Summary: X complained about how the Council dealt with a planning application that affected the setting of a listed building. We found fault because the Council failed to consult Historic England, and the case officer report incorrectly described the separation distance between the development and the nearest listed building. We made recommendations to remedy the fault and the injustice caused to X, which the Council has accepted.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to properly assess the impact the proposed development would have on their home, which is a listed building.
3. X would like the Council to revoke its decision and to pay them compensation for the impact its decision has had on them.

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 significant injustice, or that could cause injustice to others in the future 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 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.
7. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of the comments I received.

Back to top

What I found

Planning law and guidance

8. Before councils consider planning applications, they must check what information they are likely to need. When they are satisfied they have the information they need to consider an application, they ‘validate’ the application and the planning process begins.
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. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I– Buildings of exceptional interest;
• Grade II* – Buildings of particularly important/more than special interest;
• Grade II – buildings of special interest.
14. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
15. Regulations require councils to consult Historic England if proposals would affect the setting of Grade I or Grade II* listed buildings.

What happened

16. The Council received a planning application for development on land next to X’s home, which is a Grade II* listed building.
17. The application included a heritage statement with photos, which explained the impact on listed buildings status and their setting. The report was written by an experienced conservation and heritage expert. The Council did not consult Historic England about the application, and it has already accepted this was fault.
18. The planning application 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;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
19. The planning application 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;
• comments from X mentioning the listed building
• comments from other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
20. There were no comments from a heritage officer. The case officer report says the nearest listed building is over 50 metres from the site and so its policy on conserving and enhancing heritage assets would not be assessed.
21. I used the measuring tool available on the Council’s planning portal and found the side elevation of the proposed development to be less than 10 metres from the side of X’s home, the listed building, and the garage which is converted to an annexe is even closer.
22. In response to the complaint the Council said it had implemented additional training for validation and planning officers.
23. After receiving X’s complaint, the Council said it has also considered the application in consultation with senior planning and conservation/heritage officers. It found no evidence to suggest the outcome would have been any different and so it did not consider revoking its decision to approve the application.

My findings

24. 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.
25. The Council was at fault because it did not consult Historic England before it considered the planning application.
26. The case officer’s report says the nearest listed building was 50 metres away, but X’s home is much closer. The report is incorrect, and this is also fault.
27. The Council has accepted fault in relation to consultation processes and has said it has provided additional training for its officers.
28. However, it is possible that its working practices and procedures could be improved and so I recommended a service review.
29. I also recommended an apology for the disappointment, frustration and confusion its fault caused to X.
30. The Council accepted my recommendations. The Council should take account of our guidance on remedies when drafting the apology.
31. I will not recommend any further remedy, including any financial payment for X, and my reasons are as follows:
• The Council’s powers are intended to protect heritage assets for the public, and not the private interests of those who own those assets.
• I have seen no evidence that shows that, but for the fault I have found, it is more likely than not that the outcome would have been different. Heritage matters were considered by the applicant’s independent expert and also the Council’s specialist officers. All concluded the impact the development would have on heritage assets was acceptable, and I cannot speculate what English Heritage might have advised or what impact its advice would have had on the Council’s decision.

Back to top

Agreed action

32. The Council will apologise to X for the injustice caused by the fault I have found. This will happen within one month from the date of this decision.
33. The Council will review its working practices and procedures to check whether they are fit for purpose. If it makes changes to its practice and procedures, it will ensure relevant staff are aware of them. This will happen within three months from the date of this decision.
34. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

35. I found fault that caused an injustice to X and might happen again. The Council agreed to my recommendations and so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman