to consider the 60° rule when granting permission for the 2021 application;
• failed to properly address his complaints; and
• failed to respond to his correspondence and contacts.
2. Mr B says fault by the Council has caused him significant distress, inconvenience, financial loss, loss of amenity and has exacerbated a legal dispute with his neighbour.

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What I have investigated

3. I have investigated the issues relating to the grant of planning permission in 2021 and the Council’s communications with Mr B during 2021/2022. The final section of this statement contains my reason for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mr B and the organisation 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 should have happened

10. Section 13 of the Town and Country Planning (Development Management) Procedure Order 2015 (the order) says an applicant for planning permission must give requisite notice of the application to any person (other than the applicant) who is an owner of the land to which the application relates, or a tenant:
• (a)by serving the notice on every such person whose name and address is known to the applicant; and
• (b)where the applicant has taken reasonable steps to ascertain the names and addresses of every such person, but has been unable to do so, by publication of the notice after the prescribed date in a newspaper circulating in the locality in which the land to which the application relates is situated.
11. The order says where an application for planning permission is made, the applicant must certify that the relevant requirements of article 13 have been satisfied.
12. The National Planning Policy Framework (NPPF) says inappropriate development is, by definition, harmful to the green belt and should not be approved except in very special circumstances.
13. The NPPF says when considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the greenbelt. It says very special circumstances will not exist unless the potential harm to the greenbelt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.
14. The Council’s residential design supplementary planning document (SPD) includes policy RED3. This says the Council will limit the size of rear extensions using a 45° and 60° line rule. For single story extensions the 60° line should be taken from the centre of the nearest ground floor habitable room window. It says guidelines may be relaxed if the nearest habitable room window is not the primary window.
15. The Council’s unitary development plan (UDP) contains policy OL2. This says extension, alteration or replacement of existing dwellings within the greenbelt will be subject to the following criteria:
• any extension of the building does not result in disproportionate additions over and above the size of the original building; and
• the form, bulk, general design and external materials of the building is in keeping with its surroundings and retains the inherent character and scale of the original building.

What happened

16. The Council granted planning permission for a development at the neighbouring property to Mr B’s property in 2018.
17. Mr B contacted the Council in 2020 as he was concerned his neighbour was not building the development in accordance with the planning permission. The Council visited the site and identified differences between the extension it had approved and the size of the extension as built. The Council asked Mr B’s neighbour for a retrospective planning application. Mr B’s neighbour put in a retrospective planning application in January 2021. The Council consulted on that application and Mr B submitted objections. The Council reconsulted in April 2021 when Mr B’s neighbour included decking in the proposal.
18. Mr B complained to the Council in September 2021 as the planning application had still not been decided and Mr B wanted the Council to take enforcement action. The Council responded to the complaint in October 2021 and explained it could not take enforcement action while the planning application was outstanding. Mr B raised further concerns with the Council in November 2021. The Council granted planning permission in December 2021, when it also responded to the further concerns Mr B had raised. Mr B asked the Council to take his complaint to stage two in January 2022. The Council responded to that complaint in March 2022.

Analysis

19. Mr B says the Council should not have validated the planning application in 2021 as the applicant had completed the wrong ownership certificate. Mr B says part of the development is built on his land, rather than the applicant’s land, and therefore the Council should not have accepted the application with the ownership certificate signed to say the entire site was in the applicant’s ownership. I understand from Mr B’s point of view he is certain part of the development site lies within his property boundary, rather than the neighbour’s property boundary. I also recognise Mr B has provided drawings to the Council to support his contention that the development has been partly built on his land. In those circumstances I understand why Mr B would be concerned the Council validated the application.
20. However, it is not the Council’s role to decide whether a development site lies within the ownership of the applicant. Land ownership is, in any event, not a material planning consideration. In this case the applicant had signed to say the entire development site was in his ownership and had provided plans to the Council showing boundary lines. I appreciate Mr B disputes whether those boundaries are drawn in the right place and has provided his own documents. However, as it is not the Council’s role to determine land ownership I cannot criticise it for relying on the certificate signed by the applicant. From the Council’s point of view, the purpose of the land ownership certificate is to ensure any other landowners are notified of a planning application. In this case the Council had received an objection from Mr B and was therefore aware he knew of the application. As it was not the Council’s role to determine land ownership and as it was satisfied the B knew about the application I do not criticise the Council for validating the planning application. Any disputes about boundaries are a matter for the courts, rather than the Council.
21. Mr B says the Council delayed determining the 2021 planning application. Mr B says as a result he was left with a development that has been partly built on his land and there has been trespass and nuisance for more than 12 months. The Council accepts there was a delay determining the planning application. Council’s aim to make decisions on planning applications within eight weeks of receipt, although that is not always possible. In this case the Council received the application in January 2021 but did not make a decision until December 2021. That is a significant delay, although part of that delay was caused by the need to reconsult on plans to include decking for the development.
22. The Council is not responsible for any issues relating to encroachment, trespass or nuisance as a result of actions by Mr B’s neighbour. However, I consider Mr B likely suffered an injustice given the length of the delay due to the uncertainty about what would happen with his neighbour’s development and the planning application. Mr B is also concerned about the lack of updates from the Council during the period the planning application was under consideration. I therefore consider as well as Mr B’s uncertainty he had to go to time and trouble to find out what was happening with the enforcement and planning issues at the neighbouring site.
23. Mr B says the Council failed to properly consider the impact the development would have on his amenity. Mr B is particularly concerned about the loss of view of the greenbelt, the positioning of the raised decking area next to his garden and how that will be used and loss of light. I am satisfied the report for the application discussed the impact the development would have on Mr B’s amenity. The report recorded the relationship between Mr B’s property and the application site and noted the extension ran the full length of Mr B’s garden. The report recorded the officer’s view though that given Mr B’s property is to the south-east of the development site, which sits at a lower ground level than Mr B’s property, the impact the extension would have on daylight and sunlight to Mr B’s property was acceptable in planning terms. In addition, the Council acted to protect Mr B’s amenity by requiring the applicant to keep the roof light for the kitchen fixed shut and imposed a condition to prevent insertion of further roof lights on the roof space next to Mr B’s property to protect his amenity. Given all of that, I could not say the Council failed to consider how the development would impact on Mr B’s amenity when it granted planning permission. I therefore have no grounds to criticise it.
24. Mr B has also raised concerns about the loss of his view of the greenbelt. While I understand Mr B’s concern, the impact a development will have on a neighbour’s view of the countryside is not a material planning consideration. I therefore cannot criticise the Council for not taking that into account.
25. I am also satisfied the Council has considered the impact the decking would have on Mr B’s amenity. I say that because the report refers to the positioning of the decking, noting it is in the same position as the existing raised patio area. The report records the officer’s view that due to the distance from neighbouring properties it was not considered the decking would result in unacceptable levels of overlooking. As I am satisfied the Council has properly considered the matter, there are no grounds on which I could criticise it.
26. In reaching that view I am aware Mr B is concerned about potential use of that decking area and whether the applicant will seek to enclose it further, which will make the extension even bigger. In terms of Mr B’s concerns about noise the report records any noise disturbance is a matter monitored under separate legislation. That is the Environmental Protection Act 1990. The role of the planning process is not to duplicate matters which are controlled by other legislation. In any event, what Mr B is concerned about here is potential use of the neighbouring garden. The grant of planning permission does not give the neighbour permission to create noise or smoke nuisance. If that happens Mr B will be able to raise those issues with the Council’s environmental health department. Similarly, if Mr B’s neighbour encloses the decking area to extend the property further without seeking planning permission that is a matter Mr B will be able to report to the enforcement department.
27. Mr B says the Council failed to properly consider its policy on development in the greenbelt and how the development would impact on the greenbelt. Mr B points out the development is a further development of a property that has already had several extensions. Mr B says the Council failed to consider that or calculate the volume increase before approving the application. Mr B also says the Council granted permission even though it accepted it was a disproportionate extension and says his neighbour did not provide justification for very special circumstances for completing a development in the greenbelt, despite the Council asking for that information.
28. I have considered the report for the planning application. I am satisfied that report set out the concerns residents had raised about the impact on the greenbelt. I am also satisfied the report referred to the relevant sections of the NPPF and the Council’s policies relating to development in the greenbelt. Mr B is right to point out the report for the application referred to the extension being a disproportionate extension. However, the report also went on to discuss the Council’s view on why it nevertheless considered the development acceptable in terms of its impact on the greenbelt. I note the report specifically referred to the fact the development is surrounded by other properties, that it is not visible from public vantage points, that the development proposed will replace an existing conservatory of similar size and that, in the officer’s view, the proposal would represent an improvement on the existing position. Taking all that into account the Council concluded although the development would cause limited harm to the openness and permanence of the greenbelt there were very special circumstances to justify approval of the application. I appreciate Mr B is likely to disagree with that assessment. However, as I said in paragraph 6, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. As the Council has reached its decision after considering the impact the development would have on the greenbelt and setting out in the report why it considered the development acceptable I have no grounds on which I could criticise it. That is the case no matter how much Mr B disagrees with the Council’s assessment.
29. In reaching that view I am aware Mr B is concerned the Council did not calculate the volume increase after taking into account all the developments at the site before granting planning permission. However, I am satisfied the report clearly set out that the application site had already had a number of previous grants of planning permission. I am also satisfied the report for the application made clear the development would more than double the size of the original property, when taking into account the previously approved extensions. I therefore could not say the Council failed to consider those matters when it granted planning permission. As I have made clear, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault, as is the case here.
30. Mr B says the Council granted planning permission despite the fact the applicant had not provided details of very special circumstances. Having considered the documentary evidence I am satisfied the agent representing the applicant responded to the Council’s request for justification for very special circumstances. I am satisfied the report for the application set out what the applicant’s agent had said. I appreciate the Council has not relied on any of those very special circumstances in deciding to grant planning permission. However, as I have made clear, I am satisfied the report set out why the Council believed very special circumstances had been satisfied. It is not the Ombudsman’s role to comment on the merits of that judgement given I have found no evidence of fault in how it was reached.
31. Mr B says the Council failed to visit the site and take measurements before it approved the 2021 planning application. Mr B says the Council therefore failed to identify that the development was two metres further forward than it should have been. The evidence I have seen though satisfies me the Council recognised the development as built was not in accordance with the planning permission given it required the applicant to submit a further planning application. The Council would not have done that had it been satisfied the applicant had built the development in accordance with the 2018 planning permission. I therefore have no grounds to criticise the Council.
32. Mr B says the Council failed to consider the 60° rule which means it allowed a development which blocks more light to his property. I am satisfied the Council considered the 60° rule when it granted planning permission for the development. I say that because I note the report refers to the policy, which I refer to in paragraph 15 and records that although the rear wall of the extension does not breach the 60° rule the overhanging canopy breaches it as there is a minor protrusion. The report goes on to record the officer’s view that given the limited breach, the change in ground levels and the distance from Mr B’s kitchen the impact was nevertheless considered acceptable in planning terms. Again, I recognise Mr B is likely to disagree with the Council’s judgement here. However, as I have made clear, it is not my role to comment on the merits of a decision reached without fault. As I am satisfied the Council took into account the 60° rule and explained why it considered the development acceptable even though there was a breach I could not say the Council failed to consider the matter. This is therefore a matter of judgement and it is not the Ombudsman’s role to comment on that given there is no fault in how that judgement has been reached.
33. Mr B says the Council failed to properly address his complaints. Having considered the documentary evidence I note the Council provided complaint responses to Mr B in October 2021, January 2022 and March 2022. The first of those complaint responses came before the Council had reached a decision on the planning application. The second response was then intended as a further explanation of the first response. I can understand Mr B’s concern given he raised detailed points in his complaints of September and December 2021. However, the first complaint came before the Council approved the planning application. Some of the concerns Mr B raised were therefore in anticipation of the Council granting planning permission. If the Council did not consider it could answer the points Mr B was raising about how the planning application was being processed, in terms of some of the judgements he anticipated the planning officer making, I would have expected the Council to explain that to Mr B at the time and have suggested those matters be dealt with as a complaint if permission was granted. As the Council did not do that I would have expected the complaint responses to address the points Mr B had raised, albeit that would have been difficult in relation to issues relating to a grant of planning permission which had not yet taken place. I am not satisfied the Council did that.
34. I am also concerned that when responding to the complaint at stage two, after planning permission had been granted, the Council did not take the opportunity to address all the points Mr B had raised. I can therefore understand why Mr B feels his complaint was not dealt with properly. Failure to manage the complaint process properly and advise Mr B of what the Council could and could not consider before the planning application was determined, is fault.
35. Mr B also says the Council failed to respond to his various contacts. It is clear there has been significant contact between Mr B and the Council. Those contacts have covered enforcement issues, the processing of the planning application and the planning application decision. I appreciate Mr B expected to be kept up to date and in this case there was a significant delay processing the planning application. While we would not normally expect the Council to keep someone who has objected to a planning application up to date with the processing of it when there have been delays, this case is complicated by the fact the planning application was submitted as a result of an enforcement complaint Mr B submitted. We would normally expect the Council to keep a person who has raised enforcement issues up-to-date with what is happening. Failure to do that is therefore fault.
36. I now have to consider what remedy is appropriate to reflect the injustice to Mr B as a result of the faults identified in this statement. As I have made clear, I have found no evidence of fault in how the Council determined the planning application. However, there was fault in failing to manage the complaint process properly and failing to keep Mr B up-to-date with what was happening, which caused him uncertainty and led to him having to go to time and trouble to pursue his complaint. To recognise how those faults have impacted on Mr B I recommended the Council apologise to him and pay £250. I also recommended the Council remind officers in the planning and enforcement teams of the need to keep those who have raised enforcement complaints up to date when action is on hold pending consideration of a planning application, particularly when the processing of the application is delayed. I further recommended the Council consider how to deal with complaints about issues on planning applications which have not yet been determined and then communicate that decision to officers dealing with complaints. The Council has agreed to my recommendations.

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Agreed action

37. Within one month of my decision the Council should:
• apologise to Mr B and pay him £250;
• consider how to deal with complaints about planning applications which have not yet been determined and then communicate that decision to complaints officers; and
• remind officers in planning and enforcement teams of the need to keep complainants up-to-date when an enforcement investigation has begun and a retrospective planning application has been submitted if there are delays processing those applications.

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Final decision

38. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

39. I have not investigated Mr B’s concerns about how the Council dealt with the 2018 planning application. That is because I am satisfied the decision on the application was taken in 2018, which is more than 12 months before Mr B complained to the Ombudsman. I see no reason why Mr B could not have complained to the Ombudsman within 12 months and I am therefore not exercising the Ombudsman’s discretion to investigate how the Council dealt with that application.

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Investigator's decision on behalf of the Ombudsman