Summary: Ms B complains about the Council granting planning permission for the conversion of a neighbouring house to a house in multiple occupation. She complains the Council did not consult her. And its decision ignored some inaccuracies in the application and its own policy. The Ombudsman’s decision is there was fault in the Council not notifying Ms B of the application. The Council has already offered a suitable remedy for that fault.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains the Council granted planning permission for conversion of a neighbouring house to a house in multiple occupation (HMO). But:
• the Council did not consult her on the first application;
• the Council did not take account of the fact the house is within the Council’s Family Housing Protection Zone, which should have meant it was kept as a family home;
• there were more HMOs in the street than those cited in the Council’s report;
• the application had several inaccuracies, which the Council ignored.
2. Ms B’s view is the omissions and mistakes were likely deliberate. The injustice to her is from building work, an impact on local amenities and parking, and the effect on the value of her home.
3. Ms B wants the Council to:
• re-open consultation with neighbours;
• take enforcement action to check compliance with planning conditions; and
• come up with a solution to the noise from the property.

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The Ombudsman’s role and powers

4. 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)
5. 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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What I have not investigated

6. As remedies Ms B requests the Council:
• carry out an enforcement investigation into a planning breach. The Council says it has an open enforcement investigation. That investigation is outside the scope of this investigation;
• deal with noise from the development site. Complaints about noise are an environmental health, not a planning, matter. The Council’s Environmental Health or Environmental Protection Team provides a service to investigate complaints of statutory nuisance. Ms B should contact that team for any continuing concern she has about a noise nuisance.

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How I considered this complaint

7. The information I have considered includes:
• Ms B’s complaint and the documents she supplied;
• information Ms B gave me when I spoke to her;
• the Council’s response to my enquiries; and
• the publicly available planning files.
8. I sent my draft decision to Ms B and the Council and considered their responses.

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What I found

Legal and administrative background

9. The role of local planning authorities (usually councils) is to balance the right of a landowner to do what s/he wishes with his or her land and property against the public and private interests of those who own and/or enjoy land that may be affected by development. Provided there was no administrative fault in the way the local planning authority came to a decision, it is not for the Ombudsman to criticise the way it balanced these often conflicting interests.

Planning use classes

10. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Planning permission is usually required to change a use from one class to another.

Publicity for planning applications

11. Councils are required to publicise planning applications.  What publicity is needed depends on the nature of the development and the council’s own policies. This is usually set out in a council’s “Statement of Community Involvement”. In all cases the application must be published on the council’s website.
12. For changes of use classes, the Council’s Statement of Community Involvement says it will put up a site notice and write to adjoining properties and those the Council considers to be directly affected.

Decision making and material considerations

13. All decisions on planning applications must be made following a 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 fall in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
15. Local support for or opposition to a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
16. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to give any material consideration in deciding a planning application.

The Council’s Development Management Policy

17. The Council’s development management policy DM16 says:

“To maintain a supply of larger family homes to meet Haringey’s housing need, the Council will only permit the conversion of a larger home(s) to small self-contained homes (Class C3) where it is located outside of the Family Housing Protection Zone.”

What happened

18. In 2020 the Council received an application for conversion of a single house to a HMO. The property is next to Ms B’s home. She notes their street lies within the Council’s Family Housing Protection Zone.
19. The Council’s file notes its officers considered whether granting the application would lead to an overconcentration of HMOs. It decided there was no policy basis for refusing the application on that basis.
20. The Council’s records also note:
• it wrote to 14 neighbours about the application. It received no responses;
• it did not have a history of previous use of the site as a HMO and, so, the application was submitted as for a change of use of the building;
• the property was within its Family Housing Protection Zone;
• its HMO Team supported the application;
• its records showed two other HMOs in the street;
• in reaching its decision, it had considered:
1. the impact on the amenity of neighbouring occupiers;
2. the effect of the increased number of occupiers on local amenities and transport.
21. The Council did not write to Ms B, during its publicity for the application. According to its Statement of Community Involvement, it should have done so.
22. The Council granted planning permission, with conditions.
23. In the years after the Council had granted the planning permission, the developer made a new HMO application for the same address, but with more bedrooms. On this occasion, the Council wrote to Ms B.
24. The Council’s report for the new application notes:
• the increase in the size of the development;
• its view was that, compared with the previous planning permission, the new proposals would materially increase the intensity of the use of the property. And that would likely worsen external noise and harm the amenity of neighbours;
• it had received objections from neighbours, the local residents’ association and a councillor. Those responses had raised some material issues, but also issues that were not material in planning terms;
25. The Council refused the new application.
26. Ms B’s own comments on the planning application noted inaccuracies including:

• the number of HMOs already on the road and the wider area;
• the ownership of the property and its previous use;
• not mentioning the road was within the Council’s Family Housing Protection Zone.

27. Ms B notes these errors were also in the first application. And she was not given the opportunity to raise them then. So she complained to the Council.
28. The Council’s complaint response at first said it had written to Ms B and other neighbours. But a later response advised:
• it accepted it had not written to Ms B about the first application;
• the service’s mapping system had not picked up her address when creating the list of neighbours to notify;
• this was not a deliberate mistake, but an error;
• it apologised and explained how it would ensure the fault did not happen again. It offered Ms B £500 in recognition of its failing in its statutory duty to notify her of the application.
29. Officers from the relevant team later met Ms B, to discuss the issues she raised. In that meeting they offered to show her how they draw addresses from their database when identifying addresses to consult.
30. Ms B was dissatisfied with the Council’s response, so she complained to the Ombudsman. In response to my enquiries the Council:
• explained in detail how the error with its consultation might have happened;
• noted its officer’s report relied on its planning team’s information about the number of HMOs on the street;
• advised that, after Ms B’s complaint, further checking with other departments suggested there were further HMOs on the street. However, this information would not have made any difference to its decision on the first application;
• noted it had an open planning enforcement investigation into the change of use and physical development at the HMO, which Ms B had reported.

Analysis

31. The Council has accepted fault in not notifying Ms B of the first application. This meant Ms B did not have the chance to comment on that application. This exclusion from the process represents an injustice which demands a remedy. My decision is the Council’s offer of a remedy (see paragraph 28) is in line with the approach set out in the Ombudsman’s guidance on remedies.
32. Ms B says the Council should have investigated further the inaccuracies she has noted were in the first planning application. She says, if the Council had written to her, she would have provided it with this information. So the injustice to her is greater than the Council has recognised.
33. The decision on any planning application is based on relevant policies, not on the scale of support or opposition to an application. With the application under complaint, the Council had enough information to decide the application. And the inaccuracies Ms B notes were unlikely, on the balance of probabilities, to have made a material difference to the Council’s decision. So I see no basis for recommending the Council to reopen the publicity on the first application.
34. Ms B raises the specific issues of the Council’s Family Homes Protection Zone. And that the Council should have refused the application on that basis. But that policy only restricts conversion of larger houses into smaller units (ie flats or studios). It does not stop conversion of large houses into HMOs. So it is not something the Council should (or could) have considered in its decision making.
35. In the Council’s consideration of the application for the conversion it considered:
• the impact on neighbouring properties;
• the issue of the concentration of HMOs. On this issue it concluded there was no policy reason for refusing the application on that basis.
36. So the Council considered the relevant issues and reached a decision. It decided the proposal was acceptable. Ms B disagrees with this decision. But the evidence does not suggest the decision itself was affected by fault. So, the Ombudsman cannot say the Council should have reached a different decision.
37. The Council says it has now moved to a different notification system. And it has put in measures to prevent a reoccurrence of the identified fault. So I do not need to make any recommendations for any service improvement.

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Final decision

38. I uphold the complaint because of the fault in the lack of notification to Ms B. But the Council has offered a suitable remedy, so no further investigation by the Ombudsman is needed. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman