Summary: Mr X complains the Council mishandled his neighbour’s planning application. He also says the Council provided misleading and inconsistent information about the reasons for its decision. We have not found fault with the way the Council administered the planning application. We have found fault in how the Council communicated with Mr X about this matter.

The complaint

1. Mr X complains the Council mishandled his neighbour’s planning application. Specifically, Mr X says:
1. the Council did not follow the correct procedures when deciding the application;
2. the Council should have referred the application to its Planning Committee, but did not; and
3. the Council provided misleading and inconsistent information about the reasons for its decision.
2. Mr X says the Council should not have granted planning permission and the proposed development will have a harmful impact on his enjoyment of his home. He says the way the Council has responded to his concerns has caused frustration and distress.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered information provided by Mr X and discussed the complaint with him.
6. I considered information the Council provided in response to my enquiries.
7. Both Mr X and the Council could comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant guidance, legislation and policy

National Planning Policy Framework

8. The National Planning Policy Framework (NPPF) sets out the Government’s planning policies for England. It provides a framework for producing locally-prepared plans for housing and other developments.

Planning permission

9. Section 57 of the Town and Country Planning Act 1990 (TCPA 1990) says planning permission is required for ‘the carrying out of any development of land.’

Validation of planning applications

10. Applicants must provide documents in support of their planning application. To be valid, a planning application must:
• be in writing on the correct form, or a substantially similar form, and include the details specified on the form;
• include the national mandatory information requirements; and
• include information asked for by the local planning authority on its local list of information validation requirements, where the authority has published a list.

Permitted development rights

11. Permitted development rights allow householders to improve and extend their homes without the need to apply for planning permission, where that would be out of proportion with the impact of the works carried out. The Government has published technical guidance for homeowners setting out the rules for what constitutes a permitted development.

Officer Reports

12. Planning officers write reports setting out their consideration on planning applications. The standard of reasons officers should provide in their reports has been considered by the courts.
13. 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 in 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.

The Council’s Officer Scheme of Delegation

14. The Council’s Officer Scheme of Delegation (the Scheme) sets out which officers in the Council have the authority to make certain delegated decisions. For planning matters, the Scheme sets out the circumstances in which applications should be referred to the Planning Committee.

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What I found

Background

15. The information below serves as a summary of the key events that led to this complaint. It is not an exhaustive chronology of every event that took place.
16. In May 2021, Mr X’s neighbour made a planning application, Application A. The proposed development was a single-story side and rear extension, and loft conversion.
17. Mr X objected to the proposed development during the application’s consultation period. Mr X said:
• the proposed development was too close to his property’s boundary line;
• the windows proposed for the north-facing side dormer would all directly overlook his living room; and
• the extension would deny Mr X and his wife the quiet enjoyment and privacy they had a right to expect.
18. The Council also received an objection to the development from the Parish Council, on similar grounds.
19. The Council granted permission for the development in July 2021. In doing so, it attached conditions to three of the windows on the northern elevation, which faced Mr X’s property. Each of the windows had to be obscurely glazed. Two of the windows had to be fixed shut, while one did not.
20. Mr X engaged in frequent correspondence with the Council about this matter and made a formal complaint. The Council issued its final response in December 2021. Mr X referred the matter to the Ombudsman in January 2022.

Analysis

Status of applicants

21. Mr X complained the applicants were or had been employees of the Council, but did not declare this on the planning application form. Mr X says planning officers would have been aware the applicants were employees and so accepted the application knowing it contained a false declaration.
22. The Council said an agent had made the application for the applicants. It accepted the section requiring applicants to disclose any connection to the Council had been completed incorrectly.
23. The Council said the applicants were a current and former employee. The Scheme said the Chairman of the Planning Committee should be consulted on any application made by an officer or Member. This did not happen on this occasion, because the planning officers did not know one of the applicants was a current member of staff.
24. However, the Council said it believed the application had been decided in good faith, based on the information the officers had at the time. The Council said it had referred the matter to the Council’s Monitoring Officer, who would update Mr X separately as to their findings.
25. I do not consider the Council can be held responsible for the erroneous declaration made on the application form. The Council referred the matter to the Monitoring Officer when Mr X highlighted his concerns around the declaration. This is a step I would expect the Council to take and I have not therefore identified fault in the Council’s actions.
26. During this investigation, Mr X brought to my attention another planning application, Application B, with similar circumstances to Application A. The Council had made a different decision in this case, retrospectively deciding it had been wrong to grant permission, because of the applicant’s affiliation to the Council. It had then referred the application onto the Planning Committee to decide.
27. I asked the Council about the potential inconsistency in its approach to Application B. The Council told me it believed it was necessary for the Planning Committee to decide Application B, because of the applicant’s proximity to the Council’s planning functions in that case. It said it did not think it would be proportionate to take this step with Application A, as that applicant had no significant interaction with the Council’s planning service as part of their duties. It said while it would normally consult with the Chair of the Planning Committee on whether to refer applications from officers to the Planning Committee, it may not decide to on every occasion. This decision would be dependent on the facts of each case.
28. The Council said it would be writing to all officers and members to highlight the importance of completing the application correctly, particularly when using an agent to submit it on their behalf.
29. The Council has acknowledged the steps it would have taken in this case, had it been aware of the applicant’s status. It has set out its reasoning for taking a different approach to Application B and explained why it does not believe this would be proportionate for Application A. I have not therefore found the Council at fault for its approach.

Lack of referral to planning committee

30. The Scheme sets out in which circumstances the Planning Committee will decide certain planning matters. Relevant to this case, it says the Planning Committee should decide:

“Any major or minor application for planning permission which prior to its determination is subject to a written representation from the Parish Council, Town Council, or formal Parish Meeting that the application site is within or one that immediately adjoins the application site, which is in conflict with the recommendation of Officers.”

31. It also says the Planning Committee should decide:

“Any household application recommended for approval where the ward member has submitted a written request to the Chairman and/or Vice Chairman of the (Planning Committee) before the end of the statutory consultation period..."

32. Mr X says the Parish Council objected to the application and the Planning Committee should therefore have decided the matter. Mr X says this would have enabled him to present his own objections directly to the Committee.
33. In its response to Mr X’s complaint, the Council said the application in question was a “householder” application, rather than a “minor” application. It said it had not received any written representations from a ward Member, as outlined in paragraph 27, and so it had not been necessary to refer the application to Committee. The Council said the matter had been correctly delegated.
34. I asked the Council to clarify how it distinguished between “householder” and “minor” planning applications. In its response, the Council said:
• a “householder” application is defined by Government as being part of a category called "other” applications; and
• a “minor” application is defined as being between one and nine residential units, as well as certain scales of commercial development.
35. The Council said it used these definitions to decide what matters should be referred to the Committee. It also said councils had general discretion in how planning functions were delegated, as outlined in the Government’s “Planning Practice Guidance.”
36. Councils do have discretion in how they delegate planning functions. I have not therefore found fault in the Council drawing such a distinction in its scheme.
37. I have seen no evidence a local ward Member made a written objection to the application during the consultation period, as is required by the Scheme. I have not therefore found the Council at fault for not referring the application to the Planning Committee.
38. While not a formal recommendation, the Council may wish to consider rewording the Scheme to ensure greater clarity on how it defines applications.

Validation

39. Mr X told me the application had not met the requirements necessary for validation. In particular, Mr X said applications had to specify the distance between any proposed development and neighbouring boundary lines. Mr X said the application did not specify the distance between the proposed development and his southern boundary, nor was there any mention of the distance in the Officer’s Report.
40. The Council publishes a list of Householder Validation Requirements on its website. Under Local Requirements, Plans and Drawings, it says the application must include a “block plan”. This should show the distance from a proposed development to its surrounding boundaries.
41. The proposed development plans include a block plan, with the property’s boundary line shown in red. The block plan includes measurements from the proposed development to each of its surrounding boundaries, including Mr X’s southern boundary. This appears to satisfy the Council’s validation requirements and I have not therefore found fault.

Officer report

42. The Council issued an Officer Report in early July 2021, outlining its consideration of the application. In its assessment on residential amenity, the Officer Report says:

“The windows on the north side elevation could result in some significant harmful impacts in terms of overlooking the neighbours…, however, this can be overcome with conditions to ensure overlooking would not become an issue.”

43. Mr X made a complaint about the Council’s decision to grant permission, saying the proposed development would overlook his property and infringe on his privacy. In its stage two complaint response, the Council:
1. said the Officer Report included an assessment of residential amenity and explained the overlooking impacts could be mitigated with conditions. The Council conceded the report could have been more specific in how the applied conditions achieved this. It also said it could have included more detail about how the Planning Officer reached their decision, and why it was necessary to fix shut some windows, but not others.
2. said that, despite this, it was satisfied the case officer had considered the impact during the assessment. It said relevant factors were the width and location of the window, and it being a secondary window. It said it had decided the development would not result in so much harm that permission should be refused.
44. I asked the Council to clarify its reasoning. In its response, the Council said:
1. the case officer no longer worked for the Council, so could not provide direct clarification.
2. the case officer had applied non-standard conditions and varying conditions, referencing some degree of opening for the window. This demonstrated the case officer had considered the issue and decided that some degree of opening was acceptable.
3. the case officer had focused on securing obscure glazing so, for most of the time, there was no overlooking.
4. the case officer had clearly decided any further conditions were unnecessary to address the potential harm.
45. I asked the Council whether, as of now, it considered the proposed development to be acceptable in planning terms. The Council said the case officer had clearly acknowledged the window would be opening casement and decided it was necessary for it to be glazed, but not fixed shut. It said it had no reason to challenge this assessment.
46. The Officer Report is not overly detailed, and it would have been helpful had it been more specific. However, case law in this area has held that Officer Reports can be brief and do not have to address every matter raised. They should address the substantive issues of concern and allow the reader to understand why the matter was decided as it was. Broadly, this is what the report does. It says there is a risk of overlooking Mr X’s living room and applies a condition to mitigate the risk, to a degree the Council has confirmed it currently considers acceptable.
47. The Officer Report outlines the conditions imposed to mitigate the risk of overlooking. It said:
• the bathroom and en-suite windows on the north-side elevation should be obscurely glazed and fixed shut. There could be a fanlight for ventilation purposes.
• the window between the bedroom and en-suite on the same side, which was to be opening casement, should be obscurely glazed.
48. The three windows in question appear on the plans to be full-length windows, with the window casements being less than 1.7m from floor level.
49. In July 2021, Mr X emailed a senior planning officer, Officer A, with pictures taken from his living room window. Mr X said the pictures showed where the proposed opening casement window would be and how it would overlook his living room and garden. Officer A responded in August 2021, saying:

“The element of the proposals that you are concerned with – the side facing dormer window – could be built under permitted development rights...”

50. Mr X’s ward councillor, Councillor B, also enquired about the grant of permission in July 2021, stressing the impact overlooking could cause. Councillor B said the conditions were illogical, as they allowed the window between the bedroom and en-suite to be opened, allowing overlooking of Mr X’s rear garden and living room.
51. Officer A responded to Councillor B, saying:

“I agree that the conditions are worded poorly and should have been checked more thoroughly before a decision was issued to be much clearer… Because of the height of this casement (at least 1.7m), there should be no opportunity for overlooking. I should also add that a construction similar to this could be erected under permitted development rights where the Council would have no control over details such as this.”

52. Broadly speaking, the Council is correct that an extension similar to the one proposed in this case could be built under permitted development rules.
53. However, the Government’s technical guidance for homeowners sets specific criteria for windows installed on a side elevation. To be a permitted development, it says:
• windows should be obscurely glazed; and
• non-opening, unless the parts of the window which can be opened are more than 1.7m above the floor of the room.
54. Mr X’s complaint to the Council was that his neighbour’s proposed development had a window that did not meet these criteria and would result in overlooking. Despite this, the Council had given permission for it. The Council did not address this specific point in its response to Mr X, other than suggesting a similar development would be allowed as a permitted development.
55. Mr X says the Council told him, and Councillor B, the window in question would be allowed under permitted development rules, but this was not correct. Mr X says the window in question would not be allowed as a permitted development due to the height and location of the casements, and the fact the window could be opened. He says this was an attempt to provide deliberately misleading information.
56. In comments to me, the Council said these two exchanges did not provide alternative or contradictory explanations, but instead set out a consistent context for the Council’s decision-making in this case. The Council said it had objectively and correctly set out what constituted a permitted development. The Council also acknowledged the window in question would not adhere to permitted development guidance.
57. The permitted development guidance sets out for homeowners what they can do without needing planning permission from the Council. If homeowners want to propose developments that differ from or exceed the stated criteria, they must seek planning permission. The Council has wide professional discretion to decide what is acceptable in planning terms. It can grant permission for developments that do not meet the permitted development criteria, after considering the individual circumstances of the application.
58. The Ombudsman is not a planning appeals body. We review the process by which planning decisions are made, looking for evidence of administrative fault in this process. If we find fault, we decide whether this has caused an injustice to the complainant. We cannot substitute our own views in place of the Council’s.
59. I recognise Mr X's strongly held view the conditions are illogically applied and the Council has erred in granting permission. However, the Council has broad professional discretion to decide what is permitted in planning terms, and it is not fault for the Council to make a decision someone disagrees with.
60. I have, however, found the Council at fault for its communication with Mr X. It did not address Mr X’s specific concerns directly, instead conflating them with observations about general permitted development criteria. It also offered different reasons for its decision-making in subsequent complaint responses.
61. Taken with the lack of specificity in the Officer Report, the Council’s incomplete or alternating explanations during the complaints process caused Mr X unnecessary frustration and uncertainty about the Council’s decision-making.

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Agreed action:

62. Within four weeks of the final decision being issued, the Council has agreed to:
• apologise in writing to Mr X, acknowledging the faults identified in this statement and apologising for the uncertainty and frustration caused.

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Final decision

63. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman