Summary: Mr X complained about the Council’s decision to approve a planning application on land next to his home. There was evidence of fault in the way the decision was made. The Council has agreed to take action to avoid recurrence of the fault.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application for development on his neighbour’s land. Mr X said the approval was based on inaccurate information and has led to an oversized building.
2. Mr X would like the decision revoked.
3. Mr X is also unhappy that the Council failed to respond to some of his letters and took too long to deal with his complaint.

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The Ombudsman’s role and powers

4. 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)
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 read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer report.
7. I gave the Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. There are areas of land designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
13. Government guidance sets out exceptions to development in the green belt, which include:
• buildings for agriculture and forestry;
• facilities for sport and recreation;
• alterations to or replacements of existing buildings;
• limited infilling or redevelopment of previously used sites (brownfield sites).
14. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer 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.
15. 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.
16. Councils have the power to revoke planning permissions they grant or that are granted by development orders (eg permitted development orders) before the development is completed. If revocation is successful, the developer may claim compensation for works and other abortive costs that were incurred between the grant of approval and revocation. The decision of whether to revoke is a matter for the Council’s discretion.

What happened

17. Mr X lives in an area of green belt next to a river. His neighbour applied for planning permission to demolish an existing house and build a larger replacement. The new building, like many new buildings in the area, was raised to avoid flood damage. The area underneath the house (the ‘undercroft’) was not to be used for habitable purposes.
18. The Council refused the application because the building’s size, mass and bulk would have an adverse impact on green belt land. In making its decision, the Council took account of policy that required new buildings within certain sizes (between 240 to 720 cubic metres) should not be more than 50% of the size of the original building.
19. The neighbour submitted a revised application, which was slightly smaller in volume. The Council’s planning case officer wrote a report, which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours (including Mr X’s) and other consultees;
• details of planning policy and guidance;
• an appraisal of the main planning considerations, including impact on the green belt, flood risk, the quality of design, the amenity of residents and transport issues; and
• the officer’s recommendation to approve the application, subject to planning conditions.
20. In relation to green belt issues and calculations, the case officer set out the existing and proposed building volume figures. The officer said that the increase was a 27% increase in volume and so accords with green belt policy requirements.
21. Before the decision was made, Mr X noticed a revised plan had been submitted. He sent further comments, including to point out that the figures used in the case officer report were incorrect.
22. Despite Mr X’s concerns, the application was approved.
23. After writing to the planning department again without response, Mr X complained to the Council through its complaints procedure. Mr X put his own figures and calculations, including the undercroft area, and believed this showed the increase in volume was beyond the 50% policy limit.
24. At stage 1 of the procedure, the Council accepted that there were flaws in the case officer report, because:
• the figure used by the case officer (which had been provided by the neighbour’s agent) was incorrect; and
• the case officer had discounted the undercroft area in the volume calculation, as it was purely a result of the building being raised to avoid flooding. This should have been explained in the report, but was not.
25. The Council apologised for its mistakes in calculations and explanations of the different approach it had taken between the first and second applications, but said that it was satisfied the development did comply with green belt policy.
26. Mr X complained that the undercroft had been part of the calculation for the first application, which was refused. He provided his own calculations, removing the area below floor level of the building to be demolished.
27. The Council responded to say it did not agree with this methodology. The Council accepted the floor level of the original building was raised, in terms of considering visual impact, openness and bulk, it had no undercroft, and so calculations should include measurements from ground level, up.
28. Mr X is also unhappy with the way the Council dealt with his letters and complaints. The Council did respond to Mr X through its complaints procedure and did apologise for delays in getting back to him.

My findings

Planning matters

29. The case officer report includes figures the Council now accepts are incorrect. It has also acknowledged its decision lacked important information about how the building volume calculations were made.
30. Both the incorrect figures used and the lack of explanation about what areas were included in calculations is fault.
31. When we find fault, we need to decide whether it caused an injustice that should be remedied. Mr X would like the Council to revoke its decision.
32. Though there is fault, I cannot say that the outcome of the Council’s planning decision would have been different. Decisions on whether and how to apply policy guidance is a matter for councils to decide. The fault here is that the Council did not properly evidence or explain its decision in its case officer’s report, not that it has made a decision that was beyond its powers or outside its discretion.
33. I can understand why Mr X was concerned, disappointed, frustrated and confused by the Council’s decision, which made no sense until it was explained during the complaints process. The Council has already apologised to him, and I see no need to add a further remedy. However, I will ask the Council to consider further action to avoid recurrence of the faults I found.

Complaint handling

34. Mr X is unhappy that planning officers did not respond to some of his letters. While I would not condone any discourtesy, we do not routinely investigate complaints like this. The remedy for a failure to respond to a letter to a council is to complain through its complaints procedure.
35. We expect councils to have policies that set out how they deal with complaints. Complaints procedures will often have separate stages. Once a member of the public has exhausted the complaints process, they may bring their complaint to the Ombudsman.
36. We do sometimes investigate complaints procedures, even if there is no personal injustice to the complainant. For example, we may do this if we think it is likely there are significant or systemic complaints process failures that could cause injustice to others.
37. I have checked our records and found no evidence to suggest systemic fault that would justify further investigation.

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Agreed action

38. To avoid recurrence of the faults I found, the Council has agreed to check its working practices and procedures and decide whether improvements are necessary in relation to ensuring:
1. case officer reports contain accurate and sufficient information that explains its processes and reasons; and
2. adequate checking procedures to ensure information is accurate and adequate, before decisions are made.
39. The Council will provide us with evidence it has complied with the above actions within two months from the date of our final decision.

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Final decision

40. I found fault which could recur. The personal injustice to Mr X was already remedied by the Council’s admission and apology. The Council accepted my recommendations to improve its service, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman