Summary: Mr J complains about issues relating to a planning application by his neighbour. He says the Council should have done more to consider his objections and investigated further. It also missed important issues of ownership in its investigation. Our decision is there was no fault by the Council, so we cannot question the merits of the Council’s decision.

The complaint

1. The complainant (Mr J) complains:
• the Council did not do enough to assess a prior approval planning application, or to take account of his objections.
• the proposed extension breaches the Council’s 45-degree rule. So the Council should have asked for a daylight assessment;
• he suspects the house is being converted for use as a house in multiple occupation (HMO);
• they commissioned an architect to look at the matter. Their report spotted that the rear extension was encroaching on their boundary. The Council had not noticed this and so issued a misleading certificate;
• after their complaint, the Council cut all communications. It ignored their questions on restrictive covenants, set by the council when they bought the house.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. In investigating this complaint, I have considered:
• Mr J’s complaint and information he sent us;
• information the Council sent us;
• publicly available information about the applications, available on the Council’s website.
5. I sent my draft decision to Mr J and the Council and considered their responses.

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What I found

Legal and administrative background

Planning permission

6. The role of local planning authorities is to balance the right of a landowner to do what s/he wishes with his or her land and property against the public and private interests of those who own and enjoy land that may be affected by development. Provided there was no administrative fault in the way the local planning authority came to a decision, it is not for the Ombudsman to criticise the way it balanced these often conflicting interests.

Site visits

7. Council officers are not obliged to carry out site visits before deciding on a planning application. Officers will often already have local knowledge of an area and be able to identify the impact of a proposed development using aeriel photographs and other tools such as Google Streetview.

Decision making and material planning considerations

8. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
9. Planning considerations include things like:

• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.

10. Planning considerations do not include things like:

• private disputes between neighbours e.g. land ownership;
• restrictive covenants;
• fence lines/boundary positions; and
• the applicant’s motives.

11. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation. It is for the decision maker to decide the weight given to any material consideration in determining a planning application.
12. 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.
13. 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.

Permitted development

14. Not all development needs 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’.
15. Some permitted development proposals need an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.

What happened

16. Mr J’s neighbours made a planning application to extend their house. At first the Council refused the application due to its bulk, scale, size and its design’s effect on the street scene. It also decided the internal layout was not suitable for future occupiers.
17. The neighbours made a new application, with some changes to the proposals. The proposal included a single storey rear extension and a dormer extension. Mr J objected to the application. The neighbour put in further amendments to the plans, which the Council reconsulted on.
18. The planning officer visited Mr J’s property and spoke to him. Mr J was not satisfied, as the officer did not take measurements or photographs.
19. Mr J objected in response to the Council’s further consultation. He also complained.
20. The Council’s complaint response noted many of the issues Mr J had raised were not material planning considerations. But it would consider matters that were – overbearing, overlooking and conflicts with local planning policy and guidance – in its determination of the application.
21. The Council considered the application via a delegated report. The officer noted:

• the measurements of the proposed extension;
• the proposal would not significantly adversely affect the amenities of neighbours because of its distance from neighbouring properties;
• the foliage between the development site and Mr J’s property;
• the proposal would not have significant adverse impact on neighbours’ loss of light or privacy, or be overbearing, because of the relationship of the properties;
• the proposal complied with the 45-degree code as set out in the Council’s Design Guide (this is a rule about relationship between properties applicable for those of two stories or more);
• the dormer extension would be allowable under permitted development rules if the application was for that in isolation. Therefore it did not consider it reasonable to refuse the application based on the proposed dormer;
• the proposed single-storey extension had been reduced in depth;
• the internal layout issues with the previous application had been resolved, so it was now acceptable;
• discussions with an objector, although many of the issues raised were not material planning considerations;
• the Council granted planning permission.

22. Mr J continued with his complaint. The Council’s responses advised:

• it did not agree the application was pre-determined. It noted the revisions the applicant had made as evidence of this;
• its report had noted several of his objections.

23. Mr J was dissatisfied with the Council’s response, so he complained to the Ombudsman. In response to our enquiries, the Council sent us some photographs of the property it had taken for the first application. The photographs show a significant amount of foliage between the development property and Mr J. Mr J says the Council should not have taken account of this, as the foliage is temporary.

Analysis

24. From the information available, I do not consider that the Council was at fault in the way it determined the application. It considered the impact on neighbouring properties, and this is reflected in the case officer’s report. Mr J also took up the opportunity to present his objections during the consultation period.
25. But the decision on any planning application is based on relevant policies, not on the scale of support or opposition to an application. The public and nearby residents will be consulted about an application, but the decision will be based on planning policy. This prevents decisions being made on grounds which are arbitrary, perverse, or subject to impropriety.
26. The Council is correct that some of the issues Mr J raised are not matters the planning process could consider. For example, matters such as the boundary issue, whether the conversion was to make a HMO and restrictive covenants are not planning considerations. So they could form no part of the decision-making process.
27. An application for planning permission must be submitted with a certificate noting the ownership of the development site. The purpose of the certificate is to notify all landowners of a development application. An incorrect certificate would invalidate the application. But it would not be reasonable for the Council to check the ownership in the detail Mr J thinks it should have. That is because not owning land is not a reason for refusing planning permission, as ownership is not a material consideration. And Mr J was clearly aware of the proposal. Once the Council was aware of the incorrect information, it acted.
28. I do not agree with Mr J that the amount of screening provided by foliage was something the Council should have ignored. Its assessment was based on the situation as existed at that time.
29. The officer’s report could have been clearer in some respects. It mentions the 45-degree rule, but this was not applicable to the extension as that was single storey. The Council says the report mentioned that rule because of the dormer extension. But the report also mentioned the dormer in relation to what would have been allowed under permitted. So there is a degree of inconsistency in the report, that could have been clarified. And the report could have been clearer that the permitted development rules were not applicable to this application, as the Council had considered it as a full application. But I do not see these uncertainties are significant enough to amount to fault.
30. I appreciate this was not a decision Mr J wanted, but I cannot see any fault that led to a significant injustice. There are some matters where there was some confusion. But I do not consider, but for these minor issues, a different decision would have been made. So I cannot question the merits of the Council’s decision.

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Final decision

31. I am making a finding of no fault and have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman