Summary: Mr and Mrs C complain the Council failed to properly consider a planning application which has caused them upset, professional costs and allowed an unacceptable development. We have found fault by the Council but consider the agreed action of an apology, £500 and a review of procedures provides a suitable remedy.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs C, complain the Council failed to properly consider a planning application for an extension at the front of a neighbouring property and to provide a pitched roof to an existing detached garage. In particular, Mr and Mrs C say the Council accepted inaccurate plans and failed to respond to their requests for contact and a site visit about the matter.
2. Mr and Mrs C say because of the Council's fault, they have suffered unnecessary stress and time and trouble and have incurred avoidable professional costs. Mr and Mrs C also say they will suffer from an unacceptable impact on their residential amenity and uncertainty about future development given the planning permission that remains in place.

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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. 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)
5. If you employ a professional person to help you make your complaint, such as a solicitor or surveyor, we will only ask the council or care provider to pay their fee in exceptional circumstances. This is because people do not usually need professional help to put a complaint to us.
6. 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

7. I read the papers provided by Mr and Mrs C and discussed the complaint with Mrs C. I have considered the Council’s correspondence with Mr and Mrs C and the information on the Council’s planning website. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Consideration of applications

8. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
9. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
10. 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, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
12. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application.

Ownership certificates

13. Section 65 of the Town and Country Planning Act 1990 requires that a council “shall not entertain” a planning application that does not meet the certification requirements set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015. An application is not valid, and therefore cannot be determined by the local planning authority, unless the relevant certificate has been completed. It also says that anyone who knowingly or recklessly issues a false or misleading certificate is guilty of an offence.
14. Article 13 requires planning applicants to give notice of the application to any other person who is an owner of the land to which the application relates. This can be done by:
1. serving the notice on every such person whose name and address is known to the applicant; and
2. 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.
15. Government guidance sets out which ownership certificate should be signed:

Certificate A – Sole Ownership and no agricultural tenants. This should only be completed if the applicant is the sole owner of the land to which the application relates and there are no agricultural tenants.

Certificate B – Shared Ownership (All other owners/agricultural tenants known). This should be completed if the applicant is not the sole owner, or if there are agricultural tenants, and the applicant knows the names and addresses of all the other owners and/or agricultural tenants.

Certificate C – Shared Ownership (Some other owners/agricultural tenants known). This should be completed if the applicant does not own all of the land to which the application relates and does not know the name and address of all of the owners and/or agricultural tenants.

Certificate D – Shared Ownership (None of the other owners/agricultural tenants known). This should be completed if the applicant does not own all of the land to which the application relates and does not know the names and addresses of any of the owners and/or agricultural tenants.

16. Courts can quash a planning permission granted following submission of an incorrect certificate. Case law has established a Court may not always quash planning permission following submission of an incorrect certificate. This is where the Court has found no prejudice to other landowners.

Key events

17. The Council received an application in early 2021 to build a front single storey extension and provide a pitched roof to an existing detached garage. Mr and Mrs C live next door to the application site. The application contained a certificate of ownership – certificate A. The application also stated no trees or hedges would be removed as part of the proposals.
18. Mr and Mrs C contacted the case officer about the accuracy of the plans submitted and sought a site visit. Mr and Mrs C say they made several attempts to contact the case officer and left a message but did not receive a reply.
19. Mr and Mrs C made a representation to the Council within the publicity period which ended at the end of March. Mr and Mrs C objected to the proposals and stated the drawings submitted with the application were incorrect and that part of the proposal would encroach onto land they owned. Mr and Mrs C provided a diagram showing the existing garage was incorrectly shown as square to the main house when it was at an angle and Land Registry details. Mr and Mrs C also stated the height and mass of the extension so close to their boundary and property would be overbearing and cause overshadowing. Mr and Mrs C noted the north west corner of the extension would be only 700mm from their boundary and directly opposite their east facing window which was the only window serving their dining room. Mr and Mrs C provided another diagram to show the impact of the extension on this window which they said would obstruct daylight and morning sunlight particularly during the winter months and harm their outlook. Mr and Mrs C also said the proposed changes to the garage roof would double its height which would also impact the same window and their glazed entrance door (via their glazed lean-to porch) which provided light to their kitchen. The location of the porch was also provided on the diagram provided. Mr and Mrs C further noted there was an increase in levels between the two properties which would aggravate the impact. Mr and Mrs C provided a photograph showing direct sunlight entering the dining room window over a laurel hedge. The hedge runs across the width of the window and is the same height as the roof of the existing garage which can just be seen to the far left of the window. Mr and Mrs C provided another diagram showing the impact on this window from the proposed extension which shows it across two thirds of the window and significantly above the height of the hedge.
20. The Parish Council also objected to the application. This objection noted the statement in the application that no hedges were to be removed but that the applicant had advised Mr and Mrs C of the intention to replace the hedge with a fence. It also refers to a previous planning application in 2020 at the same site which was refused. The objection further noted the proposals would harm the amenity and light of Mr and Mrs C’s property contrary to the Council’s Policy that required designs to safeguard residential amenity for existing and proposed residents. The Parish Council also objected to the proposed materials which they suggested were not in keeping with the original building. Finally, the Parish Council noted that Mr and Mrs C had raised issues about the property boundaries and potential encroachment from the proposals which the Parish Council suggested the Council should check and noted previous applications which had been refused or withdrawn highlighted the difficulties posed by such close proximity of the two properties.
21. The Council’s Tree Officer also commented on the application and noted a mature oak tree to the front of the property was subject to a tree protection order but considered there was enough distance for this not to be affected by the proposed development although any remedial works to the tree to allow equipment access would require a separate application.
22. The case officer visited the site in October and the Council has provided photographs from this visit. These show the existing garage and its relationship with Mr and Mrs C’s property including their glazed lean-to porch and the existing laurel hedge which was to the height of the eaves of the garage and a garden tree both along the boundary.
23. The case officer also contacted the applicant’s agent for their comments on the representations from Mr and Mrs C. The agent provided comments to the Council in November. The agent noted the orientation of the garage was to some degree irrelevant as the boundary wall was not being altered. The agent stated they had measured the boundaries on site in their current physical location but could not comment on Land Registry information without further details. The agent accepted the gutter would overhang the current wall by a small amount and proposed an internal gutter within the roof space which could be conditioned as part of any planning permission. The agent also provided their views on the impact on Mr and Mrs C’s amenity and stated the extension would be 900mm not 700mm from their boundary at the centre of the hedge and estimated the eaves would be 3 metres from the window shown on their diagram. The agent described the orientation of this window as NNE and gave their view that it did not benefit from direct light and the photograph provided must have been at dawn and any sunlight would be fleeting. The agent considered the diagram provided by Mr and Mrs C showing the impact of the extension on this window was inaccurate and misleading. The agent further noted the impact of the existing six foot laurel hedge on the window. The agent provided details of the distances involved to support their view there would be no unacceptable overshadowing or overbearing development. The agent noted the glazed lean to was a secondary light source to the existing kitchen window to the front of the property. The agent noted any changes in level between the two properties was minimal.
24. The case officer’s delegated report set out the details of the proposals and referred to the relationship with Mr and Mrs C’s property noting the close proximity. The report records the proposals did not introduce any windows to the elevation facing Mr and Mrs C’s property other than a small roof light and so concluded there were no issues of overlooking. The report set out the distance to the boundary of Mr and Mrs C’s property as being 0.94 metres and both the eaves (at 2.5 metres high) and the ridge (at 4.4 metres high) would be over 3 metres from Mr and Mrs C’s property. The case officer assessed the scale of the proposal, the existing boundary hedge and distances involved would mean the development was not overbearing. The case officer also set out their consideration of Mr and Mrs C’s dining room window and noted this faced north east (mainly east) and was 2 metres from the boundary which consisted of a hedge. The case officer accepted the proposal would impact on the amount of light to this window but assessed the development would not unacceptably harm the daylight or outlook. The case officer also accepted the proposals would introduce additional shading to Mr and Mrs C’s property but did not consider this to be excessive or that it would cause an unacceptable reduction in daylight or sunlight. The case officer concluded there was no unacceptable harm to the outlook, daylight or sunlight to Mr and Mrs C’s property from the proposals. The report also provided a summary of the representations received. This included the suggestion that the applicant’s intended to remove the boundary hedge. The case officer noted the applicant’s agent had confirmed this was not the case.
25. The Council granted planning permission subject to conditions towards the end of 2021. The decision notice did not include a condition about retaining the hedge or about the internal drainage solution proposed by the applicant’s agent.
26. Mr and Mrs C complained to the Council towards the end of January 2022. In doing so they sought planning advice at a cost of £640.
27. The Council visited Mr and Mrs C in early March and sent a holding reply towards the end of March. The Council accepted the distances set out in the case officer’s report relating to the distance between the side of Mr and Mrs C’s property and the proposed replacement garage and extension were not correct as they were based on inaccurate plans. The Council accepted its decision was based on inaccurate plans which could have been addressed through a site visit to their property and apologised this did not take place. However, the Council considered even at a closer proximity to that shown on the plans and with the benefit of visiting Mr and Mrs C’s property, the impacts on their residential amenity would not be unacceptable in planning terms and would not have led to a refusal of planning permission. The Council also apologised that the suggestion of an internal gutter by the applicant’s agent to address encroachment issues was not included as a condition on the decision notice for the planning permission. The Council also noted it may not just be the gutter that encroached on to Mr and Mrs C’s land. The Council was to seek further advice about the validity of the permission that it had granted and would provide an update in due course. The Council gave its initial view that an appropriate remedy would be for the application to be re-submitted with the garage and extension correctly shown on a block plan which accurately plotted the land ownership and relationship of Mr and Mrs C’s property to the boundary and the proposals.
28. Mr and Mrs C sought further professional advice during March in relation to the above at a cost of £120.
29. Mr and Mrs C chased the Council in April and May as they had not received any further update and work appeared to be starting on the development.
30. The Council provided a further response to Mr and Mrs C in early June. The Council explained it had met the applicant’s agent and visited the application site. The Council confirmed its view the submitted plans were incorrect in relation to the position of the existing garage. However, the Council accepted that the proposals did not change the footprint of the garage only remodelling to its roof. The Council noted the case officer had understood the relationship between the garage and Mr and Mrs C’s property and so any inaccuracy here did not affect their assessment. The Council said the agent had advised their client did not now intend to proceed with the roof changes. The Council was satisfied from its further visit that the extension could be constructed in accordance with the approved plans and remained of the view it was acceptable in planning terms. The Council proposed no further action.

My consideration

31. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
32. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

33. The Council has already accepted the case officer’s delegated report contained incorrect distance measurements as they were based on inaccurate plans. The Council has further accepted this issue could have been addressed if the case officer had revisited the site. I consider this constitutes fault particularly given the concerns clearly expressed about this issue by Mr and Mrs C in their representation.
34. Mr and Mrs C also consider they should have been given an opportunity to comment on the agent’s November email. It was for the case officer to weigh the representation from Mr and Mrs C with the submitted information from the applicant including the further comments from the agent and reach a view on the acceptability or otherwise of the proposals. I see no fault here.
35. The case officer’s report also does not include the relevant planning history or any commentary on the representations about inaccurate drawings, boundary/ownership issues or encroachment. The report should also have provided an assessment of the other representations particularly about the accuracy of the drawings even if the other matters regarding boundaries and encroachment were not considered material planning considerations but rather private matters. I would also have expected to see reference to the internal drainage solution proposed by the applicant’s agent and the reasoning if the case officer did not consider it was necessary to include a condition requiring this. Although the Council has subsequently explained that the existing laurel hedge was not a critical factor in deciding whether the extension was acceptable or not as it could have been removed and replaced with a fence or wall at any time under permitted development rights which would still have provided suitable mitigation, it would have been preferable to have explained this in the report.
36. I note the Design and Access Statement that accompanied the application refers directly to the previous 2020 refusal and that the new application was to satisfy the same need for an additional bedroom as the previous loft conversion without the overbearing issues which resulted in the previous refusal. I am satisfied the case officer was aware of the relevant planning history and considered this when reaching their decision. However, this should have been set out in the delegated report.
37. Land ownership is not a relevant planning consideration. In other words, it is not something that counts in favour or against a planning application. But this does not mean the question of land ownership has no relevance to the planning process. Because the law is clear that applicants must produce certification to show whether they are building on land they own or which is in third party ownership. The Council must pay attention to which certificate the applicant provides as it must not “entertain” an application with incorrect certification. There is no discretion in that. The law uses the word ‘shall’, meaning it is mandatory on the Council to reject such an application.
38. I accept that in practice the Council will rely first on the word of the applicant that they have produced the correct certificate. I also accept the Council is not responsible for resolving boundary disputes where neighbouring landowners disagree. But where someone challenges land ownership the Council must have some process not only for raising that with the applicant but also bringing its own judgement to bear on the matter. Because there will also be cases where the land ownership position is obvious. I cannot see the Council did so here. Without such further evidence, I cannot see how the Council could decide the Certificate A was appropriate. In which case it was also fault for the Council to proceed to determine the application. Because as I have noted above where the Council receives the wrong certificate it has no discretion. It should not entertain the application.
39. I have to consider if this caused any injustice caused to Mr and Mrs C. I accept that certification serves as a form of notice to landowners affected by planning applications. Mr and Mrs C were fully aware of the planning application and made representations. Therefore, the Council’s fault in accepting the Certificate A without further enquiries made no difference to the outcome of the application. It would have made the same decision on the merits of the planning application had the applicant produced a Certificate B as that consideration would be neutral of the land ownership issue.
40. I do not consider it is appropriate to recommend any reconsideration of the planning permission on these grounds. This is after taking account of the precedent of Court decisions which have usually allowed planning permissions to stand notwithstanding where a Certificate A has been presented in error; so long as the neighbouring landowner was aware of the planning application.
41. I am also satisfied, on balance, that there would not have been a different outcome to the application but for the other fault identified above. The case officer was clearly aware of the relationship and close proximity of the two properties from their site visit and their report provides an assessment of the impact on Mr and Mrs C’s amenity including specific reference to their dining room window.
42. Mr and Mrs C say that although the applicant has stated they do not intend to continue with the garage roof work this permission remains in place and could be implemented at any time now the extension work has started. They are concerned about the ongoing uncertainty in terms of possible encroachment.
43. The planning permission is not permission for the developer to build or encroach on land owned by Mr and Mrs C. The applicant’s agent had suggested a method to avoid encroachment from the guttering and I do not see this issue could reasonably have resulted in a refusal of permission. Any remaining ownership issues would need to be resolved between the two parties.
44. There followed a delay between the Council’s initial response to the complaint in March and its further response in June which confirmed the Council proposed no further action. I consider this delay constitutes fault which led to raised expectations in terms of a potential remedy to Mr and Mrs C.
45. The Ombudsman provides a free service and it would not usually be necessary to instruct a solicitor or planning consultant to assist in making a complaint or challenging a planning authority’s decision. However, where matters involved were of significant complexity, we may consider reimbursement of professional fees.
46. I do consider that because of the fault identified above, Mr and Mrs C have been put to unnecessary time and trouble trying to understand how the Council had considered the impact of the development on their home. In the circumstances of this complaint, I also consider it reasonable for the Council to contribute to the professional costs Mr and Mrs C incurred.

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Agreed action

47. The Council has agreed the following action to remedy the injustice caused to Mr and Mrs C:
1. write to Mr and Mrs C to apologise for the faults identified in this investigation within one month of my final decision;
2. pay Mr and Mrs C £500 in recognition of their distress, time and trouble and to reimburse some of the professional fees they incurred within one month of my final decision;
3. issue clear guidance to staff on the approach it expects them to take when a certificate accompanying a planning application is effectively challenged due to land ownership claims which must involve a degree of scrutiny and decision making by the Council and include keeping an audit trail of the same within two months of my decision; and
4. review its complaint procedure within two months of my decision to ensure complainants receive a timely response at each stage and are kept informed when this is not possible.

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Final decision

48. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman