The Ombudsman's final decision
Summary: X complained about the Council’s planning decisions relating to the apartment block X lives in. We did not investigate this complaint further because we were unlikely to find fault, provide a remedy for X or reach any other meaningful outcome.
The complaint
The person that complained to us will be referred to as X. X complains on behalf of themself and several other residents.
X complained about the way the Council dealt with a number of planning control matters relating to conversion of an industrial/storage building to residential apartments. The issues include: the original plans for a refuse bin store and cycle storage area were changed under a non-material amendment application. X said the changes were not minor and so the Council should not have approved them without re-starting the planning process; the Council was negligent in the way it had considered flood risk measures; and part of a communal garden was sold by the developer to a resident, and so it is now not accessible to other residents.
X and other residents now own the freehold of the property, which was not in a satisfactory state when it was transferred to them. X said the Council is in breach of its duty of care to residents and it is seeking significant sums in compensation from the Council and the developer.
The Ombudsman’s role and powers
We investigate 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 continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is another body better placed to consider this complaint, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I read the complaint and discussed it with X. I read the Council’s response to the complaint and spoke to one of its planning enforcement officers.
I gave the Council and X an opportunity to comment on a draft of this decision.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Planning considerations do not include things like: views over another’s land; the impact of development on property value; and private rights and interests in land.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Where planning permission is granted, developers sometimes find it necessary to make changes to approved plans.
If the Council decides the changes are ‘material’, it may require that the process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process. The courts have considered the circumstances on when this should happen.
The first legal test is as follows. The Council should consider whether the nature of the application remains the same, so the amended proposal is substantially the same as the original. We refer to this as the ‘substantive’ test, because it is based on the planning officer’s assessment and judgement of the main planning issues.
A second test was set out by the High Court in a case decided in November 2017, which we refer to as the ‘administrative fairness’ test. The court found that when an application to vary approved plans was received, the Council should consider whether failing to consult the public might deprive any third party of the opportunity of making representations they might want to make.
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.
Listed Building Consent Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows: Grade I– Buildings of exceptional interest; Grade II – buildings of special interest; and Grade II* – Buildings of particularly important/more than special interest.
If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
It is an offence to carry out work on a listed building without first getting listed building consent from the planning authority.
What happened X and other residents they represent live in an apartment building that was converted from an industrial/storage use. The building is a listed building.
X moved into the building a few years ago, but the original planning approval was granted more than a decade ago. Several years after the application was approved, but before the building work was complete, the developer applied to vary the plans. The Council approved the changes as non-material amendments (NMA).
Later, after X complained, the Council admitted it was at fault for approving the plans through its NMA process, because no Listed Building Consent (LBC) had been submitted for the changes. The developer did submit an LBC application for the changes, which was approved. The Council said though the LBC decision should have been made first, it would have made no difference to the outcome.
I made an enquiry of the Council to ask if its administrative systems had changed since it made its NMA decision. I was told that at the time this application was decided, this part of its service was contracted out to a private company. The Council now has in-house validation officers, and uses computer systems which automatically identify planning constraints, including the existence of listed buildings on application sites.
The Council also said it would refer the issues X had raised to its planning enforcement officer, who would investigate them.
I asked a Council planning enforcement officer to comment on the issues X had raised. The planning enforcement officer said: They had found a technical breach of planning control, because the developer had sold a small area of garden space to one of the residents. The officer’s view was that the breach did not cause significant harm to the public and so no further action was justified. A report was being prepared and a decision would be made soon.
X’s concerns about flood risk consideration related to the original approval granted more than a decade ago. The officer said that policy and practice had changed since the decision was made and now the outcome might have been different. The Council had negotiated some improvements with the developer to improve flood protection measures, but there was no breach of control the Council could enforce.
There had been internal changes to the refuse bin and cycle storage areas approved under the NMA process several years ago and before X and others moved into their apartments. The changes approved under this application were lawful. The Council accepts an LBC application should have been submitted first, but this would not have made any difference to the outcome.
Since the NMA decision was made, the Council has made changes to its processes, including that it will not treat plan variation applications as NMAs if complaints have been made to planning enforcement.
The loss of cycle storage spaces was not significant, because the site includes other non-habitable storage spaces that could be used for this purpose.
My findings
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.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
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.
I should not investigate this complaint further, and my reasons are as follows: The original application was approved many years ago, and policies and practice have since changed. Many of those who worked on the application for the Council, its members and officers, may no longer be available or able to recall what happened. Investigation into a planning decision made more than a decade ago is unlikely to lead to a different outcome. We cannot change what has happened.
Conditions may remain enforceable long after a decision was made. I asked the planning enforcement officer about their investigations, which are drawing towards completion. The Council is aware of the allegations, it has considered what has happened in the context of its planning enforcement powers, it has made judgements about the harm caused to the public by a breach of control and it is likely to complete its decision soon. It is following the process we expect and so further investigation is unlikely to result in a finding of fault.
The Council has admitted it was at fault for deciding the NMA application before an LBC decision was made but it has since approved an LBC application for the changes. Further investigation into this issue now is unlikely to change the outcome.
Since the NMA decision was made, the courts have added a further test, the ‘administrative fairness’ test. The Council’s NMA decision in this case was made before the court added the ‘administrative fairness’ test to the matters councils must consider. In any event, at the time this NMA application was made, the building was not complete and so X and other residents were not denied an opportunity to comment.
X and others are seeking significant sums in compensation against the Council and other parties. Even if we find fault, our remedies do not provide compensation for breaches of legal obligations – only the courts can do this. The issues X raises involve a number of parties and go back a considerable amount of time. Disputes such as this are better dealt with by the courts, but nothing I say in this decision should be taken as legal advice on whether there is a course of action against any party or on the likelihood of success if legal action is taken. Parties to legal disputes may seek advice from lawyers to inform their decisions.
Final decision
I ended my investigation as it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman