The Ombudsman's final decision
Summary: Mr X complained about the Council's handling of an application for a barn conversion next to his home, and the Council's decision to grant planning permission. There was fault in the way the Council dealt with a planning application at a site next to Mr X’s home. This fault has not caused Mr X a significant injustice.
The complaint
The complainant, whom I shall refer to as Mr X complained about the Council's handling of an application for a barn conversion next to his home, and the Council's decision to grant planning permission. In particular Mr X is concerned the Council failed to: notify him of the application; take account of his objections; properly assess the site during a planning officer visit; identify the correct distance between his property and the development; consider the impact of the development on his amenity or on the character of the area; ensure the converted building met the technical housing standards, with a minimum floor to ceiling height of 2.3m for at least 75% of the gross internal area; and properly consider and resolve issues with foul water drainage from the site; Mr X also complained the Council delayed in responding to his complaints and did not properly address his concerns.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Mr X; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with Mr X; and Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Key facts Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. In all cases the application must be published on the council’s website. In this case, the requirement was for a site notice or neighbour notification. The Council’s Statement of Community Involvement states it exceeds the minimum requirements. It will erect a site notice and site map close to the development site and may also notify neighbouring properties of the submission of an application.
The Council received a planning application to convert a barn at a site near to Mr X’s home into a new dwelling. The application gave the site address as to the rear of Mr X’s house. The Council erected a site notice at the access to the site but did not send Mr X a letter notifying him of the application.
Mr X object to the application and wrote to the Council setting out his concerns. He noted the Council could demonstrate it had in excess of five years housing land supply and that this proposal, outside the development boundary, would be contrary to policy. Mr X’s objections included: the siting, design and appearance of the barn would be an incongruous feature and detract from the character of the current housing and street scene. He also asserted it would have a harmful impact on the character and form of the area.
an increase in ground levels would lead to a loss of privacy and potentially increased overshadowing of his property; the site plan was inaccurate and did not show the correct distance between his property and the proposed conversion; it would not be possible to connect the proposed conversion to the mains sewers and there was unlikely to be sufficient space for a sewage treatment plant; and the structure of the existing building was inadequate for a residential conversion without additional structural work.
The planning officer assessed the application and prepared a report recommending approval. The report sets out the responses from statutory consultees and interested parties, the background to the application, and the relevant planning policies.
The report also sets out the planning officer's assessment of the proposed development. The officer considered the conversion of the existing barn would protect and enhance the character of the countryside and rural character of the area. They were satisfied the principle of development was acceptable and in line with the National Planning Policy Framework (NPPF).
In relation to the impact on neighbours the planning officer noted Mr X’s concerns about the accuracy of the plans and the correct position his property and garage. The officer did not consider the proposed development would lead to an increase in overbearing or overshadowing of Mr X’s property. They noted there were no windows in the rear elevation of Mr X’s property so there was limited possibility for direct overlooking and the existing boundary treatment would limit any loss of privacy. They officer did not consider the proposed increase in floor level would lead to any significant impact on the amenity of neighbouring dwellings.
The planning officer also acknowledged Mr X’s concerns that this was a cramped form of development and had limited amenity space. The officer was satisfied there was sufficient space on the site for private amenity space and parking, and considered the proposal fit comfortably within its plot. The officer also confirmed that as a conversion of an existing building, the Council’s policy on infill development was not relevant.
In relation to Mr X’s concerns about drainage from the site the planning officer recommended conditions to ensure full details of foul and surface water drainage and landscaping were submitted prior to first occupation of the dwelling.
A senior officer granted planning permission, subject to conditions, by delegated authority.
Prior to the decision being made, Mr X made a complaint about the way the Council was handling the application. He was unhappy the planning officer had not responded to his emails and had delayed in responding to his telephone calls. Mr X felt the officer sounded disinterested during their conversation and was reluctant to discuss the proposed development with him. Mr X was also concerned there was a delay in putting up a site notice and that he had not been directly notified of the application. He was also unhappy there was a delay in publishing his objections on the Council’s website.
Mr X asserted a different planning officer should consider the application. He noted the current case officer had previously approved applications for this builder and that their position was compromised.
In its response the Council explained it dealt with around 2000 applications each year, on which it received a significant number of objection. It was not therefore possible for the Council to enter into protracted negotiations or discussions with third parties. The Council confirmed that all written comments would be taken into account in the decision making process, as was the case here. It noted the officer’s report sets out the reasons for approval.
The Council confirmed that although it was only required to either post a site notice or notify neighbours directly, its practice was to do both. It acknowledged the Council should have notified Mr X directly and confirmed it would take this up with the officer. The Council noted Mr X was in any event aware of the application and had made representations, which were posted on line a month before the decision was made.
In addition the Council confirmed that planning officers often deal with numerous applications from the same developers and that all decisions are made on the planning merit of the case.
As Mr X was not satisfied by the Council’s response, he asked for his complaint to be considered further. The Council’s stage two response again acknowledged it should have consulted with Mr X individually given the proximity of his boundary to the application site. It upheld his complaint in this respect but did not consider this failing had impacted on Mr X’s ability to comment on the application.
The Council did not uphold Mr X’s complaint that the planning officer displayed bias towards the application. It asserted there was no evidence to support this and noted the officer’s report referred to Mr X’s objections and provided narrative & mitigation measures. The Council was satisfied the conditions attached to the decision notice gave due regard to the issues Mr X had raised.
Mr X remains dissatisfied and has asked the Ombudsman to investigate his complaint. He remains unhappy regarding the publicity for the application and disputes that the planning officer visited the site. Mr X states he witnessed the officer putting up the site notice and at no point did they pass his property to visit the site. Mr X also disputes the planning conditions had regard to his concerns as the planning officer had suggested a condition relating to both foul and surface water drainage, yet the condition imposed only refers to surface water. He also asserts that raising the internal floor levels will mean that part of the proposed development with have ceiling height of only 1.8 metres which would make it uninhabitable.
In addition, Mr X maintains the development is contrary to the Council’s policies as it falls outside the development boundary; is at odds with the surrounding development and is out of character of the area; and represents undesirable backland development.
Mr X also complains that the Council delayed in responding to his complaints and did not meet its own timeframes.
In response to my enquiries the Council again acknowledged that due to confusion over the site address, it did not send Mr X a neighbour notification letter. Mr X was nevertheless aware of the application and took part in the consultation process. The Council notes the planning officer’s report sets out and considers Mr X’s objections. It suggests Mr X’s disappointment that the Council did not agree with his objections is different to not taking them into account.
In relation to the site visit the Council states the planning officer entered the site and carried out a visual survey of the barn and surrounding area, including the neighbouring dwellings and site boundary. The officer did not enter the barn itself due to the extent of building supplies being stored in the building and immediate vicinity. The Council has provided copies of photographs taken during the site visit. Having finished on site the planning officer then erected the site notice.
The Council accepts it should have imposed a condition relating to foul drainage and apologises for this error. It states the officer had intended to impose a condition but did not do so. However, it considers it important to note that the foul drainage arrangements will need to be fully satisfied to comply with the Building Regulations. As there is alternative regulatory control for the foul drainage arrangements, the Council suggests it could be argued a planning condition was not necessary.
In relation to Mr X’s concerns about the floor to ceiling heights, the Council notes the NPPF did not refer to the technical housing standards until after the Council had determined this application. It also notes that the NPPF states that policies may make use of the nationally described space standard, where the need for an internal space standard can be justified. The Council does not have specific policies or supplementary planning guidance related to space standards. In addition, the Council notes that the ceiling height within the new dwelling has no adverse impact on Mr X.
The Council does not consider the time taken to respond to Mr X was unreasonable, or that it led to undue delay. It states that it responded to Mr X’s complaints within its target response time of 15 working days, save for its final response which was sent on day 16.
The Council states that at the time of the application and Mr X’s complaint, it was experiencing large numbers of applications and a very high workload. It is also experiencing difficulties in filling staff vacancies. The Council states this has inevitably led to delays in response times.
Analysis It is clear from the documentation that there have been failings in the way the Council has dealt with this application. Although the Council met the minimum requirement for publicity by erecting a site notice, the failure to notify Mr X directly meant it did not meet its own service standards. This failure amounts to fault. As does the failure to impose a foul drainage condition. There is no dispute the planning officer intended to condition both surface water and foul drainage, and the failure to do so amounts to fault.
However, I do not consider these faults are such that they would call in to question the decision to grant planning permission.
Mr X disagrees with the Council’s decision to grant planning permission, but I am satisfied the Council took account of all the relevant evidence and followed a proper decision-making process. The case officer’s written justification is detailed and reasoned. It shows the officer considered and addressed Mr X’s objections.
It must be recognised that the opportunity to make representations is not the same as being consulted. Councils must consider what people say about the proposals, but they need not agree with those comments. Councils must also look at planning policy and all other relevant planning matters affecting the development often weighing and balancing competing views and interests to reach a planning decision. Provided they have regard to all material considerations, it is for the decision maker to decide what weight to give to the material considerations in each application.
Site visits can form an important part of the planning process. While there is no legal requirement to carry out a site visit, the Council’s website states that officers will visit the site. Mr X and the Council have provided differing accounts of the site visit. Mr X states he witnessed the visit and at no time did the officer pass his property to enter the site, while the Council states the officer accessed the site to visually survey the barn and surrounding area. I am unable to confirm the full extent of the site visit but note that the officer’s photographs include an image of the existing barn taken from within the site. This would suggest they did access the site.
The Council has responded to Mr X’s formal complaints about this planning application. Mr X disagrees with the Council’s comments and explanations, but I am satisfied the Council has adequately addressed the issues.
The Council has apologised for the faults identified in paragraph 31 and has spoken to the relevant officers to improve the service. I consider this to be an appropriate response. I do not consider these faults have caused Mr X a significant injustice that would require an additional remedy. Mr X was aware of the application and was able to submit objections which the Council considered. And although not controlled by a planning condition, any arrangements for foul drainage will still need to meet Building Regulation requirements. It would clearly have been better had the Council imposed the condition as intended, but there is nevertheless still a means of controlling the foul drainage at the site.
Final decision
There was fault in the way the Council dealt with a planning application at a site next to Mr X’s home. This fault has not caused Mr X a significant injustice.
Investigator's decision on behalf of the Ombudsman