Summary: Mr B complained about the process followed by the Council when it gave planning permission for a house behind a listed terrace where he lives. We upheld the complaint, finding the Council’s planning committee did not follow its published procedure after it initially refused to support the planning application. We also found the Council at fault for delay in answering Mr B’s complaint. We considered these faults caused injustice, although we could not say the outcome of the planning application would have been different. The Council has accepted these findings and at the end of this statement, we set out the action it has agreed to remedy that injustice and to avoid a repeat.

The complaint

1. Mr B complained on his own behalf, and that of neighbours living in a row of listed terraced houses. In 2022 they objected to a proposal from the owner of one of the houses (‘the developer’) to demolish two garages to the rear and replace those with a part two-storey house (‘the development’). Despite the objections of Mr B and his neighbours, including to the height and mass of the development, the Council’s planning committee approved it.
2. Mr B complained the Council was at fault for approving the development because:

• its committee did not consider alternative proposals made by objectors for a smaller development on the site;
• its planning officer’s report and presentation to committee, did not properly engage with the objections made by Mr B and others;
• the report and presentation did not use objective terminology to describe the development;
• the presentation contained an inaccurate drawing and inaccurate information about how the development proposals had changed over time;
• the committee did not sufficiently consider the importance of rear access to the listed building terrace and the impact of allowing development within the curtilage of a listed building;
• that after initially refusing the application, the committee followed the wrong procedure before voting to approve the application having removed an advisory note officers suggested including in the decision notice.

3. Mr B said as a result the Council approved development that was too large, out of keeping with the street scene and might set an unwelcome precedent for development behind the listed terrace.

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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. 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)
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 have considered this complaint

7. I have considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
8. I gave both Mr B and the Council an opportunity to comment on a draft version of this decision statement. I took account of their response to the draft decision, before finalising the content of this statement.

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What I found

Legal considerations

9. Councils should approve planning applications that accord with policies in their local development plan, unless other material planning considerations indicate they should not.
10. Material considerations are matters that relate to the use and development of land in the public interest. They can include matters such as:

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

11. Covenants are rules that buyers agree to when buying property. They are private agreements that affect land use. They are not therefore a material planning consideration.
12. Local planning policies can sometimes pull in different directions. For example, policies that promote residential development and those that aim to protect residential amenity. It is for the decision maker to decide what weight they should give to any material consideration, when deciding a planning application.
13. Councils can approve planning permission subject to imposing planning conditions, which are legally binding on developers. Planning decision notices can also include advisory notes for applicants, which are not legally binding.

Council decision making

14. Councils delegate some planning decisions to officers. Elected Councillors take other decisions at planning committee. Members of the committee will receive reports from officers, considering the case for or against approving planning permission. Officers will advise their opinion and recommend one or the other.
15. The Council has a procedure which explains what should happen if members of the planning committee decide to refuse a planning application, contrary to officer advice. It says the Chair should “move a motion to DEFER a decision (allowing more time for Members to propose grounds for refusal if needed) and request that Officers bring back a report to the next meeting of the committee with detailed advice on these grounds, supporting Members to make a final decision” (emphasis as per original). The procedure says if the committee does not support the Chair’s motion, then they will seek an alternative motion.

Council complaints policy

16. The Council aims to reply to complaints at stage one of its complaint procedure within 15 working days.
17. If a complainant is unhappy with their reply they can ask the Council to review its response. The Council says it will respond at stage two of its procedure within 20 working days.

The key facts

18. Mr B lives in a terraced property that forms one of a row in the Council’s area. The properties have listed building status and lie within a conservation area. Most of the houses have buildings at the end of the gardens built later than the terrace, including garages and other outbuildings. These front on to ‘Road X’.
19. In 2021 a developer submitted a planning application proposing to demolish two garages to the rear of one of the terraced houses and replace them with a part two-storey house. Previously the developer had withdrawn an application in 2020 to demolish the garages and build a new house.
20. The plans for the development changed over time, and three times the Council consulted neighbours on the proposed development. Each time it received objections from occupiers of the terraced houses and others. They objected mainly to the proposed height and mass of the development.
21. Late in 2022, the planning application went to one of the Council’s planning committees for consideration. Members of the committee received a report from planning officers which recommended approving the development subject to certain conditions. Officers prepared a decision notice also containing a suggested advisory note to the developer. This explained the Council has a policy that it will not approve parking or visitor parking permits for the occupiers of new build houses in the locale of the development.
22. The officer’s report summarised objections to the development and noted that these included concerns about:

• the principle of development;
• the impact on the listed building and conservation area;
• the loss of garden space;
• the design of the development and its impact on neighbouring properties;
• the impact on highway safety and parking provision.

23. In their report officers set out their view that they did not think the development would harm the listed building’s setting or the conservation area. They cited the variety of styles of building on Road X and a neighbouring row of ‘mews style houses’. They described the proposed development as also for a ‘mews style house’. The report noted the development, if approved, would be the first approved behind the listed terrace and would be within the curtilage of a listed building. But officers considered it would be “proportionate and subservient” to the listed building.
24. The report also explained that occupiers of the listed building (the end terraced house) did not currently have access to the garages or a rear access to the house. So, that would not change if the Council approved development. The report also said the development would not have a negative impact on the amenity of neighbouring occupiers because of its size or resulting from any overlooking.
25. In considering the impact of development on local roads and parking, the report explained that Council policy would not allow the occupier of the development to obtain a parking permit or visitor parking permit.
26. The report also noted that some objectors had referred to a covenant attached to the listed buildings. This limits the maximum height of any outbuildings in the gardens of the properties. Objectors believed the development would breach that covenant. The report explained why this was not a material planning consideration, and so the Council could give this no weight in its decision making.
27. Following publication of the report, but before the committee met, Mr B prepared a document for the committee to consider. This provided comments on the officer’s report and disagreed with some of the views expressed. But it said objectors would accept a compromise. They would not object to a smaller house on the site; one that was single-storey and limited in height to that set out in the covenant. Mr B said the restriction to the size of outbuildings, created by the covenant, contributed to the terrace having listed status. The Council circulated this document to Members of the committee, in a supplementary bundle of papers before the meeting.
28. The planning committee spent around an hour considering the planning application, before making a decision. They first heard presentations of around one minute each from five speakers, three of whom objected to the development. One presentation was from a Ward Councillor who spoke for Mr B (who could not attend). The Councillor said residents did not oppose the principle of development. But wanted a smaller, single-storey house. Another speaker made the same point.
29. Next, members of the committee received a presentation from officers which included photographs of the development site and copies of the plans. The presenting officer summarised objections to the development and the views of officers. The presentation noted again that if approved, the development would be within the curtilage of the listed building and the first such development to the rear of the listed terrace. The presenting officer explained that officers considered the development would enhance the listed building’s setting by replacing the dilapidated garages.
30. In their discussion Members made comments about previous attempts to develop the site and the ‘compromise solution’ put forward by objectors to approve a single-storey development. Officers defended the proposal saying the developer had scaled back their initial proposal, to a building they thought acceptable in size and impact. One Member pointed out however the development still appeared bigger than one previously refused for the site.
31. Members also raised questions about parking permits, where officers confirmed Council policy was not to give parking permits to the occupiers of new build housing in the area. They confirmed this was not a proposed condition of development, but advice.
32. When Members came to vote they were split. The Chair gave a casting vote and voted against the motion to approve the development. The presenting officer said the committee needed to agree on an alternative motion. The Chair asked if Members could vote on whether to approve a smaller dwelling and the Officer said no – they could only vote on the proposal in front of them.
33. One Member suggested deferring a further decision to visit the site. The committee rejected this motion.
34. The Presenting Officer then suggested that Members consider revisiting the advisory note on the proposed approval notice that referred to parking permits. The Officer noted some Members had expressed concern with the policy. One Member said that if the decision notice removed wording referring to a prohibition on visitor parking then he might change his vote. Another Member therefore proposed a motion to approve the development subject to removing the advisory note and this was carried, with the Member who spoke previously voting in favour.

Mr B’s complaint

35. Mr B complained about the Council’s decision in November 2022. The Council did not reply to his complaint until June 2023. It apologised for the delay in reply, but did not explain the reasons for it.
36. In its reply the Council sought to assure Mr B that Members had seen the document he prepared after publication of the officer’s report. It said that Members could only consider the application in front of them, and not a hypothetical alternative. The Council said that it considered Members knew of objectors’ concerns and officers had provided a “comprehensive and robust” analysis of all material planning considerations. It set out the three votes Members had taken before approving the planning application.
37. In January 2024 Mr B escalated his complaint to stage two of the Council’s complaint procedure. He suggested the Council had presented a flawed report to committee because it did not:

• identify all occupiers of the listed terrace objected to the development;
• identify that objections focused on the size and scale of development, not the principle of it;
• properly consider the impact of the proposed development on neighbouring properties;
• define terms such as ‘harm’, ‘subservience’ or ‘mews style house’. On the latter point Mr B suggested the covenant attached to the terrace set out a suitable test for determining the size of a building ‘ancillary’ to the main building. He also drew attention to a mews house he considered ‘subservient’ located elsewhere on Road X;
• explain the only reason occupiers of the end listed terrace could not access the rear garden or have rear access to the property was because of the actions of the developer who prevented that access;
• adequately consider the impact on the listed building, a reason he said the Council had refused earlier plans to develop the site.

38. Mr B also made further comments critical of the committee’s consideration. He said officers failed to properly advise the committee on considerations around the impact of development on the listed building and the position of objectors. Also, that drawings presented to committee showing the height of the proposed development were misleading as they did not show the difference in height between it and the neighbouring mews-style house on Road X. He also said Members failed to follow the correct procedure having voted at first not to approve development. He said the Councillor who changed his vote following the removal of the advisory note had made an “irrational and incomprehensible” decision.
39. The Council replied in June 2024. It apologised for the delay in reply, which it said was because of significant demands on its planning service. The Council recognised a difference of opinion in how it assessed the planning application. But it considered its officers report and presentation were “correct and in accord with the relevant standards”.
40. During my investigation the Council said that in 2023 it faced an extensive backlog of planning applications and prioritised reducing that backlog over dealing with complaints. It said with the backlog reduced it had responded to over 50% of complaints received about its planning service in 2024 in time. In the final quarter it had responded in time in 13 out of 16 cases.

My findings

41. I did not find fault with the information Members of the planning committee had available to them to decide the planning application. Council officers provided a detailed report, gave a presentation at committee and answered questions. In addition, Members had available to them the supplementary bundle of papers which included the detailed representations made by Mr B to the committee in writing following publication of the officer’s report. The committee also received a summary of Mr B’s objections presented by his Ward Councillor and heard other objections in person. Further, it is clear some had a degree of familiarity with the site.
42. I recognised Mr B disagreed with certain judgements reached by planning officers in their report. I considered those disagreements centred mainly around a series of subjective judgements. For example, at what point someone might decide a new house was ‘unacceptable’ because of its size or impact on its neighbours. Or, whether a house design could be said to be a ‘mews style house’.
43. While I respected Mr B’s right to disagree, I could not find that officers acted with fault when putting forward their opinions. As disagreement, while understandable, is not evidence of fault. I did not find officers kept from the committee anything relevant to its decision making. And while the officers’ report and presentation clearly counted towards Members’ decision making, they evidently considered also the counter-opinions of objectors.
44. In only one area did I consider the presenting officer possibly erred in what they told the committee. They implied the development proposal put forward was smaller than previous plans for the site. Looking at the plans for a withdrawn application in 2020, and plans amended during this application, I considered the application in front of the committee was up to a metre higher than the earlier proposals.
45. However, I did not consider the officer clearly misled the committee. And even if I had found fault here, I considered it did not cause injustice. First, there was no question Members did not know the height of the proposed development. Second, objectors drew attention to this matter in submissions and one Member specifically drew attention to it in the debate. So, the committee knew of the potential discrepancy. And third, the judgement on whether to approve the development, did not focus specifically on the height of the development alone.
46. I also found that before they decided the application, Members knew:

• there were many objections to the development proposal from occupiers of the listed terrace, including Mr B. I did not consider it relevant if Members believed it was some or all occupiers who objected, given they knew of the strong feelings from those who had opposed the development;
• objectors did not oppose development in principle. They had put forward a ‘compromise’ proposal they wanted the committee to consider; to approve a single storey building on the development site. The fact the committee went on to discuss if it could vote on a motion to approve such a building, shows it took account of objectors’ representations on this point;
• development would be within the curtilage of the listed building; a point made in both the report and presentation to committee;
• objectors did not agree with officers’ views on the impact of the proposed development, either on its neighbours or the listed building’s setting;
• objectors worried the development, if approved may set a precedent including the loss of access to Road X from rear gardens;
• that a covenant attached to the listed building terrace. This was not a material planning consideration, but objectors drew attention to it because of what it said about the size of outbuildings they considered reasonable.

47. It was then for Members to decide the relative weight to give these considerations. If there had been a straightforward vote to approve the application, I would not have had any reason to criticise the committee. Because based on the evidence it heard and considered, the committee could reasonably choose to exercise its judgement as it saw fit.
48. However, it became clear the vote to approve the development was not straightforward. I found that having initially refused the planning application contrary to officer advice, the Council did not follow its own written procedure. The Chair should have moved a motion to defer the planning application until the next committee meeting to request a report from officers.
49. They did not do this and did not receive advice to do so, despite consulting the presenting officer. The Council told me it regarded what followed as a ‘minor variation’ from the procedure, considering the committee acted in line with national planning guidance. The extract it quoted says local planning authorities should “approach decisions on proposed development in a positive and creative way” (see National Planning Policy Framework paragraph 39). It said this meant “local arrangements must always be read in the context of the overarching national legislative and policy context”. It accepted the procedure did not sufficiently explain this. But the national policy context meant the committee did not have to consider a deferment motion following a refusal. Or it should only do so as a last resort.
50. Further, the Chair of the committee pointed out the motion to undertake a site visit, included deferring a decision to enable this. So, the committee had voted on a deferral motion.
51. I was not persuaded by these arguments. I considered there would be no inherent fault had the Council procedure given the Chair discretion to consider alternative motions to the deferral motion set out in the procedure. This could reasonably be a ‘last resort’. But the procedure did not say this. It said that if the committee refused permission contrary to officer advice, the Chair would move a deferral motion. I considered the use of the word ‘will’ meant it was expected the Chair should test the committee’s view on this matter. Had the procedure intended to give the Chair more discretion it would have said the Chair ‘may’ move such a motion instead.
52. That said, even given the current wording I may not have found fault had the Council recorded reasons for departing from its own procedure. This could include referring to national planning guidance considered relevant. But it gave no reasons here.
53. Further while the site visit motion, if passed, would have included an inevitable deferment of the decision, I considered this was not the same as the deferment motion set out in the procedure. Because it asked Members to defer a decision to undertake a site visit, as opposed to asking officers to come back with further advice on reasons for refusal. Those are two distinctly different propositions.
54. Therefore, the failure to follow the correct procedure without reasons was a fault.
55. I went on to consider the consequence of this fault. I could not say for sure what would have happened had the Chair moved the deferment motion set out in the procedure.
56. Had the committee passed such a motion, Members would have returned to reconsider the application at a future committee. The reason the procedure requires this pause is to ensure there are sound planning reasons for any refusal. The Council does not want to refuse permission and leave itself open to an applicant appealing in circumstances where an appeal stands a high chance of success. So, officers need time to draft reasons for refusal that reflect the planning committee’s views and advise on their likely defensibility at appeal.
57. I could not say what officers would have come back with in this case, nor how the committee would have responded to their advice. But clearly its decision was a finely balanced one. This was reflected in what happened when instead of following procedure, Members chose to vote on an amended motion that removed an advisory note from the proposed planning decision. An advisory note is just that. It contains nothing legally binding on the Council nor the planning applicant. In this case the advisory note was clearly helpful to any planning applicant. It told them that if the Council approved development they should be mindful future occupiers of the property would likely not qualify for a parking permit or a visitor’s permit. I could not see what benefit it served anyone to remove this helpful advice from the decision notice.
58. But I noted that during debate, some Members had expressed qualms about the fairness of this policy. However, their views could make no difference to the policy, either in its general application or in its application to a future occupier of the proposed development. So, it was hard for me to see how the presence or otherwise of the advisory note could lead a Member to change their vote.
59. I did not consider this a fault in its own right, as the fault in this case lay in the committee having this vote without first having voted on whether to defer. But what this sequence of events showed was that Members were open to reconsidering the merits of the planning application, even after initially rejecting it. I took from this that if the application had returned for a further vote at the next committee, Members could have approved it rather than maintaining their objection. It may also have meant there could be no guarantee that a motion seeking deferment to the next meeting would have passed, as Members may have preferred to find a way forward without considering the application a second time.
60. This meant I just could not say what would have happened had the committee followed the correct procedure. I found therefore the Council’s fault had caused Mr B (and other objectors) uncertainty; which we consider a form of distress and therefore an injustice.
61. I noted also there was no scope for the committee to have debated the ‘compromise’ proposal put forward by Mr B and others. I appreciated they proposed this with good intentions. But the planning process is not an arbitration process between developers and objectors. Developers may sometimes compromise their plans because of objections, but this must be their own choice. Alternatively, planning conditions can sometimes require minor changes to development to take account of objections. But it is not for planning officers or committees to impose conditions that fundamentally alter the planning application in front of them.
62. Finally, I considered the Council’s complaint handling. I found that was subject to unacceptable delay at both stage one and stage two of the complaint procedure, with both responses provided significantly later than set out in the Council’s stated policy. That was a fault.
63. This further fault caused Mr B injustice. Whenever anyone complains to the Council, they will use some time and trouble in doing so. But in cases where there is unacceptable delay this will be greater due to the added frustration waiting for a response. That was a source of further injustice to Mr B in this case.

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Agreed action

64. To remedy the injustice identified above, the Council agreed that within 20 working days of a decision on this complaint it would:
1. provide an apology to Mr B accepting the findings of this investigation and in line with advice in paragraph 65 below;
2. make a symbolic payment to Mr B of £250 in recognition of the time and trouble caused to him, by delays in answering his complaint.
65. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making its apology.
66. I have not recommended a symbolic payment in recognition of the distress caused by uncertainty (paragraph 60). I considered this would be inappropriate taking account the new house would not impact significantly on Mr B personally. I recognised his concern in pursuing his complaint was always for the precedent he feared this development would create. But there was nothing I could recommend on this front, as the Council must always consider each application on its merits. So, its refusal or approval of this application would never prevent another application that might propose development to the rear of the listed terrace. It also followed from what I found, that I could not recommend the Council seek to quash the planning permission, as Mr B would have preferred.
67. However, I considered the Council could still learn lessons from this complaint. It told me that it planned to update the guidance to committee, as part of an ongoing improvement programme. I understand that this will reconsider the options available to committee chairs where members reject a planning application contrary to officer advice. In the meantime, and within two months of this decision, it will:

• issue a reminder to all committee Members and presenting officers of the current procedure to follow if the Council rejects officer advice to approve a planning application. If Members decide to depart from that procedure they must record reasons why.

68. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

69. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr B. The Council accepted these findings and agreed action that I considered would remedy that injustice. Consequently, I could complete my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman