Summary: Mr C said the Council was responsible for administrative failures which he said caused the Council to wrongly grant permission for a house which overshadows his own property. He says that, despite assurances from the chairman of the Council’s planning committee, planning officers failed to rectify these failures and then discharged a planning condition which would have rectified the failures before it could do so. On the evidence seen, the Council was at fault for some errors during the processing of the application, but this fault did not cause Mr and Mrs C injustice.

The complaint

1. The complainant, Mr C, says the Council is at fault for maladministration in its planning procedures, in particular:

1. Misleading, or allowing to be misled, a planning committee
2. Agreeing to consult Mr and Mrs C about amendments to plans and then failing to do so,
3. Refusal to rectify errors made in the minutes,
4. Poor complaint responses and communication,
5. Delay
6. A lack of impartiality.

2. Mr C says this fault has caused him injustice in that the Council has granted permission for a house which is too large and which will overshadow his own property and may force him to move.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word “fault” to refer to these. We consider whether there was fault in the way a council made a 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. 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)
5. 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

6. I spoke to Mr C and, using the information he provided, wrote a letter to the Council requesting further information. I considered all the information I had gathered and wrote a draft decision.
7. Mr C and the Council had the opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

What should happen

8. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. My role is to determine whether there has been administrative fault in the way the decision was made. I have therefore considered how the Council …
9. The case officer's report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered the impact on the amenity of existing properties. The report then assessed these matters and concluded the development would not cause any significant harm to the living conditions of existing or future occupiers in terms of loss of light, overshadowing or visual intrusion. There were no planning reasons to justify refusing the application.
10. The central government has passed laws and regulations and issued guidance to control planning in England. The general rule, set out in the National Planning Policy Framework, is that permission for planning must always be granted by a local planning authority, unless there are sufficient reasons not to do so. Reasons not to do so include a finding that the development would interfere with the ‘amenity’ of local people and that the development does not comply with local planning policy and guidance.
11. Councils are the planning authorities for their areas. Those wishing to carry out development in the area must usually ask their council for planning permission.
12. Certain minor sorts of development, such as small extensions and small structures in gardens, do not require planning permission and can be built under the ‘permitted development’ rules. Those wishing to carry out permitted developments must still register the plans with the Council which, providing the development complies with the permitted development rules, has no power to halt the development.
13. On receipt of an application for planning permission that is not permitted development, councils must process the application correctly. They must notify local people affected by the development. An officer must write a report considering the application and making a recommendation either for a grant or a refusal of permission.
14. Smaller planning applications may be considered by a planning officer under ‘delegated powers’. Larger, controversial or unpopular applications will be considered by the Council’s planning committee.

Revocation and Modification Orders

15. the Town and Country Planning Act 1990, Section 97: says:

1. If it appears to the local planning authority that it is expedient to revoke or modify—
1. Any permission (including permission in principle) to develop land granted on an application made under this Part, or
2. any permission in principle granted by a development order, the authority] may by order revoke or modify the permission to such extent as they consider expedient.

2. In exercising their functions under subsection (1) the authority shall have regard to the development plan and to any other material considerations.

Council planning guidance

16. The Council’s adopted planning guidance says that there should be a distance of 13 metres between the main elevation f an existing dwelling and a gable end with no habitable windows. This distance should be increased slightly if there is a difference in elevation between the two properties. There is no specified formula for increasing the distance. The Council has said it is, “good practice to increase the separation distance by a minimum of 1m for every 1m change of level”

Planning committee minutes

17. The Ombudsman has published advice, Recording Planning Decisions (2018). It says councils should keep written records of planning decisions taken under delegated powers. It says planning officers should:
• set out the main considerations underlying any decisions including
• consideration of height difference between existing and proposed buildings.
18. The same guidance says councils should normally set out the rationale for any planning decision. However, the relevant guidance does not apply to planning committee minutes. These should include:
• Conditions and the reasons for imposing them
• Reasons for refusal of a grant of planning permission
• Reasons for going against a planning officer’s advice.

What happened

19. Mr C lives in the Council’s area. In 2012, a commercial property developer (“the developer”) applied for permission to develop a site and build over 100 houses on a site adjacent to Mr C’s home. Outline planning permission was granted.
20. In February 2021, the developer applied to amend the plans and change the site layout house types. The Council, as planning authority, consulted the public and notified those affected including Mr and Mrs C.
21. Mr and Mrs C believed the amended plans would affect him adversely because one house, House A, which was nearest to theirs would be built on ground 1.5m higher than his house and would overshadow it. Mr and Mrs C submitted three objections. These set out their objections and concerns. They said that the property would be close to their garden, was to be built on land higher than their house and would therefore overshadow it. They said their main living area included their conservatory which extended beyond the back wall of their house and that, therefore, the impact on them would be severe.
22. A planning officer wrote a report. It considered Mr and Mrs C’s objections and those of other neighbours who believed House A would be too large, particularly as it was built on higher ground, too close to existing properties, including Mr and Mrs C’s. It also considered whether the proposals met local planning guidance and policies. The report found that there would be “suitable levels of separation between the proposed dwellings and the existing properties”. The report recommended a grant of permission.
23. Because of the considerable number of objections received, the proposal was considered by the Council’s regulatory committee. Mr C attended a committee meeting in April 2021 and again voiced his concerns. At that meeting, the developer’s agent said the required separation distance according to policy was 13 metres but, in this case, it would be 16.7 metres.
24. The committee was concerned, though, about the impact of House A on Mr and Mrs C and their close neighbours and decided to adjourn to a future meeting.
25. Before the next committee meeting, the developer amended the proposal to replace the proposed plan for House A, with revised proposals which, it said, would reduce the impact on surrounding properties. House A would be slightly smaller and slightly further away from Mr and Mrs C’s house which would decrease the impact on his and other houses nearby.
26. A planning officer wrote a report on the revised proposal. It set out the proposed changes since the previous meeting. At the time it was written, there had been no objections to the new proposal. However, the report considered the same objections as before: too close to existing properties, too large, and so forth. The officer again recommended a grant of permission.
27. The application came before the planning committee again in June 2021. Mr C again addressed the meeting. He had prepared a section plan which he said showed his own house and House A and the 1.5m height difference between them. He says it was to scale and accurate.
28. Mr C says the developer addressed the meeting and presented a drawing of the proposed new plan for House A. Mr C says the developer denied there was a 1.5 metre height difference between House A and Mr and Mrs C’s house. Mr C says, the developer agreed it would build according to Plan B. Mr C says the committee accepted this and granted permission.
29. The Council later released minutes of the meeting. Mr C says these contained no mention of:
1. The revised separation distance between House A and Mr C’s house, or
2. Plan B showing the new roof profile.
30. Mr C wrote to the Council in early August 2021. He wrote to planning officers and to the chairman of the committee. The chairman apologised and said the minutes would be amended.
31. Mr C corresponded frequently with a senior planning officer, Officer O. Officer O accepted that there had been a failure to include reference to the revised plans in the decision. He said he would speak to the developer about it but said it would make no difference to what had been agreed. He said he would write to the developer to say so.
32. Officer O later learned the developer would not agree to attach Plan B to the application because it was “illustrative only”. Officer O later learned that the minutes of the June meeting had been approved and could not now be altered. He wrote to Mr C to tell him.
33. Mr C says there was no mention of this phrase at the June committee meeting and it was understood by the Chairman and the committee that it was Plan B specifically which had been approved.
34. Mr C corresponded frequently with Officer O during late 2021. On one occasion, he told Mr C that the developer had agreed that the minimum separation distance would be 16.7 metres and that it would use the building type specified in Plan B.
35. However, Mr C was not satisfied with this and continued to press for better documentation of the developer’s obligations. He said he wanted to “hold [the developer] to account”.
36. This matter seemed to have been resolved when Mr C wrote to the Council in November 2021 about elevation levels on the site. He asked for confirmation that the two properties would be level. He noted that it seemed that House A was, in fact, 1.5m higher than his. Officer O wrote to Mr C in December 2021 saying that he could not say what the elevation was but said that the developer had been clear at the meeting that Plan B was for illustrative purposes only.
37. In January 2022, Mr C’s councillor emailed Officer O saying that she felt that the Council had let Mr and Mrs C down. She said that she had been at the meeting where the developer had asked that Mr C’s drawing should be disregarded as its accuracy was not guaranteed. She said, “the decision made by the Committee was based on the accuracy of the [developer’s] diagram’.
38. Officer O told the councillor that he had agreed in principle to a meeting with Mr C and the developer at the site.
39. Mr C complained to the Council in February 2022 raising all the concerns set out above. He asked the Council to issue a revocation/modification order to overturn the grant of planning permission for House A.
40. Mr C received a response, written by Officer O, in March 2022. It said:
1. He had approached the developer and asked to insert a commitment to Plan B in the planning permission but the developer had refused to do so saying Plan B was “illustrative only”. Officer O said he could not challenge that decision.
2. Plan B was “illustrative only” because it did not show the land accurately. The developer had not surveyed it at that time. However, the amended application contained conditions that House A would have to be an increased distance from Mr C’s house and must be of the type shown in Plan B so these conditions would be enforceable. The increased separation distance would be sufficient, according national and local planning guidance.
3. While Mr C’s detailed objections had not been included in the officer’s report, this was not usual practice and the officer had listed the objections to the application at the hearing.
4. The developer told Officer O that they had not surveyed the site at the time of the June meeting but had now done so and confirmed that it was 1.5 metres higher than Mr C’s property.
5. Mr C had had an opportunity to present his objections at both committee meetings. A summary of objections was contained in both officer reports. Mr C’s documents were circulated to committee members.
6. Minutes of Council meetings could only be amended up to the point where members are invited to approve them. Thereafter, they cannot be altered.
7. The Council did not intend to issue a revocation or modification order.
41. Mr C escalated his complaint to Stage two of the Council’s internal complaints procedure. He objected to the Stage one response on the grounds that it did not address his concerns and had not been made by an independent officer but rather by Officer O, with whom Mr C had been corresponding for eight months.
42. Mr C requested that the Council should amend the minutes and issue a revocation or modification order
43. The Council responded in April 2022. Below I have written Mr C’s heads of complaint with the Council’s response.
1. Planning officer’s report did not include reference to Mr C’s objections: The Council accepted that this was the case. It said, due to the short timeframe, it had not been possible to include them. However, he had raised his concerns before the committee.
2. Lack of detail in the minutes: There was a summary of the agreed facts in the minutes. It is not necessary to record every detail.
3. No reference to Plan B in the minutes. Plan B “was not moved/minute-d as an actual approved plan”.
4. Assurance from committee chair that minutes would be amended: The minutes were amended after consultation but the Council decided not to make reference to Plan B in the revised minutes.
44. Mr C asked the Council to consider his complaint under its discretionary Stage three complaint process which is a discretionary stage. The Council refused and referred him to the Ombudsman.

Was there fault causing injustice?

45. We cannot find fault with a Council decision because a complainant disagrees with it. Mr C believes that the building of House A will have a severe impact on his enjoyment of his home. However, it is the role of the planning system, not the Ombudsman, to decide on an application. My role is to determine whether there has been administrative fault.

Misleading of planning committee

46. Council planning officers did not mislead the committee. The developer presented a plan which, it is accepted, did not show the correct height differential. However, Mr C addressed the committee on that point.
47. The planning officer’s reports considered Mr C’s objections to House A, which were presented by a professional planning consultant, that House A would overshadow his house. Nonetheless, the planning officer’s report found that permission should be granted.
48. Mr C has said that his objections were not included in the second officer’s report. This is true. However, the officer, and Mr C, raised them at the second committee meeting.
49. Mr C has provided evidence from a councillor who says the committee might have made a different decision if the developer had not stated that there was no height differential between the properties. I cannot say whether this would have been the case. However, it is clear that any fault here was on the part of the developer and not the Councill. I would repeat that many objections to the application were made by people who gave the height differential as their reason. The officer’s report considered these and found that the impact fell within acceptable limits.
50. In response to my enquiries, the Council has stated that the separation difference between the two properties, even allowing for a 1.5 metre difference in elevation is sufficient according to Council guidance.
51. For these reasons, it is difficult to see why the committee, if properly directed, would have refused the application.
52. Mr C also believes the fact that the commitment to Plan B is not recorded in the minutes of the meeting or the grant of permission leaves room for the developer to renege on its commitment. However, as the Council has pointed out, the house type and separation distance are specified in the grant of permission so this fear does not seem well founded.
53. However, the Council has accepted there was an administrative error in that the revised plans were not referenced on the decision notice. This was fault. However, as the Council has stated, this will make no difference and could be remedied either by asking the developer to amend and reissue the decision statement. The developer refused. The Council then wrote to the developer to clarify the position which, it said, remained unchanged. Therefore, in my view, and on the evidence I have seen, this fault caused no injustice.

Agreeing to consult Mr and Mrs C about amendments to plans and then failing to do so

54. The records show that Officer O offered to meet Mr and Mrs C with the developer at the site in early 2022. They also show that Officer O corresponded frequently with Mr C. I do not find fault.

Refusal to rectify errors made in the minutes

55. Minutes of planning committee meetings need not contain every detail of the decision-making process. We have said they must include reference to the reasons for imposing conditions and reasons for refusing permission or rejecting a planning officer’s advice. In this case, the minutes are extremely detailed.
56. Mr C has said they do not contain reference to Plan B or his illustrative drawing. This is not a matter for which I can find the Council at fault.
57. Mr C says the Council agreed to amend the minutes but later changed their mind. I have looked at the correspondence and see that the Council did not agree to alter the minutes. The chairman of the committee said he had asked Officer O to look into it. No commitment was given. Officer O later told Mr C he could not alter them because, once minutes have been agreed, they cannot be altered. I do not, therefore, find fault.

Poor complaint responses and communication

58. Officer O took great time and trouble in responding to Mr C at great length. Mr C has criticised these responses as “verbose”. That is not a matter on which I have a view. The Council responded appropriately to Mr C’s concerns.

Delay

59. There was no significant delay. I do not find fault.

A lack of impartiality

60. There is no evidence of any lack of impartiality in this case. Outline planning permission had already been granted in 2012 so the principle of development at the site was not at stake. It was the details of the development that were under consideration.
61. Mr C believes that the developer misled the committee. Again, if it did, this was not evidence of Council impartiality. The officer’s report considered the impact of the proposals on local people. It considered that these impacts fell within acceptable limits. Whether that was the case is not a matter for the Ombudsman. It is, in any event, a matter of judgment with which the Ombudsman cannot generally find fault.

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Summary

62. I have found that the Council was at fault for administrative errors during the administration of the planning process. However, these were dealt with by the Council and have caused Mr C no injustice. There is no need for any remedy.

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Final decision

63. I have found fault by the Council, but this caused no injustice to Mr and Mrs C. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman