Summary: Mr X said the Council had not properly dealt with a planning application for development which badly affected his home. We found no fault in how the Council decided to grant the development planning permission.

The complaint

1. Mr X said the Council failed to properly deal with proposals to develop land near his home because:

• it did not tell him in advance the developer could make more than one planning application to develop the land;
• it did not consider all his objections but said some related to private and not planning matters;
• it assessed the development based on an incorrect plan;
• it changed its decision from refusal to the grant of planning permission; and
• Councillors at their Planning Committee referred to financial matters, which the Council had told him were not relevant to deciding the application.

2. Mr X said the development was an eyesore which badly affected his privacy and the value of his home. Mr X wanted the Council to ensure its planning decision notices let people know a developer could make more than one application. Mr X also wanted the Council to return to its original decision and refuse planning permission, so the developer must either appeal or change the development.

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What I have and have not investigated

3. Mr X also said the developer’s second planning application was invalid. Mr X’s concern related to the names appearing on the application form. The Council addressed this issue in responding to Mr X’s complaint. It confirmed the owner of a development site did not have to make the planning application. The Council said the second application showed the developer was both the site owner and aware of the application although a third party had made it.
4. Landowners often engage an agent to prepare and send their planning applications to a council. And third parties can apply for planning permission to develop another person’s land provided they give the owner notice of the proposed application. Here, I saw no good reason to investigate any continuing concerns Mr X might have about the names on the form, and resulting validity of, the second planning application. And, only the courts, not the Ombudsman, could declare an application, and any resulting planning permission, invalid.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 written complaint and supporting papers;
• (at Mr X’s request and with his consent) talked to Mrs Y about the complaint;
• considered information on the Council’s website about the development;
• asked for and considered the Council’s comments and supporting papers about the complaint; 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

8. Permitted development is development that falls within limits set by legal rules and it does not need council approval. But most development needs express planning permission from the local council. Before deciding whether to grant permission, councils must publicise planning applications so people may comment on development proposals.
9. Councils should make their planning decisions in line with their local plan policies unless other material planning considerations indicate otherwise. Material planning considerations concern the use and development of land in the public interest. For example, traffic generation, noise and overlooking. Peoples’ comments about land use and development matters will be material considerations. Councils must take such comments into account, but they do not have to agree with them. Private concerns, for example, house prices and a developer’s behaviour, are not material planning considerations.
10. A council planning case officer may visit the proposed development site when dealing with a planning application. The case officer may also prepare a report assessing the proposals against relevant local plan policies and other material planning considerations. Planning policies may pull in different directions, for example, promoting housing development and protecting the amenities of existing homes. The report will balance and weigh the competing policies and planning issues and usually end with a recommendation to grant or refuse planning permission.
11. Councils have rules about which planning applications their councillors and senior officers decide. In practice, senior council officers decide most applications. Relatively few applications, and usually for major development, go to council planning committees for a decision by councillors. However, a council’s rules will usually include a ‘call in’ procedure for councillors. This allows councillors to ask the planning committee to decide an application that officers would normally decide. Here, the Council’s rules allowed a councillor to ‘call in’ an application for a decision by the Planning Committee. The Council’s rules also said an application should go to the Planning Committee if four or more people made representations inconsistent with the officers’ recommendation.
12. The decision maker decides the weight given to any material consideration in deciding a planning application. So, the senior officer or planning committee may, in considering and weighing the planning issues, disagree with the case officer’s report recommendation.
13. If councils refuse planning permission, they must give reasons for that decision. Developers may consider the refusal reasons to decide whether to use their legal rights to appeal the refusal. Or they may seek to overcome the refusal reasons by changing their development and apply for planning permission for revised proposals. The law also allows people to make more than one application seeking planning permission for the same or similar development. However, the law gives councils powers to refuse to decide an application if a developer continues to seek planning permission for development it has repeatedly refused. (See: Town and Country Planning Act 1990, section 70A, as amended.)
14. If development takes place without the necessary planning permission, there will be a breach of planning control. Councils should investigate reported breaches. But enforcement action is discretionary and so they may decide to take informal action or not to act at all. Informal action might include negotiating improvements or asking for a ‘retrospective’ planning application for the built development so they can formally consider the issues. If councils grant planning permission on a retrospective application, it will regularise the breach.

What happened

15. Development of an existing building started on site which the Council later found did not meet permitted development rules and so breached planning controls. The Council then received two retrospective planning applications. The applications sought planning permission for the ‘as built’' development. A senior Council officer decided the first application (‘Application One’). The senior officer refused planning permission, which decision was in line with the recommendation in the planning case officer’s report. In summary, the refusal reason concerned the inappropriate design and appearance of the development given the character of the surrounding area.
16. A few weeks after refusing planning permission, the Council received the second application (‘Application Two’). The case officer’s report on Application Two recommended refusing permission on design and appearance grounds (‘the Report’). A councillor ‘called in’ Application Two and at least four people supported the grant of planning permission (see paragraph 11). Application Two therefore went to the Council’s Planning Committee for decision. Councillors at the Planning Committee decided to grant the development planning permission.
17. Mr X, who had objected to both applications, complained about the Council’s decision to approve Application Two having refused Application One for the same development.

Consideration

Introduction

18. We are not an appeal body. Our role is to consider whether councils act with fault in reaching their decisions and, if so, whether that fault has caused the complainant injustice. Here, Mr X’s complaint concerned the Council’s decision to grant planning permission for development having previously refused to do so. My investigation into that complaint focussed on the five issues listed at paragraph 1 to this statement.

Repeat planning applications

19. This issue arose from the Council’s decision to refuse planning permission for Application One. Mr X said the Council gave the developer two choices: to appeal the refusal or face enforcement action. But it said nothing about the developer making a repeat application for the same development.
20. Here, the Council was dealing with retrospective planning applications for substantially complete development. The case officer’s report on Application One said the enforcement team would next consider appropriate action. This was a reasonable and suitable statement to make given the case officer’s recommendation to refuse planning permission. The Council’s following notice refusing planning permission told the developer about their right to appeal the decision. The law required the Council to include that information in its decision notice. So, the Council acted correctly in doing so.
21. Neither the case officer’s report nor the decision notice referred to the developer’s ability to make another planning application seeking planning permission for the development. However, the law did not require the Council to tell the developer about making another application nor to publicise that possibility to residents. And a reference to such a possibility in the case officer’s report would have been inconsistent with the stated intent to refer the file to the Council’s enforcement team. I did not therefore find the Council at fault in not referring to the developer’s ability to make a further application seeking planning permission for the development. More importantly, the Council publicised Application Two and Mr X took the opportunity to object to it. So, not knowing a further application could be made, did not cause Mr X any significant personal injustice.

Consideration of Mr X’s objections

22. Mr X said the Council did not consider all his objections when dealing with Application Two because it said some were civil matters.
23. Councils should only take account of peoples’ objections where they concern planning and land use issues (see paragraph 9). I carefully considered both Mr X’s detailed representation objecting to Application Two and the Report. The Report identified key planning issues for deciding Application Two including the impact of the development on both the surrounding area and nearby homes. The Report found the development’s impact unacceptable on design and appearance grounds.
24. In considering the impact on nearby homes, the Report expressly referred to Mr X’s home but found no unacceptable impact on any nearby homes. So, the Report provided evidence the Council considered the impact of the development on Mr X’s home, including his objections about overlooking and loss of light. I therefore found no fault here. Having considered that planning issue, including Mr X’s objections, the Council was entitled to reach its view the impact on nearby homes was acceptable. Without evidence of fault, I had no grounds to question the Council’s view however strongly Mr X might disagree with it.
25. The Report also provided evidence the Council was aware of Mr X’s other objections as it summarised the main points and briefly responded to them. I recognised Mr X was not satisfied the Council found some of his objections to be private property matters and not material planning considerations. However, I found the Council acted correctly in separating Mr X’s objections into material planning considerations and private property matters. Overall, I saw no evidence of fault in how the Council dealt with Mr X’s objections.

The incorrect plan

26. Mr X said the developer’s plan for Application Two gave inaccurate information about the size of the development (‘the Plan’). And the Plan was displayed at the Council’s Planning Committee meeting.
27. The law sets out what information is generally needed to make a valid planning application. (See: Town and Country Planning (Development Management Procedure) (England) Order 2015, article 7, as amended.) That information includes a location plan and “…other plans, drawings and information necessary to describe the development…” And any plans must include a scale and show ‘North’.
28. Here, the Plan included a scale and showed the direction ‘north’. It also included the developer’s calculations for the space added to the existing building. And statements on the Plan said the figure for the added space meant it was within the legal limits to be permitted development (see paragraph 8). However, the Council said it checked plans when assessing planning applications to ensure it based its reports and decisions on correct information. It said the Plan accurately showed the as built development although it disagreed with the supporting size calculations. The Report referred to the Plan and said the development did not meet permitted development rules. The Report also set out the Council’s figure for the added space, which used the Plan scale. That figure was greater than both that included on the Plan and the legal limit for permitted development.
29. Here, the Report meant councillors on the Planning Committee had accurate information about the size of the development when making their planning decision. So, while it was regrettable the Plan and Report provided different figures, I saw no evidence of fault causing injustice on this issue.

Change of planning decision

30. The Council’s changing planning decision is at the centre of Mr X’s complaint. The development did not substantively change between Applications One and Two and neither did the Council’s planning policies. But the Council changed its position from refusing to granting planning permission.
31. The Council’s reason for refusing Application One concerned the impact the design and appearance of the development had on nearby homes and the street scene. This was also the reason given for the Report recommendation to refuse Application Two. People may have different views about the design and appearance of existing buildings and proposed developments. What one person may find suitable and or complementary another may find unsuitable and jarring. So, considering design and appearance issues will involve some subjectivity.
32. Here, the Council’s planning officers held a consistent view on design and appearance: they found the development had an unacceptable impact. However, councillors at the Planning Committee did not need to accept their officers’ recommendation. Rather, they could weigh and balance the planning issues, including design and appearance, and reach their own view on whether the development had an unacceptable impact (see paragraph 12).
33. The minutes of the Planning Committee meeting provided evidence that councillors were aware of their officers’ reason for recommending they refuse planning permission. The minutes also provided evidence councillors considered that issue but reached a different view to their officers about the impact the design and appearance of the development had on the local area. Having taken account of the issue, councillors at the Planning Committee were entitled to disagree with their officers’ recommendation and find the design and appearance of the development did not have an unacceptable impact. I therefore had no grounds to question the decision to grant the development planning permission however strongly Mr X might disagree with it (see paragraph 5).

Councillors at the Planning Committee

34. Mr X pointed to a seeming inconsistency in what the Council said about financial matters not being material considerations when deciding planning applications. Mr X said the Council told him that changes to house prices were not relevant. But a councillor at the Planning Committee referred to financial matters when talking about the development.
35. I recognised Mr X’s concern about the seeming inconsistency on financial matters. Any possible change to house prices would not be a material planning consideration (see paragraph 9). The minutes of the Council’s Planning Committee showed the councillors’ discussion included comments about the consequences of refusing planning permission. These included the developer’s costs in removing the built development. Councillors also asked about peoples’ objections, including those the Council’s planning officers considered to be private matters rather than material planning considerations. Overall, reading the minutes as a whole, I saw no evidence that costs (or other private issues) were key to the Council’s decision making. The minutes showed the councillors’ discussion focused on the refusal reason: the impact of the design and appearance of the development on the local area. I therefore found no fault causing injustice here.

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Final decision

36. I completed my investigation finding no fault in the Council’s planning decision making.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman