Summary: We will not investigate this complaint about the way the Council dealt with Ms X’s reports of breaches of planning control and considered planning applications. We have not seen enough evidence of fault in the Council’s actions to justify an investigation. Also, it is reasonable to expect Ms X to complain to the Information Commissioner’s Officer with her concerns about the Council’s responses to her requests for information.

The complaint

1. Ms X complains about the way the Council dealt with planning applications for new properties next to her home. She also complains the Council was inadequate in its:
• Communication
• Record keeping
• Responses to Freedom of Information request
• Complaint investigation and response.
   

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

3. I considered information provided by Ms X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Ms X was aware the Council had granted planning permission to build two new properties next to her home when she bought her property.
6. She says the house nearest her home is much higher than the planning permission allowed. She reported this to the Council before the roofs were completed. Ms X complains the Council delayed in visiting the site until the houses were finished.
7. The Council’s Local Enforcement Plan does not specify timescales for enforcement investigations. It does however, set out its priorities for investigations into reports of breaches of planning control:
• Priority one. The alleged breach is a serious threat to health and or safety . Or permanent damage to the environment.
• Priority two. The alleged breach is building work which is unlikely to be granted planning permission without significant changes. Or unauthorised use which causes severe nuisance, for example through noise, smells or congestion.
• Priority three. The alleged breach causes problems which may be resolved by limited change. For example, inserting opaque glazing or restricting hours of use. Or the property condition adversely affects the amenity of the surrounding neighbourhood.
• Priority four. Minor breaches
8. Ms X reported the breach to the Council in June and officers visited the site within four months of receiving the report.
9. Officers measured the height of the property and confirmed it is higher than planning permission allowed. The developer decided to put in a minor material amendment application. This was to vary the condition on the original planning permission requiring the developer to conform to the approved plans, including those showing the maximum roof height.
10. Ms X says the increase in height of the property next to her home is not a minor amendment. She says the Council should have taken enforcement action to require the developer to lower the height of the property to confirm with the original planning permission.
11. However, guidance states that section 73 of the Town and Country Planning Act 1990 (TCPA) can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission.
12. The Council publicised the application. The Planning Officer’s report on the proposal confirms the Council received four letters of objections to the proposal. This included Ms X’s objections. The report included a summary of the comments received:
• The increased height of the building has a negative impact on the character of the road.
• The buildings are so different from what was approved it should not be considered a minor amendment and a full plans application should be required.
• The increased height is oppressive and has a greater impact on light and privacy.
• There are other breaches of planning control remaining on the property including it is ten centimetres closer to Ms X’s boundary. Also there is a flat section of roof with an air source heat pump and industrial style railing and solar panels.
13. The report also notes there are no objections from the Council’s conservation and environmental health officers.
14. The application met the conditions for consideration under the Council’s scheme of delegation.
15. The planning officer’s report details the relevant national and local planning policies, the objections received and the planning officer’s assessment of the proposal. It also explains why the officer considers the application overcomes the objections and why they recommended the scheme for approval.
16. A senior officer agreed with the planning officer and the application was approved under delegated authority.
17. Ms X complains the Council delayed in deciding the application and during that time the rules for having planning applications decided by planning committee changed. The Council is entitled to ask the applicant for an extension to the deadline for deciding the application. There is no such arrangement for third parties.
18. I understand Ms X had expected the planning committee to decide the application and is dissatisfied that the Council failed to tell her about the changes to the rules for committee decisions. However, there is no requirement for the Council to do so. The objections to the application were considered. And there is nothing to suggest that a committee would have come to a different decision.
19. I recognise Ms X is not happy with the Council’s decision to approve the minor amendment application. However:
• The developer was entitled to make the application which met the criteria for a minor amendment.
• The planning officer’s report details the relevant policies, the objections and explanations for the office’s reasons for recommending approval.
• The planning officer visited Ms X’s home to see the impact of the development.
• The Council is entitled to seek an agreement with the applicant for an extension to the deadline for determining the application. And there is no requirement for it to tell third parties of this.
• The Council rules for referring applications to the planning committee changed while the application was being processed. However there is no requirement for it to inform objectors of these changes.
20. There is not enough evidence of fault in the way the Council dealt with the minor amendment application to justify an investigation. Following the full plans application, the minor amendment application and a non-material amendment application, I understand there are no outstanding breaches pf planning control at the site.
21. Ms X also complains about the Council’s failure to provide information she has requested under the Freedom of Information Act. If Ms X believes the Council is withholding information which she is entitled to receive, it is reasonable to expect her to complain to the Information Commissioner’s Office. This is the body set out by Parliament to oversee access to information rights.
22. Finally, Ms X complains about the Council’s consideration of her complaint. We do not usually investigate a complaint about failures in a complaint procedure alone, if we are not investigating the substantive issue.
     

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Final decision

23. We will not investigate Ms X’s complaint. This is because we have not seen enough evidence of fault in the way the Council:
• dealt with Ms X’s report of breaches of planning control; and
• considered the minor material amendment application for the next-door properties

to justify an investigation.

24. Also, it is reasonable to expect Ms X to contact the ICO with her complaints about the Council’s responses to her Freedom of information requests.

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Investigator's decision on behalf of the Ombudsman