Summary: Mr B complains the Council did not notify him of a planning application or properly consider the impact. He also says the application should have been heard by a committee due to a possible conflict of interest. He says the extension is overbearing and overlooks part of his garden. We find fault in how the Council considered the application. However, this did not cause a significant injustice.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council did not send him a neighbour notification for a planning application for a garage next to his back garden. He says the garage is overbearing and causes overlooking, and that the Council did not properly consider the impact on his amenity. He also says a planning committee should have heard the application, rather than a delegated officer, because of a potential conflict of interest.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments before reaching a final decision.

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What I found

Law, Guidance and Local Policies

6. Planning permission is required for the development of land (including its material change of use).
7. 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 councils “Statement of Community Involvement”. In all cases the application must be published on the council’s website. In this case, the legal requirement for a site notice or neighbour notification. The Council’s protocol in its Statement of Community Involvement was for neighbour notification, or a site notice if there were no nearby neighbours.
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, overshadowing and privacy.
10. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.
11. The Department for Levelling Up, Housing and Communities has published guidance on ‘Determining a planning application’. It says the exercise of power to delegate planning functions is generally a matter for individual local authorities, having regard to the need for efficient decision making and local transparency.
12. The Local Government Association has produced guidance to councilors and officers making planning decisions, called ‘Probity in Planning’. It says applications by officers and their relatives can easily give rise to suspicions of impropriety. Such proposals must be handled in a way that gives no grounds for accusations of favouritism. Any local guidance should address the following points:
• If submitting their own proposal they should play no part in its consideration
• A system should be devised to identify and manage such proposals and ensure probity in decision making
• The council’s monitoring officer should be informed of such proposals
13. The Council has a Scheme of Delegation for planning applications. It says that a planning committee will determine any planning or development control matters that are:
• Submitted by a member of staff within the Development Management and Policy service area, or by an immediate family member or partner, where representations objecting to the application are received.

Background

14. In mid-2021 Mr B’s neighbour submitted a planning application for an extension to their house and a new detached garage. The neighbour used an agent to submit the application. The agent ticked a box on the application form that said they had a personal relationship with a member of staff at the Council.
15. The garage is close to the boundary with Mr B’s back garden. It has two storeys, with a room above the garage. The first-floor room has a front facing window. Mr B says this overlooks part of his garden.
16. The Council has provided evidence that neighbour notifications, including to Mr B, were printed. The Council also put up a site notice and commissioned a press advert. However, Mr B says he did not receive a neighbour notification. He says two of his other neighbours also did not receive a notification.
17. The Council received one objection to the application from a different neighbour. The objection also said that person had not received a neighbour notification.
18. The Council approved the application and produced a delegated report. The report had a section that considered the impact on neighbours’ amenity. It said the size and siting of the garage mean there would be very limited impact on outlook and privacy to neighbouring properties.
19. Mr B made a complaint about the decision. He said the Council had not notified him or other neighbours of the application and had not properly considered the impact on his amenity. Mr B says the garage is tall, much higher than the hedge on the boundary of his garden and is overbearing.
20. Mr B also raised concerns that on the application form it said the agent who submit the application on behalf of his neighbour was related to a member of staff. He said in these circumstances the Council’s planning committee should have heard the application, not a delegated officer.
21. The Council did not uphold Mr B’s complaint. It said that while the planning report could have gone into more detail, it did consider the impact on amenity. It said any views over Mr B’s garden fence would be very acute and similar to those from the main house, so would not warrant refusal. It said the report made specific reference to outlook and had properly considered this.
22. In its response to my enquiries, the Council said it did not believe there would be an unacceptable loss of light to Ms B’s property. It said the roof of the garage slopes away from the boundary. It said there will be some overshadowing in winter months when the sun is low in the sky but this would not be sufficient to refuse planning permission. It said that, although not official planning policy, BRE guidance recommends that at least half the garden receive two hours of sunlight every day on 21 March. It said any overshadowing would be well within these guidelines and that in June there would be almost no overshadowing due to the height of the sun. It said there would be no overshadowing to the house.

Findings

23. I have separated my findings into the following issues:
• The relationship between Council officer and agent
• Neighbour notification letters
• How the Council considered the impact on amenity

Relationship between Council officer and agent

24. The Council says that it has, until now, taken the view that its Scheme of Delegation only requires the committee to hear an application where the council officer or relative is the person applying for planning permission. This means it does not apply when an agent acting on the applicant’s behalf has a relationship with an officer.
25. However, the Council says it acknowledges that its online application form asks both agents and applicants to declare if they have a relationship with an officer. Therefore, it says this case has raised questions about whether this is the correct interpretation of the Scheme of Delegation. It says that going forward it has started to err on the side of caution and call-in applications where the agent is a relative. It says it will look to clarify this point within its constitution.
26. I have considered whether there is fault in the Scheme of Delegation not being sufficiently clear. On balance I do not find fault. The Probity in Planning guidance does not mention agents. It only says where the applicant is an officer or relative of the officer. It also does not specifically say when an application must be heard by a committee, only that the councils should have systems in place and that the person making the application should have no role in the decision.
27. It is for the Council to set the terms of its scheme of delegation. It should have regard to any relevant guidance and good practice. However, in this case I would not be able to find fault with the Council for its interpretation that agents are not included. It may be helpful going forward for the Council to clarify its procedure in these situations, as it suggested, given the uncertainty this case has raised. But it is for the Council to decide what, if any, changes it makes to the Scheme of Delegation based on its consideration of the relevant guidance and need for transparency.
28. Beyond the Scheme of Delegation, the Council should also consider its codes of conduct for officers and any potential conflicts of interest in each case. Had the officer in question directly commented on the application as part of a decision or consultation, it may have given rise to a conflict of interest. However, in this case an external consultant responded instead, and there is no evidence the officer influenced the outcome of the case in any way.

Neighbour notification letters

29. It is the Council’s policy to send direct notification to neighbours for applications of this nature. At least four of the households that should have received direct notification, did not receive this. Mr B has provided a statement from himself and two other households confirming they have never experienced problems with post being delivered before. The Council has provided evidence it printed the letters. However, it is normal practice for councils to send notifications by regular post, rather than recorded, due to the significant cost recorded delivery on such a large scale would incur. Therefore, the Council cannot provide tangible evidence the letters made it from the printer into the post.
30. It is clear something went wrong at some stage and the letters did not arrive. It is possible the letters were not sent out because of human error on the part of someone within the Council. However, it is also possible they were sent out and the problem occurred with a third party. It is not entirely uncommon for things to go missing in the post. Without any clear evidence either way, I have not been able to reach a decision, on balance, about why this happened, and whether it is fault on the part of the Council or otherwise.
31. Had I found fault, there would be an injustice to Mr B in that it potentially denied him the opportunity to object to the application. However, based on the evidence available I cannot reach of finding of fault and so cannot consider any injustice this may have caused. I also note the Council placed a site notice and a press advert. That would not satisfy its own policy, which requires direct notification. But a site notice alone would be sufficient to meet the legal requirements for this type of application, as outlined at Paragraph 7.
32. When I spoke to Mr B he mentioned that he did see the site notice but did not think it was something that would affect him because, if it was, he would have received direct notification. I understand why Mr B might have taken this view in light of the Council’s policy of neighbour notification. However, it does mean he was aware an application was being considered for a neighbouring property and had the opportunity to explore this further.

How the Council considered impact on amenity

33. Mr B’s two main concerns are that the garage is overbearing and a loss of privacy to his garden. He says the Council did not properly consider these impacts in its delegated report. On balance, I do not find fault in how the Council considered the impact of these two material considerations.
34. I cannot question the merits of the Council’s decision, only consider whether it has followed the correct procedure and properly taken into account the material issues.
35. The report says there would be ‘very limited impact on outlook and privacy’. It does not go into significant detail but says this is due to the siting and size of the garage. It may have been good practice to include a more detailed explanation of what it was about the size and siting of the garage that led the officer to reach that view. However, the officer was aware of the details of the plans, the dimensions, the location and its relationship to neighbouring properties. They made a decision based on this knowledge and set this out in the report.
36. I note the Council has since given further explanation for why it does not believe the level of overlooking to the garden would be significant enough to justify refusal and that it would not be unacceptably overbearing. I understand Mr B disagrees with this judgement but, again, I cannot question the merits of the decision.
37. Mr B did not raise significant concerns about loss of light to his garden. However, he mentioned there was some overshadowing and therefore I have considered this point.
38. In its response to my enquiries the Council says the report did not explicitly mention loss of light because it was not considered to be a significant issue. Based on the available evidence, I am of the view that loss of light to neighbours in general was a relevant issue, and this impacts on Mr B’s garden. The garage is roughly to the southwest of the row of gardens including Mr B. In the Council’s response to my enquiries accepts the garage will block light to those gardens at certain times of year. It has given an analysis of why it does not consider this loss of light would be unacceptable. However, this is after the fact. I would have expected to see some explanation in the report of how the Council considered this.
39. The Ombudsman’s guidance for practitioners on ‘Recording planning decisions’ says it is good practice to ensure there is a record of how all key material planning considerations were considered. Therefore, I find fault in how the Council considered loss of light during the application.
40. I do not find the fault causes a significant injustice. This is because, on balance, I cannot find the Council is likely to have made a different decision, but for the fault.
41. The Council has provided an analysis of the how much overshadowing it believes the garage will cause, based on its calculations, and an explanation of why it would not consider this unacceptable. Again, this is after the fact and any such analysis should have been recorded at the time. However, had this analysis been included in the report, I would not have found fault.
42. It is not possible for me to determine exactly the extent to which the garage has caused overshadowing, or for how long of the day at different times of year. Mr B has provided a photograph that shows overshadowing. However, the Council has provided a clear explanation of the positions of Mr B’s garden, the garage and the sunlight. I acknowledge the Council would have approved the application if it believed there was some overshadowing but that this was not to an unacceptable level.
43. On balance, I cannot find it is likely the Council would have made a different decision had it properly set out an analysis of the impact on light, in its delegated report.

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Final decision

44. The Council is at fault in how it considered the application but this did not cause a significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman