Summary: Mr X complained about the Council’s officers approving development changing an agricultural building to housing use near his home. We found fault as the Council’s officers should have referred the application to the planning committee for decision. However, we did not find this caused Mr X injustice as the Council’s planning committee probably would have made the same decision.

The complaint

1. Mr X said the Council failed to follow the correct procedure and refer a prior approval application, to convert an agricultural building to housing use, to councillors for a decision.
2. Mr X also said the development did not comply with permitted development rules and the application included late and inconsistent information about the proposals.
3. Mr X said if the Council had properly considered the application, it would have been refused. Approving the development had reduced the value of his home and negatively impacted on his view and the local peaceful environment.
4. Mr X wanted the Council to revoke its decision approving the development. The developer would then need to reapply allowing the Council to correctly and fairly consider the development proposals.

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The Ombudsman’s role and powers

5. 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)
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:

• considered Mr X’s complaint and supporting papers;
• talked to Mr X about the complaint;
• considered the complaint correspondence between Mr X and the Council;
• considered information about the development available on the Council’s website; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

Permitted development and prior approval

8. Most development, which includes a material change of use, needs express planning permission from the local council. However, the law provides blanket planning permission (‘permitted development’) for many minor works. The Town and Country Planning (General Permitted Development) (England) Order 2015, as amended (‘the Order’) contains information about permitted development. Councils usually have no control over permitted development. But permitted development may be subject to the council’s ‘prior approval’ to specified matters before development may proceed. Councils cannot consider any other matters when deciding prior approval applications. The legal rules for prior approval are much less prescriptive than those for applications needing a council's express planning permission. The Government's Planning Practice Guidance say this is deliberate as prior approval is a light touch process applying where the principle of development has been established. 
9. Class Q of Part 3 to Schedule 2 of the Order requires prior approval to change an agricultural building to housing use (and for building work reasonably needed for that conversion). The courts have said, in the planning context, there is a difference between ‘conversion’ and ‘rebuilding’ and “…it is a matter of legitimate planning judgement as to where the line is drawn”. The courts also said ‘the extent of proposed works is a relevant but not dispositive consideration’ in deciding whether development is a conversion or rebuild. And work might be extensive but not disqualify proposals as permitted development.
10. The Order sets out the procedure for Class Q prior approval applications. Applications must be supported by a written description of the proposals, including any building operations, and a plan of the site and the proposals. Councils may ask the developer for information they reasonably need to decide applications, for example, details of proposed building work. The Order also says councils must publicise applications and take account of representations they receive. Councils have 56 days to decide applications and the developer has a legal right to appeal any refusal notice.  
11. Class Q sets out 14 ‘tests’ for a proposal to be permitted development. If a proposal meets these tests, councils must then consider whether their approval is needed on seven specified matters, for example, the design or external appearance of the building.

Council decision making

12. Council officers, with formal delegated authority from their councils, decide most planning applications. However, councillors appointed to their council’s planning committee decide some, usually major development, applications. Each council will set out their own rules for which applications councillors must and may decide. The rules usually provide for councillors to ‘call in’ applications normally decided by officers for determination by the planning committee.
13. The Council’s rules say, where a Parish or Town Council raises valid planning reasons for taking a contrary view to its officer’s recommendation, its Planning Control Committee (‘the Committee’) will decide the application. At least one ward councillor must support the Parish/Town Council’s views.

What happened

14. The Council received a Class Q prior approval application to change an agricultural building to housing use (‘the Application’). Written information supporting the Application said the building was “well-built” and a structural survey had confirmed it was “structurally sound”. The papers also said the conversion would keep the frame, wall cladding and roof of the building. And windows, roof lights, and doors would be inserted to provide light, access and means of escape. Plans accompanying the Application reflected the written information.
15. The Council publicised the Application and received objections to the proposals including from Mr X and the Parish Council. Mr X’s objections included the proposals not being permitted development because the building was not habitable as it had an asbestos roof and wall cladding. Mr X said the asbestos could not remain for safety reasons and removing it would mean too little of the building remained to be a ‘conversion’. The Parish Council and Mr X also asked a ward councillor to ‘call in’ the Application for decision by the Committee.
16. The developer sent the structural survey (‘the Survey’) to the Council. The Survey did not include the word ‘asbestos’ but referred to “new roof coverings”.
17. The Council prepared a report assessing the Application (‘the Report’). The Report summarised third party comments including objections from Mr X and the Parish Council. The summary included objections about the asbestos roof and that demolition of about 30% of the building meant the proposals could not be permitted development. The Report then identified the key issues for deciding the Application. Firstly, the Council needed to decide whether the proposal met the legal rules for Class Q permitted development. And if it did, secondly, the Council had to decide whether its prior approval was needed for the seven matters specified in Class Q.
18. The Report set out the wording for Class Q permitted development, which included “building operations reasonably necessary to convert” an agricultural building for housing use. The Report did not comment on whether the proposals represented a ‘conversion’. The Report went through the 14 Class Q ‘tests’ and found the proposals complied with them, including that works (for example, new windows and doors) were ‘reasonably necessary’. The Report therefore found the proposals met the legal rules to be Class Q permitted development.
19. The Report then considered whether the Council’s approval was needed for any of the seven specified conditions. On the first four conditions, the Report found no unreasonable transport and highway impacts; no harmful noise impacts; no objections from environmental health about on site contamination risks; and the site was in the lowest flood risk category. On the fifth condition, the Report did not find the site impractical or undesirable for housing use. On the sixth condition, the Report considered the proposed external appearance of the building, which retained the roof, acceptable. Finally, the Report found the proposals complied with the requirement for habitable rooms to have adequate natural light. The Report recommended the Application proposals receive prior approval.
20. A senior Council officer considered the Report and accepted its recommendation. The Council issued a decision notice giving prior approval to the proposals as shown in the Application. The decision notice did not refer to the Survey received after submission of the Application.
21. Contact between Council officers and a ward councillor followed. This led to officers apologising for their delay which had prevented the councillor from ‘calling in’ the Application for a Committee decision within the 56 day time target.
22. Mr X then complained. In the correspondence that followed, Mr X’s position, in summary, was:

• the Council’s failure to follow the ‘call in’ procedure meant he could not put his concerns to the Committee;
• councillors regularly overturned officer planning recommendations and, here, would have refused the Application;
• the Application proposals were not permitted development and needed a full planning application, which would ensure the setting of his home was protected;
• the Survey, which was inconsistent with the Application in referring to removal of the roof, was submitted too late for people to comment on it; and
• the Council had failed to address concerns about asbestos in the building.

Mr X said the Council should revoke the approval, get the developer to provide an asbestos survey and put any new application to the Committee for decision.

23. In summary, the Council’s response to the complaint was:

• it had apologised for the officers’ mistake in not triggering the ‘call in’ procedure in time for the Committee to decide the Application;
• officers had received training on the ‘call in’ procedure to prevent similar problems in future;
• it did not have time, within the 56 day decision target, to consult on the Survey;
• while there were inconsistencies between the Application and Survey about the roof, the proposal approved by the decision notice kept the existing roof;
• works not approved by the decision notice would breach planning control and be subject to enforcement action (although it would likely find replacement of an asbestos roof ‘reasonably necessary’ work);
• the law required a specialist, licensed contractor to remove asbestos and the developer had confirmed they were aware of the relevant legal duties;
• the Application proposals met the legal rules for permitted development, which allowed roofs, external walls, windows, and doors to installed or replaced where reasonably necessary; and
• while there was room for interpreting ‘conversion’ and ‘reasonably necessary’ works, there was no reason to refuse the Application, and the Committee would have made the same decision as officers.

The Council apologised for its handling of the Application but said its decision followed the Report’s full and correct assessment of the proposals against Class Q. The Council said it therefore had no reason to revoke the decision.

Consideration

Introduction

24. We are not an appeal body and so do not take a second look at a planning decision to decide if it was right or wrong. Our role is to consider whether the Council acted with fault in reaching its decision. Where we find evidence of fault, we consider if this is likely to have affected the decision and caused the complainant significant injustice.
25. As a publicly funded body we must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether there is fault causing injustice. This means we do not try to answer every question or address each detailed point raised by the complainant about what a council said and did. So, we cannot always respond to complaints in the detail people might want.

The Application

26. The Council accepted it made a mistake in not giving the ward councillor sufficient time and opportunity to ‘call in’ the Application for decision by the Committee. So, there is fault here. So, the key issue for me is whether the failure to ‘call in’ the Application is likely to have affected the Council’s decision.
27. Mr X’s position is the failure to call in affected the decision as the Committee would have refused the Application finding the proposals were not Class Q permitted development. The Council points to the Report assessment showing the proposals complied with Class Q and so the Committee would have approved the Application. None of us can know what decision the Committee would have made. And, inevitably, there will be uncertainty in seeking views ‘in hindsight’ after an event and when differing positions have been established. I therefore did not find good reason now to seek the views of councillors on the Committee.
28. I considered the Report, it being the contemporaneous written record for the Council’s decision making. And, the Committee would have considered the Report if the Application had been called in. I would expect the Report to address each ‘test’ and condition applying to Class Q permitted development and it did. I therefore found no fault here.
29. The Report also identified peoples’ concerns about the extent of demolition and building work and so whether the Application proposed a ‘conversion’ rather than a new or rebuild. So, while the Report did not expressly comment on either matter, I could not find they were not before the Council’s decision maker. I also took into account that Class Q provides for installation or replacement of windows, doors roofs, and exterior walls reasonably necessary for the building to function as a house. The courts also said works may be extensive but remain Class Q permitted development (see paragraph 9).
30. The Report also showed peoples’ concerns about the presence of asbestos and safety issues whether it remained or was removed. So, again, while not expressly addressed in the main body of the Report, the issue was before the Council’s decision maker. I could not therefore find the Council failed to take the matter into account in reaching its decision, which decision approved the Application details keeping the existing roof.
31. The planning system regulates the use of land and operational development. Many development projects need other consents and approvals and not just planning permission or prior approval. There are specific legal rules about asbestos. And people usually need a licence from the Health and Safety Executive to work with asbestos. If the agricultural building in this case contains asbestos material, the developer will, besides the prior approval decision notice, need to comply with the separate rules for works affecting asbestos. However, I did not find the presence of any asbestos substantively affected the Council’s planning decision.
32. Planning decisions will involve the application of planning judgement to individual development proposals. However, such decisions must be based on planning law and policy. Here, taking account of Class Q legal rules and the court decision (see paragraph 9), I did not find the Council was likely on balance to have reached a different decision if the Application had been called in to the Committee. I therefore found, Mr X would likely be in the same position as he is now, that is, living close to an agricultural building with prior approval for housing use. So, while there was fault in the ‘call in’ procedure, I did not find this fault was the cause of Mr X’s injustice.

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Final decision

33. I completed my investigation finding fault by the Council, but it was not the cause of Mr X’s injustice.

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Investigator's decision on behalf of the Ombudsman