Summary: Mr X complained about the Council’s decision to approve planning permission for a development near his home and for failing to consider all relevant information in its decision process. Mr X said the new development will affect his amenities. We did not investigate this complaint further as we cannot show further investigation would achieve any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision to approve planning permission for a development near his home. He says the Council failed to consider all relevant information in its decision process when it granted the permission.
2. Mr X says the new development will impact on his amenity.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I spoke with Mr X about the complaint and considered information he provided.
5. I spoke with the Council and considered information it provided.
6. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
9. Planning considerations do not include things like:
• Views from a property;
• The impact of a development on property value; and
• Private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Details of how a council considered an application are usually found in planning case officer reports. The purpose of case officer reports is not merely to facilitate the decision, but 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.
12. 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.

Decision making and material considerations

13. All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise.
14. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
15. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
16. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
17. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Council’s complaints procedure

18. The Council has a two stage complaints procedure. Stage one complaints should be responded to within 10 working days. If a complainant is dissatisfied with the Council’s response, they can request a stage two response which the Council should respond to within 20 working days.

What happened

19. The Council received an application for planning permission for a development of housing near Mr X’s home.
20. The application was considered by a Council’s case officer, who wrote a report. The case officer’s report included:
• A description and proposal of the site;
• A summary of comments from neighbours, including Mr X;
• Details of planning policy and guidance;
• An appraisal of the main planning considerations, including the impact on amenity and character and appearance of area;
• The officer’s recommendation to approve the planning application, subject to planning conditions.
21. The officer’s report was submitted to a planning committee. The committee considered the application and approved the development, subject to planning conditions.
22. Mr X complained to the Council and said:
• Invites to the committee meeting were not sent with sufficient time for objectors to submit their request to speak and there was insufficient time at the meeting to cover all objections;
• The committee based its decision on inaccurate information, including verbal representations made at the committee meeting by architects, the accuracy of the daylight/ sunlight assessment, heights of buildings and graphical representations of the development.
• One of the new units would have a balcony within 18 metres of neighbouring homes and this was against the Council’s policy;
• A justification in the officer’s report allowed for reduced sunlight in his garden because he had access to a communal garden, which Mr X says does not exist;
• Waste and recycling bins were currently located against a wall where the emergency exit for the new development would be.
23. The Council responded and told Mr X:
• Notice for the committee meeting was sent with at least five clear days’ notice in line with its policy and the Local Government Act 1972;
• The decision to allow verbal representations at the committee meeting is at the discretion of the chair. Objectors are typically given three minutes to raise their concerns;
• All previously received objections and representations were available to committee members to consider;
• The officer’s report for the committee considered the impact on neighbouring amenity and found the balcony would not result in an unacceptable level of overlooking;
• Records of the planning permission for his Mr X’s home shows he has access to a communal garden, which was considered a mitigating factor in the report;
• 3D visualisations like those in the report are used to aid understanding and help with discussion. The planning decision itself is found in approved on plans and documents.
• The daylight and sunlight assessment was considered reasonable for the purpose of the report, and the officer’s report explained that inconsistencies with guidelines were either minimal or appropriately mitigated;
• The height of the building is detailed in the officer’s report and measurable from scaled plans;
• Mr X’s refuse store is outside the application’s zone of control and was not subject to any control through the application.
24. Mr X remained unhappy with the Council’s response and requested a second stage review. He repeated concerns from his stage 1 complaint. He also said some of his objections were not summarised in the officer’s report and that the development would disproportionately affect those in social housing.
25. The Council responded at stage 2 of its complaints process, although this was delayed. It repeated some of its rationale from the stage 1 response and added:
• It had received two requests to speak at the committee meeting and both individuals were able to make verbal representations;
• Whilst not all of Mr X’s objections were included in the report summary of comments, committee members were provided with copies of all representations to consider including his concerns about social housing;
• The distance for the balcony of the new development was considered in the officer’s report which contained an analysis. It said planning decisions are based on scaled development plans and noted the Council’s policy of 18 metres distance was for distance between habitable rooms, not neighbouring windows and/ or gardens from a terrace or across a public highway;
• The Council’s estate services would commence maintenance of the communal garden to improve the area;
• It acknowledged that its stage 2 response was delayed and apologised for this. It offered a symbolic payment of £75 in recognition of the delay.
26. Mr X remained unhappy and brought his complaint to us.
27. I spoke with the Council and discussed the matter of the refuse bins. The Council responded that the matter had not been considered as part of the process as it was outside the planning zone of control, but it would now raise the matter with its waste management team.

My findings

28. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
29. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• It is likely any fault caused a significant injustice?
30. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• Not to investigate; or
• To end an investigation we have already started.
31. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
32. I should not investigate this complaint further, and my reasons are as follows:
• The Council has made judgements about the impact the development will have on the area and the amenity of neighbours. We are not an appeal body, and without evidence of significant fault in the way these judgements were made, we cannot comment on them.
• The case officer’s report considered relevant information including the sunlight/ daylight report (which the Council considered was adequate for the purpose of the application) and relevant policy documents and the officer explained why the impact on neighbouring amenity was acceptable. The Council followed the decision-making process we would expect, and so further investigation is unlikely to find fault.
• Mr X may disagree with the Council that the communal garden available in his development can be used as such, however the planning documents for his property show the area is designated for communal use. Further investigation into this part of the complaint is unlikely to find fault or result in a different outcome.
• Officer reports are not required to consider every possible planning consideration but should cover the main substantive matters. In any event, the committee had copies of all objections which included comments about the impact on nearby social housing. Therefore, further investigation into this part of the complaint is unlikely to find fault or result in a different outcome.
• Mr X said the verbal representations made by the architect to the committee were incorrect. The evidence shows the Council made its decision after considering the available information including the case officer report, written objections and design documents. The verbal representations made during the committee meeting were just one of the many material considerations, and we cannot know what was understood by what was said or what weight was given to the information by members of the committee meeting. Therefore, further investigation into this part of the complaint is unlikely to find fault or result in a different outcome.
• Whilst Mr X raised concerns about the process of inviting the public to the committee meeting and said another member of the public was unable to attend, he was able to submit his request and attended. Mr X was not caused a personal injustice and further investigation is unlikely to reach a different outcome.
• The amount of time given to public speakers during the committee meeting is at the discretion of the Council. Further investigation into this part of the complaint is unlikely to result in a finding of fault or a different outcome.
• The Council has now considered the location of the refuse bins. Whilst the bins were located outside the development zone for the application, the matter was raised with the Council during objections and during Mr X’s complaint. While it is possible we would find some fault here because the Council were aware of the matter and did not act sooner, it has now done so. The issue is now with its waste management team, who will respond in due course. In my view, this is a satisfactory resolution, and it is unlikely further investigation would achieve a different outcome.
• I checked our records and found no evidence to suggest a systemic problem of delay with the Council’s complaints response times. The Council has already apologised for the delay and offered a token payment and this is a satisfactory outcome.

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Final decision

33. I ended the investigation. This is because further investigation is unlikely to result in a different outcome for the planning decision or further remedy for Mr X.

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Investigator's decision on behalf of the Ombudsman