Summary: X complained about the Council’s decision to approve their neighbour’s planning application. We found fault, because there was a typographical error in the planning case officer’s report. However, we did not find that the fault made any difference to the outcome of the Council’s planning decision, so we made no recommendations.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the way the Council dealt with their neighbour’s planning application. X said the Council:
• was not even handed, as it approved this application but refused X’s own application, which X considered less impactful;
• told X their neighbour’s application was likely to be refused, but it was approved;
• confused X when the planning portal said ‘pending consideration’, and there was both a planning application and a permitted development application (for a rear dormer and works to the shape of the roof). X said they thought this meant the full application would not be decided without further consultation, but later found out this was not the case. X says
• this also meant X and others commented on the permitted development application when they should have been commenting on a revised planning application;
• should have taken into account the permitted development application when considering the full planning application;
• should offer X compensation for the impact the development will have and rescind its refusal of X’s planning application.
3. X said the new development reduced sunlight and outlook in their home.

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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. 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)
5. It is our decision whether to start, continue or end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I read the complaint and discussed it with 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. I discussed the complaint with a planning manager and considered information they sent about the Council’s decision and its document management processes.
7. I read the permitted development regulations as they relate to new doors/windows in the ground floor side elevations of dwellings.
8. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

Planning application decisions

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. Some councils issue guidance on how they would normally make their decisions on planning applications and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
14. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
15. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
16. Although SPD can set different limits, typically councils 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.
17. This Council has SPD guidance relating to extensions, which has separation distances of 21 metres between habitable rooms and 12 metres between a habitable room and a back elevation, such as an end wall of a neighbouring house. The guidance also takes account of differences in levels between properties.
18. Before councils make their decisions on a planning application, their officers often carry out site visits, but there is no obligation on them to do so. Whether a site visit is necessary is a judgement matter for each planning officer and decision-maker to decide.

Certificates of lawfulness and permitted development

19. 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’.
20. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful existing use or development (CLEUD) to the applicant.
21. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations; or
• the development was unlawful, but the time limit for enforcement actions has now passed.

What happened

22. X’s neighbour submitted a planning application to extend their home by adding a rear extension. The Council consulted neighbours on the proposals. X and others submitted their objections. Later, X’s neighbour revised the planning application to make the proposed development smaller. The Council consulted X and others again for their views on the revised plans. The plans also showed a door to a utility room added to the side of the existing building.
23. X’s neighbour also submitted a CLEUD application to ask the Council to confirm that work to add a rear dormer and works to the shape of the roof were permitted development. X says when they and others went on to the Council’s planning portal it was unclear. They all commented on the CLEUD application instead of the revised planning application.
24. The revised planning application for the rear extension and the CLEUD application were not decided at the same time.
25. The planning application for the rear extension was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant. This included reference to the CLEUD application, which it said was ‘pending consideration’. The officer included an incorrect CLEUD application reference, which was for a different site location, but the works described in the summary (a proposed rear dormer and works to the shape of the roof) were correct;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on residential amenity, overshadowing, scale and design, and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
26. The Council approved the rear extension application and X complained to the Council. X said the Council’s request for comments on the revised planning application were unclear and led them to believe they should be commenting on the CLEUD application instead. After X complained, the Council separately considered the CLEUD application, which it did not approve.
27. The Council responded to X’s complaint, and said:
• there had been no site visit by the case officer before a decision was made, and there was no obligation for this to happen;
• ‘pending consideration’ was a standard phrase used by council planners which meant waiting to be considered;
• the Council reconsulted on the application because the applicant submitted amended plans during the process, with the 2nd storey element of the rear extension removed; and
• there was no inconsistency between the Council’s consideration of X’s own application and their neighbour’s, as the same process had been followed.
28. I spoke to a planning manager about what happened. I asked about the incorrect CLEUD reference in the case officer’s report. I also asked why the planning portal only showed the existing plans and revised plans, but not the original proposed plans which included a 2nd storey element.
29. The manager said:
• the CLEUD reference was a typographical error. The neighbour’s CLEUD application was considered after the extension application, and was not approved; and
• the Council only showed existing and approved plans on its public planning portal after decisions were made. Other documents, including all application plans and neighbour comments were available on the public planning register at the Council’s offices.
30. I also asked the Council about the new side door to a utility room in the existing elevation. The door was included in the application plans, but there was no reference to it in the case officer’s report. The manager said the door was clearly shown on the plans and would have been considered before a decision was made, but it was not deemed significant, because:
• it could have been inserted before or after the application using permitted development rights, so if refused it would be difficult to defend on appeal;
• the utility room was a non-habitable room at ground level, and the window opposite (on X’s house) was at first floor level and was also for a non-habitable room (a stair landing). This was a fairly typical arrangement in residential settings, and so it would be difficult to justify a refusal; and
• the new door was a material planning consideration, but not a key consideration, so the Council was not obliged to refer to it in its report.

My findings

Incorrect CLEUD reference

31. 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.
32. When we find fault, we need to decide whether it causes an injustice we should remedy.
33. The Council’s case officer report included an incorrect CLEUD application reference, but the summary of the proposed works was correct. This was fault but I do not find it made any difference to the outcome and so will not recommend a remedy for X. I am satisfied this was a simple typographical error and so will not recommend any service reviews of planning decision making processes.
34. On the other issues X raised, my views are as follows.

Refusal of X’s own application

35. We are not a planning appeal body and cannot comment on the judgements made by councils in the absence of fault in the process.
36. X had the right of appeal when the Council refused their own application but has no right of appeal against the Council’s decision on their neighbour’s application. Because of this, we would not be able to say which of the two decisions, X’s application or their neighbour’s, was the better judgement.

Indication of likely refusal

37. I did not investigate this allegation further because it is not fault for an officer to give an opinion of what the outcome of an application process might be. It would be fault if there was evidence the officer pre-determined the outcome, but I have seen nothing that would suggest this.

X’s confusion between CLEUD and full application

38. The purpose of the case officer report is to inform the decision maker of the case officer’s views. The decision maker is expected to understand planning law, policy and jargon. While the reports can be read by the public, they are not written with that purpose in mind.
39. Although X and his neighbours may have been confused by what the Council was asking them to comment on, the revised planning application, the Council followed the correct process. I have seen no evidence to suggest X’s confusion was caused by fault. Based on X’s objections to the original planning application (that the development would impact the light, privacy and amenity of his property), it appears X’s objections to the revised planning application would be similar to the comments they made on the original application. The second application was for smaller development. X’s concerns about light, privacy and amenity were all considered by the case officer and set out in their report.

Permitted development application should have been considered

40. The Council was aware of the CLEUD application, though it had used the wrong application reference to refer to it. What weight is given to any part of the planning history was a matter for the planning authority to decide.

The new side door

41. I have considered X’s complaint and the Council’s explanation. I also read the permitted development regulations for dwellings but saw nothing to contradict the Council’s assertion that the new side door could be permitted development.
42. We are not a planning appeal body, and I cannot say that failing to refer to the new side door in the officer’s report was fault. This was a matter for the planning authority to decide.

Request for compensation and reversing X’s refused application

43. We may recommend compensation if we find evidence that without fault in the process, the outcome would have been different, and the complainant was caused a significant injustice. I did not find a remedy for X was necessary in this case.
44. We have no power to quash or reverse planning decisions. This remedy is reserved for the High Court on an application for judicial review of a planning decision.

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Final decision

45. I found fault, but I did not find it made any difference to the outcome of the Council’s planning decision, and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman