Summary: Mr X complained the Council failed to properly consider a neighbour’s planning application which affected a conservation area. We found there was fault in the case officer’s report and in the consideration of a later Certificate of Lawfulness application. However, we found this did not lead to any injustice.

The complaint

1. Mr X complains that the Council failed to properly consider his neighbour’s planning application to develop their property, which is in a conservation area. The application included the installation of solar panels.
2. Mr X complains that the Council failed to preserve the appearance of the traditional slate roof and he wants the Council to revoke the planning permission and to have the solar panels removed.

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The Ombudsman’s role and powers

3. 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)
4. 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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What I have and have not investigated

5. We have considered Mr X’s complaint about a 2024 planning application. We have not investigated earlier planning applications that are referenced as part of this complaint.

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning Permission

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; or
• The impact on neighbour amenity.

Publicity for Planning Applications

10. Regulations set out the minimum requirements for how councils publicise planning applications.

For major development applications, councils must publicise the application by:

• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.

11. For all other applications, including minor developments, councils must publicise by either:

• a site notice; or
• serving notice on adjoining owners or occupiers.

Permitted development

12. 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’.

National Planning Policy Framework: Planning Enforcement

13. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 60)
14. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What Happened

Planning permission

15. Mr X’s neighbour applied for planning permission to make amendments to their property in 2024. The property is part of a terrace within a conservation area. Amongst other things the application sought permission to place Photovoltaic Panels (Solar Panels) on the roof. The application included a plan showing the location of seven solar panels and the applicant provided additional information about the proposed panels.
16. The Council posted a site notice about the application. The Council also sent neighbour notification letters to Mr X and other neighbours. Mr X told us he did not recall receiving notification and he doubted that the Council had posted the site notice or had posted it away from the site where it was not easily viewed. As a result, Mr X says he was unable to comment prior to the application being decided.
17. The Council approved the planning application in Spring 2024.
18. Mr X only became aware of the application when work began. He expressed concerns and complained to the Council in Autumn 2024. He raised concerns that he had not been afforded the opportunity to comment when the application was being decided. He also stated that the applicants had not correctly filled in their planning application in various places. Key to the points Mr X made about this were that works to the roof were not declared on the application and the applicant stated the site was not visible from the road. He believed this misled planning officers.
19. Mr X also complained that the case officer’s report for the application was flawed in various ways. Key issues Mr X raised in his complaint were that the report did not sufficiently consider the impact of solar panels in a Conservation Area, and it incorrectly referred to these as PV Tiles (Photovoltaic tiles) which were different, and arguably less intrusive than solar panels. He also noted the report did not give reasons why solar panels were found to be acceptable.
20. In response to Mr X’s complaint the Council acknowledged that use of the description ‘photovoltaic tiles’ could cause confusion and the report could have been clearer, but it did not affect the decision. It stated the case officer was aware that the application was for panels, not tiles, and it was panels that were approved. The Council commented that the case officer was aware the site was in the conservation area, and they were familiar with it. It stated the report provided a robust and detailed consideration of the impact on the conservation area and other matters. The Council noted that it was possible for solar panels to be erected on a property within a conservation area without formal planning consent. This is because such development was possible under permitted development rights, provided they met the relevant criteria. The Council did accept the wrong local plan was referred to in one of the planning conditions for the permission.
21. In a further response to the complaint the Council accepted the case officer’s reference to photovoltaic tiles was incorrect. It also agreed that there was no specific assessment of the solar panels in the report and it agreed it should contain a more detailed assessment of the development. However, the Council considered it was sufficient, taken with the application documents to decide the application. The Council partially upheld Mr X’s complaint.

Enforcement

22. In November 2024 Mr X reported a suspected breach of planning control. This was because his neighbour had installed more solar panels than the planning permission allowed. Shortly afterwards, Mr X’s neighbour applied to the Council for a Certificate of Lawful Development to keep all of the panels they had erected. The application was made on the basis that the solar panels did not need planning permission because they benefitted from permitted development rights.
23. The Council told Mr X it would need to consider and respond to the neighbour’s certificate application before deciding whether to take enforcement action.
24. The Council later approved the Certificate of Lawfulness application. The report on the Council’s files shows that it concluded the solar panels complied with Part 1, Class C of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GDPO). As a result, the Council concluded that the panels did not require planning permission and no enforcement action was appropriate.

Was there fault by the Council

25. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
26. If we find there was fault in the way an organisation made a decision, we consider if that fault impacted the outcome or led directly to an injustice to the person bringing the complaint.

2024 Planning Application

27. While I understand Mr X did not recall receiving a neighbour letter, there was no fault in the Council’s approach to publicising the application. Its records show it wrote to neighbours including Mr X. The Council also provided evidence that it had posted a site notice. There was no fault by the Council in this regard.

The Planning Application Form and Case Officer Report

28. I do not consider Mr X’s concerns about inaccuracies in the application form are significant. It is clear that the application included Solar Panels on the roof, and therefore work on the roof would be necessary. The case officer conducted a site visit and they were aware that the rear of the property could be seen from the public highway when reaching their decision. This is evidenced by reference, in the report, to other elements of the development at the rear being visible from the street scene.
29. A case officer’s report should contain sufficient detail to demonstrate that decisions were properly made and that due process was followed. 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.

30. We found the Case Officer’s report in this case was inaccurate and lacking appropriate detail in relation to the proposed solar panels. The report does not adequately set out how the Council decided the solar panels were acceptable. As the property concerned was in a conservation area, this should have been explained. This is made worse by the incorrect description of what was proposed as ‘photovoltaic tiles’ rather than what was proposed; solar panels. These issues represent fault by the Council.
31. When we find fault, we go on to consider whether this led to a different decision being reached, causing an injustice. I do not consider there was injustice arising from the fault we found with the case officer’s report. I have explained why in paragraph 37 below, because our view is related to whether the development was inherently acceptable through permitted development rights and whether it was appropriate for the Council to take enforcement action.

Enforcement/Certificate of Lawfulness

32. Councils are not under a duty to take formal enforcement action whenever they identify a breach of planning control. Rather, the NPPF requires them to strike a balance between acting to uphold the integrity of the planning system while also acting proportionately.
33. It will generally be regarded as unreasonable for a council to issue an enforcement notice solely to remedy the absence of a valid planning permission. Instead, it is obliged to assess whether what has been built is inherently acceptable, and to take into account the impact caused to decide what action is appropriate.
34. In this case, there was a breach of the planning permission that had been granted. This was because more solar panels were erected than the permission allowed. However, as the Council explained in correspondence with Mr X, subject to certain criteria, solar panels may be erected without express planning permission. This is because Class A of the GDPO allows for this. So, it was appropriate that the Council considered whether permitted development rules applied before taking any enforcement action.
35. I found that the Council’s consideration of the Certificate of Lawfulness application was flawed in this case. This was because the Council’s assessment of the application considered the requirements of Class C. The correct class was Class A. This was fault.
36. In response to our enquiries, the Council reviewed the application against Class A of the GDPO and set out its findings. Although its original decision was flawed, I am satisfied this did not affect the overall outcome. This is because the development carried out by Mr X’s neighbour did comply with the GDPO, Class A. So, notwithstanding the fault in the way the Certificate of Lawfulness was decided, there were no grounds for the Council to take enforcement action concerning the higher number of solar panels. So, the fault in considering the enforcement matter, did not lead to injustice.

Summary

37. We found there was a lack of explanation in some areas of the case officer’s report when deciding Mr X’s neighbour’s planning application. There was also an error in describing the solar panels being proposed. However, we found this did not lead to a different outcome on the planning application which caused injustice to Mr X. This was because the fault we identified did not lead to development taking place that would have been refused had the fault not occurred. I say this because the solar panels had the benefit of permitted development, regardless of the planning decision.
38. There was also fault in the way the Council decided the Certificate of Lawfulness. However, this did not cause injustice, because it did not lead to a different outcome.

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Decision

39. I find fault that did not lead to injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman