Summary: Mr X complained about the Council’s decision to grant planning permission for development near his home after refusing permission for similar development. We found no fault in the Council’s planning decision making.

The complaint

1. Mr X said the Council’s decision to grant planning permission for development near his home was not properly or fairly made because:

• the decision was based on inaccurate application plans;
• the Council did not properly consider the impact of the development on his home, ground levels, or the character of the area; and
• two Council planning officers held different opinions on two similar proposals.

2. Mr X said the development would negatively impact the local area and his home as its height and size made it overbearing, bulky and intrusive. It would also result in a loss of privacy and outlook for his home.
3. Mr X wanted the Council to secure changes to the development to reduce its impact on the area and his home.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I have:

• considered Mr X’s written complaint and supporting papers and photographs;
• talked to Mr X about the complaint;
• considered information about the development available on the Council’s website;
• asked for and considered the Council’s comments and supporting papers and photographs about the complaint;
• shared Council information with Mr X; 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

7. Most development needs planning permission from the local council. People may seek advice from councils about whether a proposal may be acceptable in planning terms before making a formal application. Any advice given by councils is not binding as they must consider each planning application, when made, on its own merits.
8. Councils must also decide applications in line with relevant policies in their development plans unless material planning considerations indicate they should not. Material considerations concern the use and development of land in the public interest but not private matters. Examples of material considerations are traffic generation and overlooking. The developer’s behaviour, the view from peoples’ homes and potential changes to house prices are not material planning considerations.
9. Councils must publicise planning applications so people may comment on development proposals. Peoples’ comments on proposals that concern land use and planning matters will be material considerations, which councils must take into account when deciding the application.
10. A planning case officer may, but does not have to, visit the development site when considering a planning application. The case officer may also write a report assessing the proposed development against relevant policies and other material planning considerations. The report usually ends with a recommendation to approve or refuse the application. The courts have made 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.

11. Planning policies may pull in different directions, for example, promoting new housing and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application. A senior council officer will decide most of their council’s planning applications.
12. Councils must give reasons for refusing planning permission. This helps people decide, for example, whether to appeal the decision or change their proposals to overcome the refusal reasons to gain planning permission.

What happened

13. The Council received two planning applications to develop land (‘the Site’) near Mr X’s home. The applications sought planning permission for what were similar proposals to develop the Site. Mr X objected to the applications because of the likely impact of both development proposals on his home. Different Council planning case officers assessed the first and second applications. The Council refused planning permission for the first application and granted permission for the second application.
14. Mr X complained to the Council about its decision to grant planning permission. He said the approved development was “very similar” to that previously refused. Mr X said the Council wrongly referred to the development reducing in size between the first and second applications. It also wrongly said the approved development complied with rules aimed at preventing an unacceptable loss of light to existing buildings. Mr X also said the Council had not fully taken account of a relevant planning policy (‘the Policy’) in granting planning permission.
15. In response, the Council said the approved development differed from that previously refused planning permission. The plans sent with the second planning application showed differences in ground levels on the Site and nearby land. This addressed one refusal reason. The Council also referred to the Policy and set out why it had found the approved development acceptable. Although it recognised there would be some loss of light to Mr X’s home. However, it accepted its planning officer’s report could have more clearly explained how the approved development addressed its earlier refusal reasons. But the lack of clarity did not affect its decision to grant permission and its two planning decisions were not inconsistent.
16. Mr X, not satisfied with the Council’s responses, came to the Ombudsman saying it had not properly considered the impact of the approved development on his home. Mr X also said the approved application plans remained inaccurate and the Council had not taken account of changing ground levels. Mr X also raised concerns about the conflicting decisions of the two Council planning officers that had assessed the first and second applications.

Summary of key points from the Council’s comments to the Ombudsman

17. The Council said planning applications sought permission for development on the application site shown on the relevant plan. There was no requirement for application plans to accurately detail land and buildings outside the application site. And any plan inaccuracies concerning neighbouring land did not invalidate a planning application.
18. The Council accepted it had wrongly referred to the depth of the development reducing between the first and second applications. But the scale of the development had reduced. And the depth of the approved development closest to Mr X’s home was in line with the preapplication advice it had given the developer. The Council also pointed to both its planning officer’s reports finding the development closest to Mr X’s home acceptable in planning terms.
19. The Council accepted the second application plans did not accurately show Mr X’s home. It had used the Building Research Establishment’s (BRE) good practice guide in assessing the impact of both development proposals on light to existing buildings. This had two stages: deciding if development breached the guidance; and then considering if any non-compliance caused planning harm. Here, using Mr X’s drawings, which correctly showed his home, the approved development met the overall BRE tests.
20. The Council accepted its planning officer’s report on the second application did not specifically address the impact of part of the development. However, the resulting planning permission included a condition related to that part of the development.
21. The Council said it had properly considered both applications and its decisions were sound. The approved development did not have a significant impact on Mr X’s home. And it could not have justified refusing planning permission.

Consideration

Introduction

22. We are not an appeal body. This means we do not take a second look at a Council decision to decide if it was wrong or ask if the Council could have done things differently or better. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong (see paragraph 4 of this statement).
23. I have carefully considered all the information provided by Mr X and the Council. However, as a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every question a complainant may have about what the Council did or arbitrate on the party’s differing views. So this statement does not, and does not need to, address or resolve every detailed point and issue raised in Mr X’s correspondence with the Council. Rather, this statement concerns whether there was evidence of fault having potential to cause significant injustice in the Council’s decision to grant planning permission. And my investigation focused on the three complaint issues set out a paragraph 1 of this statement as they directly affected Mr X, his family and home.

Inaccurate application plans

24. The Council’s reasons for refusing the first application included its plans not having cross-sections showing changing ground levels. Mr X said the second application plans, which included cross-sections, remained inaccurate. The inaccuracy concerned the approved second application plans not correctly showing the relationship of his home to the proposed. And this inaccuracy affected the Council’s assessment of the impact of the approved development on his home.
25. Application plans need to accurately show the development site and development proposals. Here, the approved second application plans showed the Site and the development proposals. The Council was entitled to accept the second application plans as accurate unless it was clear, or brought to its attention, they included substantive errors. Here, Mr X’s objections to the second application referred to inaccuracies in the plans. So the Council was on notice of Mr X’s concerns about the plans before it decided the second application.
26. The evidence included photographs provided by both Mr X and the Council showing parts of the Site and Mr X’s home. The Council’s photographs predated its decision to grant planning permission for the second application. Photographs can be misleading. But the balance of the evidence showed the approved second application plans did not accurately portray Mr X’s home. The evidence also showed the planning officer for the second application visited the Site. The planning officer, from the photographs and visit, would see both the relationship of Mr X’s home to the Site and the changing ground levels. Together with Mr X’s objections, the evidence showed the Council would have been aware the second application plans did not accurately show Mr X’s home. So, I cannot find the Council decided the second application without knowledge of the changing ground levels or the plan inaccuracy concerning Mr X’s home. I do not therefore find fault by the Council on this point.

The impact of the Development on Mr X’s home

27. Mr X said the Council had not properly considered the impact of the development on his home in approving the second application. Mr X’s concerns included the approved development being overbearing and affecting his outlook, and unacceptably reducing light and privacy to his home. Assessing these impacts linked to Mr X’s concern about inaccurate plans.
28. The Council pointed to its planning officer’s report on the second application. It said the report showed it took account of Mr X’s objections, the Policy, and considered the development’s impact on Mr X’s home. Its complaint responses had further detailed how it assessed the impact of the approved development on Mr X’s home, including its application of the Policy.
29. The Council accepted its officer report on the second application could have been clearer. I agreed. However, the report provided evidence the Council considered the Policy and the impact of the approved development on Mr X’s home in deciding the second application. The report also said the approved development ‘complied’ with the BRE guidance. And the Council’s later comments to Mr X and the Ombudsman evidenced it correctly found overall compliance with the BRE guidance despite the application plans not accurately showing Mr X’s home.
30. I recognised Mr X might expect the Council’s report assessing the second application to be more detailed. However, in planning terms, the Council was not dealing with ‘major development’. It would likely decide each year many applications for development like that proposed by the second application. The officer report on the second application provided a suitable and proportionate assessment of the proposed development (see paragraph 10). Overall, I could not find the Council failed to properly consider the impact of the approved development on Mr X’s home. I recognised Mr X found the approved development unacceptable. However, without evidence of fault in how the Council reached it decision on the second application, I could not question the grant of planning permission (see paragraph 4).

Differing officer views

31. The two applications to develop the Site were assessed by two different Council planning officers. Mr X said the Council should have asked a third planning officer to consider the second application given two officers had reached differing views on similar development proposals. The Council said its working practice was for the same planning officer to handle applications for similar development proposals on a site. That had not happened here as the officer dealing with the first application left its employment before it decided the second application. However, the same senior officer, acting for the Council, had considered both officer reports and decided to refuse the first and approve the second application.
32. It was for the Council to decide how it allocated its resources, including staff. Here, the Council explained why different planning officers assessed the first and second applications. However, there was continuity as the same senior Council officer decided both applications for the Council. I found no evidence of fault here.

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Final decision

33. 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