Summary: Mrs X complained about the way the Council made a planning decision for development on land near her home. We found faults that caused an injustice, though we cannot say that the outcome of the Council’s planning decision would have been different. The Council agreed to apologise to Mrs X for any disappointment and confusion it caused. It also agreed to carry out a review to ensure its working practices and procedures are robust and fit for purpose to avoid recurrence of the faults in future.

The complaint

1. Mrs X complained about the Council’s decision to approve a development of industrial or storage and distribution units on land near her home.
2. Mrs X says the development is too high and will overshadow her property. Mrs X also said the Council allowed the developer to remove tall trees that would have screened the building from views from her home.
3. Mrs X would like the Council to revoke the permission and allow a lower building.

Back to top

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)

Back to top

How I considered this complaint

6. I read the complaint and discussed it with Mrs X and a planning manager. 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. I have considered Council policies, including its Statement of Community Involvement (SCI) and Supplementary Planning Document (SPD) The Good Design Guide, which sets out normally acceptable separation distances.
7. I gave Mrs 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.

Back to top

What I found

Planning law and guidance

Planning publicity requirements

8. Regulations set out the minimum requirements for how councils publicise planning applications.
9. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
10. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
11. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

Consideration of applications

12. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
13. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
14. 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.

Space around dwellings

15. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
16. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
17. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
18. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
19. These guidelines relate to habitable rooms that directly face the elevations of new buildings. If buildings are set at an angle, they can be set closer together, as the impact will not be so great. For example, if buildings are set at 45 degrees to each other, it may be considered acceptable to half normal separation distances.
20. The Council’s guidance document (The Good Design Guide) shows that 8 metres is normally acceptable between single storey property and a blank elevation, and 14 metres for a two storey and above. Between facing habitable rooms, the Council would expect 21 metres, though less if they are across a road.

Planning use classes

21. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ uses, which means a use that is ‘of its own kind’ or ‘unique’.
22. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the council to decide.

Tree protection

23. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them for their public amenity value. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
24. Once a TPO is in place, works cannot be carried out without written consent by the council’s planning authority. Once a TPO is made, the council must allow 28 days for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the council may issue a new order and begin the process again.
25. Details of how a council considered an application are usually found in planning case officer reports. 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.

Case officer reports

26. 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.

Openness of Local Government Bodies Regulations

27. Decisions made by officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made.
28. The 2014 regulations apply to a decision that has been delegated to an officer, if it:
• grants a permission or licence;
• affects the rights of an individual; or
• awards a contract or incurs an expense that materially affects the council’s financial position.
29. The 2014 regulations require that any such decision should be made available to the public:
• at the council offices;
• on the council’s website, if it has one; and
• by any other means the council considers appropriate.
30. The written records should include the following information:
• the date the decision was made;
• the record of the decision, its reasons and the background papers relied on;
• details alternative options, if any considered and rejected; and
• a record of any relevant conflict of interest.

Councils power to revoke their planning approvals

31. Councils have the power to revoke planning permissions they grant or that are granted by development orders (e.g. 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

32. The Council received a planning application for storage buildings on land that was used as a lorry park/transport hub.
33. The Council publicised the application by sending notification letters to neighbours, putting up a site notice and placing a notice in a local newspaper.
34. The Council sent evidence from its document management system to show how it publicised the application. The neighbour notification list did not include Mrs X’s home but did include her neighbour. A planning manager has confirmed Mrs X should have received a notification letter but did not because her address was not shown as a separate property from her neighbours on the Council’s computer mapping software. The manager confirmed this error has been corrected and a separate record for Mrs X’s home has been created and should now show if further applications are received.
35. Mrs X was aware of the application and joined with her neighbour to employ a planning consultant as their agent. The agent submitted details of their concerns about the application and how it would affect them to the Council.
36. The Council’s planning case officer wrote a report. The case officer report included:
• a description of the proposal and site;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including the principle of development, the design and impact on the character of the area, the impact on amenity, flood risk and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
37. The case officer report said that no comments were received from local residents. A planning manager has confirmed this was incorrect.
38. The Council approved the application subject to conditions and a decision notice was sent to the applicant. However, the case officer report and the decision notice were not uploaded to the Council’s website. A planning manager said this probably happened because the Council’s normal publication process was not followed. The planning manager thinks this is the most likely explanation because the records show the decision was issued directly by the case officer, rather than the administrative staff who would normally carry out this function. Mrs X said she asked the Council for a copy of the case officer report, but did not receive one.
39. The planning manager said that the tall conifers that were removed at the back of the site were not protected by planning controls. The planning manager accepts there were faults in the way the decision was made, but maintains they would not affect the outcome of the decision. This is because habitable rooms in Mrs X’s home do not face directly towards the site and are a significant distance from the site of the new buildings. The planning manager said that in correspondence with Mrs X, it seemed a main concern was the impact the new buildings would have on a raised decking area above a garage on the edge of her land. In the planning manager’s view, the impact on this area would not be significant enough to refuse the application.
40. The nearest habitable rooms in Mrs X’s home are about 25 metres from the site and offset at an angle of about 60 degrees. The raised decking area above a garage is closer to the site.
41. In its response to her complaint, the Council apologised for failing to make specific reference to her home in the case officer report but went on to say that the case file held sufficient information to justify its decision that the development was acceptable in planning terms.
42. In response to an earlier draft of this complaint, Mrs X said:
• The Council was of the opinion that the highest aspect of the building faced away from her property, when in fact it faced directly towards her. If the Council had properly considered the application, it might have insisted that the lowest elevation faced towards her home.
• The Council should have protected trees that were planted to shield her property.
• Her home might be at an angle to the development but because of its length, it still affected her.
43. The planning manager said when he visited the site, he had assumed it had been designed so the lowest elevation faced towards Mrs X, and it is likely he told her this. However, this meeting took place after the decision was made.

My findings

44. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
45. The evidence shows there were procedural errors by the Council, and I consider these to be fault. These faults are:
1. The Council’s planning computer software did not include Mrs X’s home as a separate property, and because of this she did not receive a neighbour notification letter.
2. The case officer’s report said there were no comments received from residents, but the Council accepts it did receive objections from the agent employed by Mrs X and her neighbour. I have seen no evidence to show the Council took account of Mrs X’s objections before it made its decision.
3. The case officer’s report and the decision notice should have been uploaded to the Council’s website after the decision was made, but this did not happen.
46. Where we find fault, we need to decide whether it made any difference to the outcome, so we can then assess whether the complainant was caused a personal injustice we should remedy.
47. Mrs X cannot see that her concerns were taken into account. However, I am not persuaded that but for the faults I have found, it would be likely that the outcome would have been different. My reasons are as follows:
• the habitable rooms at the rear of Mrs X’s home are not facing directly towards the proposed buildings, but offset at an angle;
• though the proposed buildings are high and built on raised land, they are separated by a significant distance;
• I have seen no evidence to show that the trees Mrs X refers to were protected by planning controls;
• I have seen no evidence to show the case officer was confused about the orientation of the building, and the approved plans clearly indicate the location and design of its elevations; and
• it is possible that the decking area will be overshadowed on late evenings and it is clear that the outlook from her home has changed, and while I can understand why Mrs X will be disappointed, I cannot say that any reasonable authority would consider the impact on her amenities to be so great as to warrant a refusal.
48. However, the Council needs to make sure its decision making processes are robust, or the faults I have found might occur again. Because of this, I recommended a remedy which the Council has agreed.

Back to top

Agreed action

49. To remedy the injustice caused by the fault I found and to avoid recurrence of the same faults in the future, the Council has agreed to:
1. apologise to Mrs X for any disappointment and confusion caused by the faults I have found;
2. carry out a review of its planning decision making processes and its record keeping and administrative systems to ensure they are robust and fit for purpose;
3. inform the Ombudsman and the Council’s relevant scrutiny committee of the outcome of the review, including any changes made to policy, practice and procedure.
50. The Council will provide us with evidence it has complied with the above actions within the following time scales:
1. the apology to Mrs X will be provided within two weeks from the date of our final decision;
2. the service review will be completed within four months from the date of our final decision; and
3. the Ombudsman and relevant scrutiny committee will be informed about the outcome of the service review within one month from the date the review is completed.

Back to top

Final decision

51. I found faults that caused an injustice and without action on the part of the Council, might recur. I made recommendations to remedy the injustice caused and to avoid recurrence of the same faults in future, which the Council has agreed. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman