Summary: Mr and Mrs X complain the Council has not dealt with a planning application for a development near their home properly, causing avoidable distress and wrongly granting planning permission. Based on current evidence, the Council is not at fault.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, complain the Council has not dealt properly with a planning application near their home because it:
• did not take the 45-degree line from the correct position, as suggested in its guidance;
• should have requested/conducted a more detailed sunlight assessment;
• didn’t complete an equality impact assessment;
• did not properly assess material planning considerations due to omissions/errors in the information presented to the Committee (e.g. size of proposal; HMO use of building; orientation of PAs building, landscaping/vegetation on the boundary); and
• did not handle her complaint properly.
2. Mr and Mrs X say they have suffered avoidable distress and the planning permission should not have been granted.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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 considered this complaint

7. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
8. Mr and Mrs X 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

Law, guidance and policies

Planning permission

9. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise.
10. Material planning considerations may include the impact on neighbouring amenity. Material planning considerations do not include views from a property or the impact of development on property value.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Case officer reports & giving reasons for decisions

12. The purpose of the case officer’s report is not only to help the council decide on the application. It is also to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
13. 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 on 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.

What happened?

14. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
15. The Council received a planning application for a proposed development near Mr and Mrs X’s home.
16. Mr and Mrs X submitted an objection to the proposed development.
17. The Council considered the proposed development at a meeting of its planning committee. Mr and Mrs X made oral representations to the planning committee as well as submitting additional late information about their objections.
18. Mr and Mrs X complained to the Council. The Council did not uphold their complaint.
19. Mr and Mrs X asked the Council to consider using powers to revoke or modify existing planning permission. The Council declined to do so.
20. Mr and Mrs X asked the Secretary of State to consider revoking the planning permission granted by the Council. The Secretary of State declined to do so.

Analysis

21. 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 you disagree with the decision the organisation made.
22. I have reviewed the recording of the planning meeting together with the planning officer’s report and Mr and Mrs X’s representations.

45 degree rule

23. The Council’s planning guidance sets out how it will usually consider how development should relate to existing windows in neighbouring properties.
24. The Council explained why it had deviated from this guidance at the planning meeting which considered the proposed development. Mr and Mrs X clearly set out why they objected to how the Council were considering applying the 45 degree rule. The planning committee accepted the Council’s explanation and approved the planning application.
25. The Secretary of State noted, “the planning officer’s reasoning and transcripts of discussion at Planning Committee regarding the location from which the measurement was taken, and that clear reasons were given for the Council’s approach.”
26. The Council is entitled to deviate from its planning guidance provided it provides reasoning for doing so. The Council explained its reasoning at the planning meeting. The planning committee could have chosen not to accept that reasoning. It clearly understood the reasoning as it approved the application on that basis.
27. I have considered the steps the organisation took to consider the issue, and the information it took account of when deciding to apply the 45 degree rule in the way it did. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.

Orientation and Sunlight assessment

28. The issue of orientation was addressed in the planning meeting. The planning committee had clear plans available to them showing the relative positioning and direction of facing of both the applicant and objector properties. This information was also replicated in Mr and Mrs X’s representations. I am satisfied that the planning committee were aware of this factual information.
29. The planning officer’s report does not contain any reference to lighting impacts.
30. The Council confirmed to Mr and Mrs X that no formal day/sunlight assessments were made.
31. The Planning committee received a presentation which included slides showing how the Council considered the impact of the development on daylight to Mr and Mrs X’s property.
32. Mr and Mrs X say this is closely linked to the misapplication of the 45-degree guidance. I note paragraph 27 above finds no fault by the Council regarding that.
33. The transcript of the meeting shows members of the Planning Committee commented on the Council’s assessment, demonstrating that it was considered.
34. The Secretary of State said, “in the committee report the Council stated your property is orientated around 30 degrees from [the applicant address], and that the Council’s later sunlight assessment was conducted on that basis. The Secretary of State notes the Stage 1 Complaint response indicates that the daylight/ sunlight assessment which was carried out showed very little impact.”
35. Mr and Mrs X do not agree with the assessment of the daylight impact by the Council. However, the planning committee did have this assessment available to them, considered it and could have rejected the application or requested further analysis if they were unhappy with it. This is not fault by the Council.
36. I have considered the steps the organisation took to consider the issue, and the information it took account of when considering the issue of orientation and lighting. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.

Equality

37. Mr and Mrs X accept that there is no automatic requirement for a formal Equality Impact Assessment. I agree with Mr and Mrs X.
38. Mr and Mrs X made objections both in writing and orally to the planning committee concerning Mr X’s disabilities and their perception of the impact of the development on them as a result. They proposed an alternative solution and asked the Council to consider it.
39. The officer report did not identify any equality implications. The Council told me, “The understanding was that there was a concern with regards dust and air quality relating to a previous application and the request for an environmental management to mitigate impacts rather than raise concerns to the principle of an extension and the resulting impact of light. The report was published…prior to the site visit taking place and based on the information at that time against the information received at that time. When the condition was explained on site during discussions on site it was considered appropriate under Section 6 of the Equality Act to supplement the published report with an assessment made against the Equality Act which was circulated with late representations.”
40. The Secretary of State said, “the Council addressed the Equality Act in its Late Representations Report before the Planning Committee… and specifically considered “the health implications of the development upon neighbouring residents through the loss of passive solar heat and morning sunlight and the associated impacts upon health.”
41. I am satisfied that the Council was clearly aware of Mr and Mrs X’s circumstances and their representations and that this was available to the planning committee when it considered the planning application.
42. Mr and Mrs X do not agree that their needs as individuals with protected characteristics under the Equality Act 2010 were considered. However, the Planning Committee were aware of Mr and Mrs X’s circumstances when it dealt with the application and considered them.
43. I have considered the steps the organisation took to consider the issue, and the information it took account of when considering any equality implications. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.

Material planning considerations

44. I have reviewed in detail the documentation available to the Planning Committee.
45. I consider that the committee had sufficient available information to be able to accurately determine the size of the proposed development, its orientation, together the orientation of neighbouring residential buildings from the plans provided.
46. It is clear from the meeting transcript that the Planning Committee that objectors made representations about the size and scale of the proposed development. The transcript also records members of the Planning Committee expressing comments about individual views on this aspect.
47. I have reviewed photographs of the boundary between Mr and Mrs X’s home and the proposed development. These were also available to the Planning Committee. These photographs provide a clear visual indication of the boundary and any vegetation/landscaping present.
48. The transcript of the meeting itself shows the Council considered whether the development would be used as a House in Multiple Occupation (HMO). The Council clearly indicated that the application was for a single residential property and that further planning permission would be required for any use as an HMO.
49. I consider that the evidence available shows the Council properly considered relevant material planning considerations in relation to the development application. This is not fault by the Council.

Complaint handling

50. Mr and Mrs X say they accept the Council’s complaint’s policy says that stage 1 complaints would be responded to by the planning department.
51. Mr and Mrs X say they are concerned that their stage 2 complaint appeared to be reconsidered by officers connected to the original matters complained about, that the stage 2 response did not deal with the issues raised and that the stage 2 response was dated earlier than they received it.
52. Mr and Mrs X say their stage 2 complaint was reviewed by an officer outside of the planning process after they raised this with the Council. I will therefore not investigate this specific aspect of the complaint further as Mr and Mrs X cannot have suffered any significant ongoing injustice as a result.
53. I have reviewed the issues responded to in the stage 2 complaint response. I consider the Council’s stage 2 response to adequately address the points raised by Mr and Mrs X.
54. I do not consider that any discrepancy between the date marked on the stage 2 complaint response, and the date Mr and Mrs X say it was received, could therefore have caused any ongoing significant injustice, and will not investigate this issue further.

Conclusion

55. 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 you disagree with the decision the organisation made.
56. Whilst it is clear that Mr and Mrs X hold a different position to the Council in respect of the merits of the application, this does not constitute fault.
57. I have considered the steps the organisation took to consider the planning application before it, and the information it took account of when deciding whether to grant planning permission. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.

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Decision

58. I find no fault.

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Investigator's decision on behalf of the Ombudsman