Summary: We found fault on Mr K’s complaint about the failure to carry out proper notification of a neighbour’s planning application. This caused him no significant injustice. There was no fault on his remaining complaints about the lack of a site visit, not holding pre-application consultation meetings, slope stability works, or consideration of its impact on amenities or its height.

The complaint

1. Mr K complains about the Council’s handling of a neighbour’s planning application which includes its failure to:
1. visit the property before granting consent;
2. send notification letters to neighbouring residents;
3. hold public consultation meetings; and
4. ensure works recommended to ensure slope stability were done.
2. As a result, he lost the chance to make representations against the application and have them considered before the Council reached its decision, and now has a view dominated by this extension.

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The Ombudsman’s role and powers

3. 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)
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. When investigating complaints, if there is a conflict of evidence, the Ombudsman may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.

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Government Guidance and Covid-19 (March 2020)

6. In March 2020, the government issued guidance to local planning authorities because of COVID-19 and national restrictions. It asked councils to take an innovative approach using all options available to it to continue to provide its service. It accepted face to face events and meetings may need cancelling. It encouraged councils to explore every opportunity to use technology to ensure discussions and consultations can go ahead.
7. A written ministerial statement (13 May 2020) set out how the government expected council planning departments to operate during the emergency. Where site visits were required or necessary, they should be done in line with government guidance on social distancing and safety.

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Council’s Statement of Community Involvement (January 2015)

8. This policy explains how it involves the local community in developing planning policy and making planning decisions.
9. In line with national requirements, it will usually notify neighbours affected by a development proposal either by letter or email. In some cases, it may use site notices displayed close to the application site giving 21 days to make written comments. A public notice is placed in a local newspaper for major applications, those for applications in Conservation Areas, and where it departs from the development plan.
10. For general planning applications it will carry out:

• Neighbour notifications and/or site notice; and
• A newspaper advert where required.

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The Town and Country Planning (Development Management Procedure) (England) Order 2015

11. The publicity requirement for this type of planning application is:

• By site display in at least one place on or near the land to which the application relates for not less than 21 days; or
• By serving notice on any adjoining owner or occupier. (Part 3, Article 15)

12. As it was close to a Conservation Area, the Council also had to publicise it by a notice in the local press.

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How I considered this complaint

13. I considered all the information Mr K provided, including the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr K and the Council.

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What I found

14. Mr K has lived in his first floor flat for more than 15 years. A neighbour to the front of his flat applied for planning consent to extend the roof of the property. It was only when works on the neighbour’s roof progressed in 2022 that he realised the roof was not the same as initially proposed on an application he was notified of several years before (application 1). At this point, he discovered the neighbour had sent the Council a later application which he was not told about (application 2).
15. Mr K is unhappy he lost the opportunity to make representations against application 2 before the Council gave it consent.
16. Under application 1, the neighbour would raise the roof of the house by about one metre and add dormer windows and roof lights. The Council gave consent.
17. About a year later, the neighbour submitted application 2. This changed the design of the roof and the building design. While Mr K said he was not told about it, the Council claimed it sent notification letters to ten neighbouring properties, including his, erected a site notice, and put a notice in the local press.
18. Mr K noted this covered a lockdown period during the COVID-19 pandemic. He argued this meant residents were less likely to see a site notice, particularly in the location used, or a notice in a newspaper about it.
19. Mr K is also unhappy the planning officer failed to visit the site before preparing a report.
20. There was also a later Non-Material Amendment (application 3), a copy of which I have seen. After getting planning consent, small changes to an application can be made by applying for a non-material amendment. There is no statutory definition of ‘non-material’ because it will depend on the overall scheme. A council will need satisfying the amendment is non-material to grant the application (section 96A Town and Country Planning Act 1996). It will also need to consider the effect of the change along with other previous changes as originally granted. A council has discretion about advertising this type of application.
21. I now consider each of Mr K’s complaints:

Complaint a): Failure to visit the site

22. Mr K is unhappy no planning officer visited the site for application 2 before preparing a report. He noted different officers wrote the reports for application 1 and 2.
23. The Council told Mr K it received the application when the country had gone into lockdown. Considering government guidance, it decided not to carry out visits where possible. As officers knew the site, and the application was an alternative to an already approved scheme, the key issues were the differences between the two schemes. Officers decided this did not justify a site visit as an assessment could be done without one.
24. When considering the application, the Council said it had alternative sources of information available including: site visit photographs from application 1; the officer report for application 1; street photographs from the internet; aerial photographs from the internet and its own stock; ordnance survey extracts. I have seen copies of this information, except the extracts.
25. It also took account of guidance issued by the Local Government Association which said site visits are not always necessary or essential. This guidance (with examples) advised it was worth considering whether a robust decision could be made based solely on the information sent with the application, alternative sources (photographs/images from the internet), previous sources (a pre-application visit), or a video app.

My findings

26. I found no fault on this complaint. I am satisfied the Council had enough information from various sources to decide the application without the need for a site visit during a period of national restrictions. Its decision complied with guidance issued at the time.

Complaint b): Failure to notify residents

27. Mr K did not receive a notification letter from the Council and says none of the letters the Council claimed it sent were received. He also complains about the location of the site notice.
28. The Council claims notification letters were prepared in January 2021. It does not have records to show these letters were printed and sent. It accepted it is unclear whether the letters were sent and that they might not have been when comparing the representations received for application 1.
29. It also said it erected a site notice outside the application site and published a notice in the local press. It maintained it met its legal duty with the site notice. The Council argued even if it had received representations, it would have granted planning consent.
30. The planning officer’s report noted one person made representations on application 2 which included lack of notification. The report referred to the level of notification used which included letters, a site notice, and a notice in the local press. I have seen a copy of the press notice and the site notice, along with a map showing its location.
31. The Council also noted its ‘Neighbour Notifications on Planning and Related Applications’ states it will notify the owner or occupier of all properties which have a common boundary with the application site.

My findings

32. The Council had a choice to provide notification by neighbour notification letter and/or by site notice. The Council decided to do both.
1. Notification letters: I am satisfied it was more likely than not the Council failed, for whatever reason, to send the notification letters it created. This is because it has been unable to provide evidence of actually sending the letters. It accepted they might not have been sent. The Council confirmed it sent Mr K two written apologies about this already.
2. Site notice: The Council erected a site notice as part of the publicity requirements for development affecting a conservation area. The evidence shows the Council displayed a site notice a little further up the road from the application site. The application site was on a no-through road.
3. Having taken account all the circumstances, I am not satisfied placing the site notice at this location was enough to notify residents of the application. This is because at least three properties adjoin the site’s boundary to the west which front onto a different road. In addition, another property to the south of the site is located on the corner of the road with the application site but has an address for the road running to the front of it. There would be little reason for any of the residents of these properties to walk or drive up this road where the site notice was located.
4. The Council explained the location of the site notice was not, at the time, considered significant. This was because it assumed the notice was supplemented by the notification letters it thought it sent to neighbouring properties. The Council explained it was not its intention for the site notice to be the sole way of publicising the application. If it was to be the sole way, it explained it would have further considered the location and number of notices posted.
5. The Council decided to erect a site notice because the development site was in a conservation area. This meant it had to give special consideration to whether it believed the development would preserve or enhance the character or appearance of the conservation area. I note the planning officer report for application 1 referred to the site being outside the conservation area but noted it was in close proximity to it. Due to this wider, additional consideration, which might attract more attention from the public than usual, I remain satisfied the Council needed to consider whether it should have placed further site notices in different locations other than the single one it erected next to the site.
6. Despite the above failings, I am not satisfied these caused Mr K a significant injustice. This is because: the application was also publicised by the press notice; the evidence shows the Council considered its potential impact on the amenities of Mr K and his neighbours; the planning officer report considered whether it would cause overlooking, be overbearing, cause overshadowing, lead to loss of privacy, or be out of keeping with the area. As a result, even though he lost his right to make representations, I am satisfied the Council properly considered these material considerations when granting consent.

Complaint c): Consultation

33. Mr K believes the Council should have held pre-application public consultation meetings for this proposal.

My findings

34. I found no fault on this complaint because there was no legal obligation on the Council to ensure this took place on this application. Its Statement of Community Involvement states it encourages developers to consult the community before sending planning applications for larger-scale or potentially contentious development proposals. The Council expects applicants in most cases to do pre-application consultation themselves.
35. The ultimate decision as to whether the developer would carry out pre-application public consultation was for the developer, not the Council, to make.

Complaint d): Slope stability works

36. Mr K complains about the failure to carry out underpinning works, or the widening of existing footings, to take the increased weight of the development as recommended in a stability report. He notes the planning officer confirmed these works should be done before completion.
37. The Council confirmed the decision on application 2 does not state these works were to be done before occupation. The condition Mr K refers to requires the approved details to be implemented in accordance with the approved report. In addition, it also points out the report itself does not recommend the need for slope stability works for the development, only for load bearing capacity. As such, it was outside the requirements of the condition for application 2’s planning consent.

My findings

38. I found no fault on this complaint. The report said the works would ‘not adversely affect the slope stability’ as the loadings were less than those used on its previous analysis. While it did recommend underpinning, this was not for slope stability, but for the load bearing capacity of the development.

Complaint e): Height of extension

39. Mr K argues application 2 increased the ridge height of the development which means it is now likely to be higher than approved when fully built. He believes the Council failed to understand the proposed height of the development compared to application 1.
40. In response to my enquiries, the Council confirmed on application 1:

• Approved height to ridge: 6.6ms
• Approved height to eaves: 2.64ms

41. The Council confirmed on application 2:

• Approved height to ridge: 6.2ms
• Approved height to eaves top: 5.4ms

42. The Council confirmed on application 3:

• Approved ridge height: 6.6ms
• Approved height to top of eaves: 5.7ms

43. The Council also confirmed the built height to the eaves is 5.8ms and the difference to application 3 is, therefore, within acceptable tolerances. The roof has not yet been completed when the eaves were measured so officers could not measure the roof height.
44. As the works were still ongoing, and the Council has no ongoing enforcement case for the site, and has received no further enforcement reports, it has closed its case.
45. Mr K noted the height for application 1 given by the Council is incorrect. He states the ridge height was 6.3 metres. I note the planning officer’s report confirmed the maximum height would be 6.3 metres for application 1.

My findings

46. I found no fault on this complaint. In reaching this conclusion, I note that although Mr K was not notified about application 2, and so could not make representations about its height, the approved ridge height on this application is lower than application 1, even if it was 6.3 metres.
47. Despite the fault with the notification procedures, I am not satisfied this caused Mr K a direct injustice in terms of the height as application 2 approved a ridge height lower than application 1, which he was notified of and could have made representations about.
48. The Council had discretion to publicise application 3 and decided in the circumstances, it did not need to do so. Application 3 increased the height of the eaves to 5.7ms but the built height is slightly over at 5.8ms. The Council does not consider it justifies taking any form of action on such a small discrepancy.
49. There is currently no finished roof height the Council can measure.

Complaint f): Planning considerations

50. Mr K is unhappy he lost the opportunity to make representations. He is also unhappy with the lack of a site visit, and the Council’s failure to appreciate the height of the development. He argues this means it failed to take proper account of its impact on his amenities. He says his first floor flat now has an upper floor ten metres from his living room and kitchen windows. The upper floor will be covered in dark wood which he claims is out of keeping with the area and overbearing.
51. The Council explained the proposals for application 2 showed the development lower than application 1 with the first-floor part of it being further away from the boundary than before. Considering the distances between residents to the site, the Council remained satisfied the development would not cause harm by being overbearing.
52. The planning officer’s report for application 2 noted:

• the roof height would not appear significantly higher than the existing ridge height and would be below that approved on application 1;
• the roof was not considered to appear overly large or dominating;
• there is a mix of properties in terms of design and height nearby;
• the proposed first floor has a smaller footprint than the ground floor which reduces the visual bulk and mass above it;
• there would be no undue overlooking or loss of privacy to neighbours to the east and west;
• the increase ridge height would not result in increased overshadowing or overbearing impact on neighbouring properties to the west; and
• it would not be overbearing or overshadow properties to the north or south because of the separation distance.

My findings

53. I found no fault on this complaint. This is because although Mr K did not have the opportunity to put his concerns about the proposal to the Council, it did consider the potential impact it would have on the amenities of him and his neighbours. The report shows it considered whether it would cause overlooking, be overbearing, cause overshadowing, lead to loss of privacy, or be out of keeping with the area. The Council considered these material considerations when reaching its decision to grant consent.

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Final decision

54. We found the following on Mr K’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman