Summary: Mrs B complains the Council did not notify her of a planning application or properly consider the impact. She also says the application should have been heard by a committee due to a possible conflict of interest. She says the extension is overbearing and causes overshadowing to her 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 Mrs B, complains the Council did not send her a neighbour notification for a planning application for a garage next to her back garden. She says the garage is overbearing and causes overlooking, and that the Council did not properly consider the impact on her amenity. She 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 Mrs B provided and spoke to her representative about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B’s representative 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 Mrs 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 Mrs B’s back garden. It has two storeys, with a room above the garage.
16. The Council has provided evidence that neighbour notifications, including to Mrs B, were printed. The Council also put up a site notice and commissioned a press advert. However, Mrs B says she did not receive a neighbour notification. She says two of her 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. Mrs B’s representative made a complaint about the decision. They said the Council had not notified her or other neighbours of the application and had not properly considered the impact on her amenity. Mrs B says the garage is tall, and overbearing, and blocks light to her garden for significant periods of the day.
20. Mrs B’s representative also raised concerns that on the application form it said the agent who submit the application on behalf of her neighbour was related to a member of staff. They said in these circumstances the Council’s planning committee should have heard the application, not a delegated officer.
21. The Council did not uphold the 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 Mrs 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 Mrs 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 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. Mrs B has provided a statement from herself 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 Mrs B in that it potentially denied her 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.

How the Council considered impact on amenity

32. Mrs B’s main concerns are that the garage is overbearing and overshadows her garden.
33. 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.
34. On balance, I do not find fault in how the Council considered the impact on outlook. The report says there would be ‘very limited impact on outlook’. 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.
35. However, there is no evidence in the report the Council considered the impact on any loss of light to Mrs B. It identifies that loss of light is a relevant consideration. But does not say how it reached the view there would not be an unacceptable loss of light.
36. 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 Mrs B’s garden was a relevant issue. The garage is roughly to the southwest of Mrs B’s garden. In the Council’s response to my enquiries accepts the garage will block light to the garden 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.
37. 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.
38. 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.
39. Mrs B has provided photographs that show overshadowing to her garden. In two of the photographs the garden appears to be completely in shadow. In another, what appears to be around a third of the garden is in light. She says the level of overshadowing caused is significant.
40. 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.
41. 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. There are contrasting statements from the Council and Mrs B about the impact. However, the Council has provided a clear explanation of the positions of Mrs B’s garden, the garage and the sunlight. It has clearly explained why it would not have made a different decision. The photographs show overshadowing, but 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.
42. 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

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

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Investigator's decision on behalf of the Ombudsman