The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to grant planning permission for an extension on a property next to the complainant’s home. The Council considered the relevant legislation and the objections received and decided to approve the application. Without fault, this is a decision it is entitled to make.
The complaint
The complainant, I shall call Mr J, complains the Council failed to follow its own planning policy when approving an application for his neighbour’s extension. He says: the extension is overbearing his property has lost light it is now difficult to use his drive and he has to park on the road; and the Council failed to refer the application to the Planning Committee, instead making the decision under delegated authority Mr J also complains the Council has failed to take enforcement action against his neighbour for breaching planning control, instead inviting him to put in a retrospective planning application.
The Ombudsman’s role and powers
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. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered: information provided by Mr J and the Council information about the planning application available on the Council’s website; and the Ombudsman’s Assessment Code.
My assessment
Planning controls the design, location and appearance of development and its impact on public amenity. Planning controls are not designed to protect private rights or interests.
Local Planning Authorities must consider each application it receives on its own merits and decide it in line with their local planning policies unless material considerations suggest otherwise. Material considerations concern the use and development of land in the public interest and include issues such as overlooking, traffic generation and noise. People’s comments on planning and land use issues linked to development proposals will be material considerations. Councils must take such comments into account but do not have to agree with those comments.
A council planning officer will normally visit the application site and write a report assessing the proposed development. The report will refer to relevant planning policies and the planning history of the site; summarise peoples’ comments; and consider the main planning issues for deciding the application. The assessment often involves the planning officer in balancing and weighing the planning issues and judging the merits of the proposed development. The report usually ends with a recommendation to grant or refuse planning permission.
It is for the decision maker to decide the weight given to any material consideration when deciding a planning application. Development usually gets planning permission if the council considers it is in line with planning policy and finds no planning reason(s) of enough weight to justify a refusal.
My findings
The case officer visited the site and wrote a report on the proposal. The report includes a summary of all the objections to the application, including those from Mr J.
It is for planning officers and/or committee members to balance both national and local policy and decide to approve an application or not. We must consider whether there was fault in how the Council did this, not whether the decision was right or wrong. Without fault in the decision-making process, we cannot question the decision itself.
The planning officer’s report lays out: what legislation has applied to the case the objections received (including those from Mr J); and observations on site and the proposal The report details why the officer made their recommendation. The officer decided the application would not have a significant harmful impact on the amenity of the neighbours or the character of the area. This is a professional judgement and decision the officer is entitled to make. While Mr J may disagree with the decision, this does not make it wrong.
Mr J also complains the Council should have referred the application to the Planning Committee. The Council’s constitution says: “The Service Director Planning and Environment in consultation with the Chairman (or, in his absence, the Vice-Chairman) of the relevant planning committee will determine whether or not the matter called-in by a councillor should be considered by Planning Committee, or whether the exercise of delegated powers is appropriate;” In this case a councillor asked for the application to be referred to the Planning Committee. The Director consulted the Committee Chairman who decided the application should be decided under delegated authority. We have seen no evidence of fault in the application not being referred to the Planning Committee.
Finally, Mr J complains the Council has failed to act against breaches of planning control.
Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59) The Council inspected the site and confirmed there was a discrepancy between what has been built and the approved plans. However, it considers the breach has not caused any material planning harm and it will not take formal enforcement action. It has invited the owner to make a retrospective planning application to regularize the build. I am satisfied that the Council properly considered whether enforcement action could be warranted. Without administrative fault, the Ombudsman cannot question their professional judgement.
Final decision
We will not investigate Mr J’s complaint because there is not enough evidence of fault in the Council’s actions.
Investigator's decision on behalf of the Ombudsman