Summary: Miss B complained that the Council approved a planning application for development next to her property without good reasons and against the officer’s recommendation to refuse it. We have found fault in that the Council failed to provide any reasons for the decision which caused significant distress and uncertainty to Miss B as to why the decision had been made. The Council has agreed to apologise to Miss B, pay her £500 and provide training to members of the planning committee.

The complaint

1. Miss B complained that North East Lincolnshire Council (the Council) approved a planning application for development next to Miss B’s property, without good reason and against the officer’s recommendation. This has caused Miss B, significant distress due to the impact on her privacy.

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The Ombudsman’s role and powers

2. 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)
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. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
5. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Planning decision-making

6. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
7. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.

Probity in Planning: Advice for Councillors and Officers making planning decisions: Local Government Association (2019)

8. This guidance notes that the courts have expressed the view that the committee’s reasons for a decision should be clear and convincing. If the planning committee makes a decision contrary to the officer’s recommendation, a detailed minute of the committee’s reasons should be made and a copy placed on the application file.

LGSCO planning guidance: recording planning decisions (2018)

9. Our own guidance for councils on this issue states that we expect planning committees to ensure they record clear reasons for their decisions, if they go against officer recommendations.

What happened

10. Miss B lives in a first floor flat. The owner of the property next door applied for planning permission for a balcony on top of the garages adjacent to Miss B’s landing window and overlooking her small garden area.
11. The planning committee considered the application. The case officer’s report recommended refusal due to the unacceptable impact on Miss B’s amenity, the overbearing nature of the works and the proposed use of the terrace, so close to Miss B’s garden. At the first consideration the Committee narrowly voted to refuse the application but then passed a motion to defer the application to allow the applicant to submit amended plans.
12. The committee then considered amended plans several months later. The applicant had reduced the size of the terrace taking it several metres further away from Miss B’s property. The case officer again recommended refusal for the same reasons: impact on the neighbouring residents and detrimental to the street scene. They noted that the proposed screening impacted even more adversely on the neighbouring residents as it was now glass rather than an opaque material and a lower height. The committee members after a discussion unanimously approved the application.
13. The minutes of the meeting show that the case officer presented the case and repeated their reasons for recommending refusal. They also show that several councillors said they now supported the plans. One said they could not see a legal reason why the applicant could not sit on the roof now. Another said if it was an application for a side extension no-one would object to that. A third said it was a good design.
14. Miss B complained to the Council, but it did not uphold her complaint, saying proper procedures had been followed. Miss B complained to us.
15. In response to my enquiries, four of the ten councillors have provided a statement explaining their reasons for approving the application. The main view expressed was that the amended proposals moved the balcony far enough away from Miss B’s property to be acceptable.

Analysis

16. While it is not my role to re-examine the merits of the decision made by the planning committee or to express my view on the impact of the development on Miss B’s amenity, it is my role to consider whether there was any fault in the way the Council reached that decision.
17. In recent years we, the courts and the local government association have made clear that councils, particularly in cases where the decision is contrary to the officer’s recommendation, should give clear reasons why the decision was made.
18. In this case there is no record of any reasons why the members of the committee approved the application. There is no reason given why the impact on Miss B’s privacy (both through the window and in her garden) was considered acceptable, or why the proposal was good design. The reasoning referring to a side extension is not relevant as that was not the application in front of the committee and a side extension is a materially different consideration open to conditions regarding the position and type of glazing.
19. It is not clear from the decision and the minutes why the councillors rejected the professional recommendation of the officer based on planning considerations and approved the application. This was fault which has caused Miss B, uncertainty as to why the decision was made and distress at the potential overlooking during the summer months. I accept that four councillors have since provided some reasons for approval so I have not concluded that the decision would have been different had reasons been given, but I do consider the failure to record any reasons caused significant injustice to Miss B.

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Action

20. In recognition of the injustice caused to Ms B, I recommended that the Council, within one month of the date of my final decision:
• Apologises to Miss B and makes a symbolic payment of £500.
21. I also recommended the Council within three months provides training to all members of the planning committee reminding them of the basic principles of good decision-making, including the need to record clear reasons for all decisions particularly where the decision is contrary to the officer’s recommendation.
22. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Decision

23. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman