Summary: The Council was at fault in imposing a planning condition the applicants could not reasonably comply with, and other conditions that were too onerous for householder development. It was further at fault in failing to properly vary these conditions. But this fault did not cause significant injustice to Mr W and other residents on whose behalf he complained.

The complaint

1. The complainant, whom I shall refer to as Mr W, complained on behalf of himself, Mr and Mrs X, and Mr and Mrs Y about:
1. the way in which the Council determined a planning application by neighbours to extend their home;
2. the way in which the Council subsequently discharged or removed conditions attached to the original planning permission; and
3. the Council’s unreasonable delay in responding to his and his neighbours’ complaints about the matter.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
3. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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

6. I have considered information available from the Council’s website, together with that provided by Mr W and by the Council. I have also considered satellite photographs of the site and its relationship with neighbouring properties.
7. Mr W 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

Use of planning conditions

8. The Government’s National Planning Policy Framework says that:
• planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects; and
• conditions that are required to be discharged before development commences should be avoided, unless there is a clear justification.

The planning application

9. In March 2018 Mr W’s next door neighbours applied to extend their two bedroom bungalow. They proposed to raise the ridge height, to construct two storey and single storey extensions to the front, side and rear with a Juliet balcony to the rear and dormer windows to the front, and to alter the boundary treatment.

The case officer’s report

10. The report noted that a local councillor had called in the application for the Panel to consider because of concerns about the proposed development. It listed the objections officers had received from residents on the grounds of:
• over-development, dominance, overshadowing, loss of light, and overlooking;
• conflicts with local planning policy;
• the plans that did not show the ground levels correctly. Also, the elevations did not correspond to a negotiated reduction in the depth of the scheme;
• potential damage to and removal of trees and boundary hedges; and
• sub-standard parking provision that would cause highway safety issues.

The report further:

• described the proposals, including a comparison of existing and proposed measurements, and the surrounding area;
• set out relevant national and local planning polies and guidance including the Council’s Household Design Guide. This said all alterations and extensions should respect the scale, form, proportions, character and appearance of the main dwelling and locality, including boundary treatments and materials; and
• identified the key planning considerations. These were the principle of development, design and character, impact on the adjacent Conservation Area and on protected trees, residential amenity, garden space, and parking.

11. The report assessed the proposals against these considerations. In particular, it said:
• the application site was in a street where the majority of dwellings were two storey in height and varied in design. Arguably, it was the existing bungalow that was out of keeping; and
• there was no material planning reason why the change of character of the plot through a conversion from a single storey to a two storey dwelling should be unacceptable.
12. In assessing the impact of the proposals, the report:
• noted that the neighbouring property, belonging to Mr and Mrs W, was set 0.5 metres lower than the ground level of the application site;

• assessed the impact on Mr and Mrs W’s property, noting that the application site was to the east of their property thus precluding significant loss of light; that to prevent overshadowing, the first floor elevation of the extension would be set in 2.6 metres from the common boundary, and it would be set away 6.9 metres from windows to habitable rooms in Mr and Mrs W’s dwelling;
• further noted that Mr and Mrs W already had planning permission for their own extension. But the proposed scheme would not cause loss of amenity to this;
• quoted the Landscape Team’s view that the proposed development would be tight spatially. But it should be possible to maintain the leafy boundary of the adjacent Conservation Area with moderate pruning, commitment from the developer, and arboricultural supervision and input; and
• set out the team’s comments that it should be possible to adequately address the construction impacts with suitably worded conditions.

Minutes of the Planning Panel meeting

13. The Panel considered the application in mid-July. According to the published minutes of the meeting, panel members:
• had visited the site earlier the same day, and were able to view plans, maps and photographs during a presentation by officers;
• noted the developer intended to make the drive wider to allow two cars to park;
• heard officers’ concerns that the first floor windows in the rear elevation would overlook the dwelling beyond the rear boundary. After discussions with the applicants, they had reduced the depth of the first floor so that a gap of 7.5m was retained from the rear boundary of the neighbouring dwelling.
14. Mr W spoke at the meeting and repeated objections set out in the report. He also said extensions to the side boundaries meant there would be no access to the rear of the property. The developer was disregarding minimum distances, the front facing dormers were over prominent, and there would be insufficient garden area for a property of this size.
15. The agent for the applicants also addressed the meeting. In particular, the agent commented that applicants would maintain the hedges on the boundaries.

The decision

16. Panel members approved the application in accordance with the officers’ recommendation. Detailed conditions attached to the planning permission required that development should not commence until full details of hard and soft landscape and boundary works had been submitted to and approved by the Local Planning Authority. The developer should complete these works by a date agreed in the required implementation plan and before the dwelling was occupied. The works should be retained thereafter.
17. A further condition said: “the external walling and roofing materials should match those existing.”

The application to discharge conditions

18. Early in August, Mr W’s neighbours applied to discharge these conditions. At the end of the month officers asked the applicants’ agent for further information relating to discharge of the landscaping and boundary conditions. Officers discharged these conditions in mid-September on the basis of what the agent told them. But in doing so, they did not require a detailed implementation plan or completion of all works before occupation of the property.
19. Shortly afterwards Mr and Mrs W complained about the way in which the Council had dealt with the discharge of conditions application. Officers did not respond, and Mr and Mrs W sent a reminder in mid-October.
20. After discussing with senior officers, the case officer responded to Mr and Mrs W’s complaints in mid-December. He said:
• he acknowledged that officers had discharged conditions relating to boundary treatments on the basis of a different drawing to the approved one. But it was not unusual for approved drawings to be modified in this way, and the changes were not material to the overall scheme;
• officers had not felt a variation of condition application was necessary because the applicants had retained hedges shown on the approved plans. These were the only hedges needing special protection; also
• they had some discretion in relation to the required level of tree and hedge protection, as the condition had asked for retained trees and hedges to be protected, “unless otherwise agreed in writing by the Local Planning Authority;”
• another hedge Mr W was particularly concerned about had not been shown on the approved plans. But the plan on the basis of which the condition was discharged did show it as being retained. The case officer had visited the site and found this was the case;
• the plan also showed the rear of the site being fully enclosed. Officers could enforce this plan if necessary;
• arguably the requirements of standard landscape conditions were too onerous for small scale developments like this one. Officers intended to review their use of these conditions in future.
• the purpose of landscape conditions was to ensure the provision and establishment of acceptable landscaping. In this case much of the required detail was not necessary for this purpose. The level of detail submitted was commensurate with the scale of the development; and
• there had been no need for detailed drawings in relation to site levels. As the current site was fairly level and given the proposed works, there was no evidence to disprove the agent’s view that the levels would not change to any significant degree.
21. Mr W replied to the case officer complaining about his failure to acknowledge the delay in responding. It was not diligent or lawful to attach conditions and then take a view on which parts required compliance. It also disadvantaged third parties.

The application to remove a condition

22. Meanwhile, late in August, the case officer also asked the agent about the walling and roofing materials the applicants intended to use. The agent said they intended to build the extension in block work and to render the entire dwelling. Following discussion with a senior officer and the Council’s legal team, the case officer invited the agent to submit a planning application to remove the condition relating to the use of similar walling and roofing materials. He said the Council would waive the application fee for this application. The agent immediately made the necessary application.
23. At the end of November Mr and Mrs W complained that the applicant was continuing to build in breeze block prior to determination of the removal of condition application. They complained further about the scale of the extension and said they and other residents felt let down by the Council.
24. In their email to the case officer in mid-December Mr and Mrs W further said:
• they were angry at the Council’s failure to properly apply its policies on extensions or new dwellings. The system was supposed to be plan led;
• the current undetermined removal of condition application was an opportunity to put matters right. The degree of demolition meant there was not an original dwelling to extend, let alone in brick; and
• they wanted the Council to refuse the current application, to take enforcement action in respect of the condition relating to walling and roofing materials on the basis that what the applicants had built was not an extension to a bungalow, and to invite an application for a new dwelling that complied with policy.

The Council’s stage 1 complaint response

25. Mr and Mrs W, Mr and Mrs X and Mr and Mrs Y made a formal complaint at the end of April. Late in May a complaints officer responded to the complaint at stage 1 of the Council’s complaints procedure. He said:

The planning application

• he accepted the description of the development proposals published by the Council was different to the wording the applicant had submitted. But this was not significant. The description was intended as a brief summary and should be read in conjunction with the submitted drawings and other documentation;
• although the proposed structure would be higher and have a larger footprint, the submitted plans had indicated it would still retain part of the existing property. So, officers were correct in their assessment that the proposal was to extend an existing dwelling rather than to build a replacement one;
• he considered the details submitted with the application were sufficient to allow officers to make a proper assessment. It would have been disproportionate and contrary to statute to require the applicant to provide additional information;
• the issue was whether consideration of the proposal as a new dwelling rather than an extension would have meant that officers interpreted approved planning policies differently;

Determination of the application

• the form and appearance of the extended dwelling differed from the Council’s Householder Design Guide. But supplementary planning documents were not part of the development plan. Officers had to weigh the various planning considerations and use their professional judgment;
• in this case they concluded that on balance the enlarged dwelling would benefit from sufficient private amenity space and parking provision without having an undue impact on the amenity of neighbouring residents;
• the case officer had carried out a site visit and taken over 20 photographs from different vantage points. Plans Panel members had also made a site visit and scrutinised the recommendation to approve the proposed extension. So, there had been a second stage to the decision-making process and further assessment of the proposals against relevant policies;
• the imposition of a landscaping condition requiring the submission of information about ground levels indicated that officers had properly considered this issue. The case officer had since advised that the site was fairly level;
• the report to the panel had summarised landscape officers’ consultation response in accordance with normal practice. But the full version was available on the Council’s website, and committee members could ask officers for any further information they wanted. So, the comments relating to the protection of trees were fully taken into account;
• he noted that the trees in question were close to the outer side boundary of the site. The submitted tree survey had made clear that although the trees would need pruning, the proposals would not have any undue impact on the root protection areas. Landscape officers had had no objections subject to suitable planning conditions;
• officers had exercised their discretion reasonably in not seeking to retain other trees that were not currently protected. They were far enough away to make it unlikely they would be affected;

The discharge of planning conditions

• he accepted the Council was at fault in not logging and investigating a complaint the complainants had tried to make in September. He would raise this with senior officers to try to prevent any recurrence;
• he agreed the original application was clear that blockwork and render would be used for the external walling. Officers had clearly erred in referring to the use of existing materials in their report and in imposing a condition about this;
• the applicant could not reasonably comply with this condition because it conflicted with a preceding condition that development should be carried out in accordance with the approved plans; so
• the most reasonable course of action was to invite the applicant to submit an application to remove the condition. Senior officers had discretion to waive the application fee; and
• he acknowledged the length of time it was taking to determine the removal of condition application. But this was not impacting on the complainants. The Council remained committed to making a balanced decision on the application when officers were able to do so.

The Council’s stage 2 complaint response

26. Early in June the complainants escalated their complaint to stage 2 of the Council’s complaints procedure. The Planning Agreement Manager responded early in July. She broadly upheld the stage 1 response. But she also said;
• the local planning authority had discretion to tweak the description of the proposals to make these clearer for the public. If officers were satisfied they had an accurate description and felt they could determine the application, they would have no reason to doubt this was what the applicant intended to do;
• in this case the application form and submitted plans were clear about the form of development applied for, drawn to a recognised scale, and showed how the resultant dwelling would sit within the application site;
• a condition attached to the planning permission required protective fencing and adherence to other measures to safeguard retained trees, and the submission of a tree protection plan during construction works;

• there were instances where it would be unreasonable not to take a previous decision into account as a material consideration. But this was not always the case. It was a question of looking at the earlier decision, deciding if the circumstances were similar, and whether the reasoning was applicable to the present application;
• she noted that officers had considered elements of the condition relating to hard and soft landscaping were too onerous. They had exercised their discretion not to require submission of all the details set out in the condition;
• they should not have imposed the condition in that form as not all the required details were necessary to achieve a satisfactory form of development. They should have addressed matters by inviting the submission of an application to remove or vary the condition. She apologised for fault in relation to this issue;
• officers had viewed as acceptable the applicant’s proposal for enclosure along the common boundary with Mr and Mrs W’s property. Officers were entitled to make that professional judgement;
• with regard to the removal of the condition relating to matching walling and roofing materials, the local planning authority could only take enforcement action if this was proportionate and expedient. It could not take formal action against technical breaches of planning controls acceptable on their merits which were causing no planning harm, and/or where the submission of a planning application was the appropriate way forward; and
• because of the time and trouble they had been put to in bringing these errors to the Council’s attention, it was offering a payment of £100 to each of the three households who had complained.

Determination of the application to remove the condition relating to matching walling and roofing materials

27. The Council determined this application in June 2019. The case officer’s report:
• noted further objections from residents. Their comments reflected the previous objections to the overall proposals to develop the site. But they also said the approved plans did not describe the materials to be used, and removal of the condition in question would mean there would be insufficient control over these. The Householder Design Guide recommended that extensions should be built in matching materials;
• set out relevant local planning policies, including repetition of the provisions of the Householder Design Guide;
• said the Council would retain control of the building materials used because of the condition that required the development to be carried out in accordance with approved drawings. These showed a clear illustration of the finished development with white rendered walls and dark roofing materials;
• as other dwellings in the street were also finished in the same way, the proposed white render would not harm the character of the area;
• while the Householder Design Guide did recommend that dwellings be constructed using matching materials, each case had to be considered on its individual merits. The street demonstrated a variety of materials, ages and styles of dwellings. So, in this instance, the guidance was of less weight in the final decision making process.
28. In approving the application, officers also regularised the situation in relation to the planning conditions they had previously discharged. The wording of these reflected their decision to require a lesser level of detail, and not to require an implementation plan or completion of all works before occupation of the property

Was there fault and if so, was there injustice requiring a remedy?

Determination of the original planning application

29. In assessing whether the Council was at fault, I have had to consider if:
• officers made their decision on the basis of the relevant planning material considerations, and assessed the relative weight they should give to each of these in this particular case; and
• panel members understood the proposals, the constraints of the site, the relationship of both with the surrounding area, and the reasons for the officers’ recommendation.
30. I do not propose to repeat all that officers said in their complaint responses. But I am satisfied that they did properly assess, and panel members did properly understand, matters. This being the case, it is not open to me to question officers’ professional judgements or the merits of the Panel’s decision. In saying this I have been mindful that while the approved scheme appeared large for the site:

• the impact was greater when compared to the existing bungalow then when compared to other dwellings in the street;
• the proposed works did incorporate the existing elevations and met the definition of an extension. The Council was not at fault because the applicants and their agent understood and were able to take advantage of this definition;
• Mr W’s home was the west of the extended dwelling and would not therefore suffer significant loss of light and overshadowing. There was no next door property to the east;
• there was no other significant planning harm. Consequently the Council could not reasonably have resisted the proposals; and
• Mr W had the opportunity to address the Panel, and to bring his and other residents’ concerns to members’ attention.

31. As the Council has accepted, it was fault for officers to impose the condition requiring the use similar roofing and walling materials. The applicants could not comply with both this and the requirement that the development should be in accordance with the approved plans. Clearly this did not meet the test of reasonableness set out in the National Planning Policy Framework.
32. But, while the applicants would have had cause for complaint, I cannot accept that the imposition of the condition relating to roofing and walling materials caused injustice to Mr W and the other residents he represented. The use of render was not unusual in the locality and did not adversely affect the character and appearance of the street scene. Removal of the condition was not fault. It was the correct course of action to take.
33. The stage 2 investigating officer also found fault with the detailed form of the boundary and landscaping conditions required by officers. This made the conditions too onerous and were unnecessary to achieve a satisfactory form of development. I share this view. The conditions also clearly failed the tests set out in the National Planning Policy Framework.

The discharge of conditions

34. While officers do have an element of discretion in relation to the discharge of conditions, I consider they exceeded this. The stage 2 investigating officer was correct in her view that officers should have addressed matters by inviting a variation of condition application. That they did not do this was all the more concerning because during the same period they did correctly invite the (s.73) application to remove the condition relating to roofing and walling materials. In my view, both matters could and should have been considered together.
35. As it was, officers appended the modified boundary and landscaping conditions to the s.73 decision notice without any explanation of their reasons for having revised matters. This was understandably annoying for Mr W and the residents he was representing; albeit this lack of explanation made no difference in terms of discharging the conditions.

Delay in responding to complaints

36. There was unacceptable delay in responding to the complaint Mr and Mrs W made in mid-September 2018. This did not receive any acknowledgement, or a full reply until mid-December 2018. When the residents complained further, they received no reply at all. All of this was fault.
37. The Council has accepted that officers should have put Mr and Mrs W’s complaint into the complaints procedure much sooner. But when Mr and Mrs W did make a formal complaint in April 2019, this was dealt with promptly and thoroughly at both stages of the complaints procedure. It was simply the case that residents did not agree with what officers said.

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Recommended action

38. The Council has apologised to Mr W and the residents he represented for the annoyance and time and trouble the Council’s fault had caused them. It has also made a good will payment of £100 to each of the three couples concerned. I do not propose to ask it to provide any further personal remedy.
39. But, if it has not done so already, I am asking the Council to review its guidance of officers the use of planning conditions, and to provide a copy of the revised guidance to the Ombudsman within three months of the date of my final decision.

Final decision

40. I have completed my investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

41. Mr W’s complaint included delay in responding to Freedom of Information and Environmental Impact Regulations requests. For the reasons I have explained in my paragraphs 2 and 3 above, I have not considered these matters.

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Investigator's decision on behalf of the Ombudsman