Summary: Mr X complained about the Council’s failure to impose a planning condition proposed by its planning committee, and failure to properly follow its complaint process. We found fault but made no further recommendations because of the actions and changes the Council has already made.

The complaint

1. Mr X complained about the Council’s failure to impose a condition to control permitted development rights on a house built close to the boundary with his home. Mr X is concerned that in future the owner might use permitted development rights in a way that might affect his amenities.
2. Mr X also complained about how the Council dealt with his complaint through its complaint procedure.

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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 we decide there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 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’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
12. Councils may use planning conditions to remove permitted development rights, if they consider it necessary for planning purposes.

Complaints about council complaint processes

13. Generally, we do not investigate complaints that are just about complaints procedures. There are several reasons for this, but the main reasons are as follows.
14. Our focus is mainly on the issues and decisions that caused the original complaint. We are a stage beyond the Council’s own complaints processes and can remedy any injustice it has failed to address when it has had the chance to do so.
15. We do sometimes investigate complaints procedures, even if there is no personal injustice to the complainant. We may do this if we think it is likely there are significant or systemic complaints process failures that could cause injustice to others.
16. We keep records of complaints handling issues, and if it is clear systemic problems exist within complaints procedures, we can investigate further to see if service improvements are necessary.

What happened

17. Mr X’s neighbours applied for planning permission to build a new house in their back garden.
18. The application was referred to the Council’s planning committee by a local councillor. The case officer wrote a report for the committee, which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
19. The committee decided to approve the application, but with a further condition which removed permitted development rights.
20. The decision was issued, but the additional condition was not included in the decision notice.
21. Mr X complained to the Council about what had happened. He got no response at stage 1 of the complaints process and so contacted the Council again. The Council responded, dealing with his complaint through stage 2 of the process.
22. The Council said:
• It accepted it was at fault for not including the condition to remove permitted development rights. It explained it could now not impose this condition, because the permission had been issued and the development commenced. It apologised for its failure and explained it had changed its processes to ensure post-meeting debriefs. The debriefs should ensure that minutes are correct and that any additional conditions are added to decision notices prepared by planning officers.
• It had no record of responding to Mr X at stage 1 of its complaint process. It apologised and said it had made changes to ensure better oversight of ongoing complaints.
23. The neighbours have not yet used permitted development rights to make changes to their home, but they did seek to vary plans by making:
• a non-material amendment application; and
• an application to vary approved plans.
24. Both applications were approved, and I have seen no evidence to suggest fault in the way these decisions were made. The Council’s planning officer has told Mr X that in its view, even if permitted development rights were used in future, they are unlikely to cause an impact on his privacy. This is because:
• any windows in roof extensions on the side of the new house would need to be obscured;
• a single storey extension is unlikely to cause harm to his amenity.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made and look for evidence of fault in the decision-making process. Where we find fault, we decide whether it caused an injustice to the complainant that should be remedies. We can also recommend service improvements to avoid recurrence of the fault and injustice to others in future.

Failure to impose condition

26. During the meeting, the Council’s committee voted to approve the application subject to a condition. After this happened, the officers should have either:
• challenged the committee if they considered the proposed condition was unnecessary, unenforceable or imprecise; or
• included the condition in the decision notice.
27. This did not happen and so I find fault. The Council has already apologised to Mr X and has made changes to its procedure, and I do not consider it necessary to make any further recommendations.
28. The neighbours have not used permitted development rights and the Council’s planning officer believes they would not cause harm to his amenity if this did happen. If in future Mr X’s neighbours do use permitted development rights in a way that causes harm to his amenities that might have been avoided, he can complain to us again.

Failure to respond at stage 1 of complaints process

29. The Council did not respond to Mr X’s complaint at stage 1 of the process. This is fault.
30. The Council has apologised for the fault and implemented changes to avoid recurrence. I do not consider it necessary to make any further recommendations.

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Final decision

31. I found fault because the Council did not include a planning condition approved by its planning committee in the decision notice. It also failed to respond properly through its complaint procedure. The Council had already apologised and made changes to its procedure because of what happened, so no further recommendations were necessary.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman