The Ombudsman's final decision
Summary: X complained about the Council’s decision to approve a planning application for a house extension. We ended our investigation because there was no evidence of fault in the decision-making process.
The complaint
The person that complained to us will be referred to as X.
X complained about the Council’s decision to approve an extension on their neighbour’s house. X said the Council did not apply adequate weight to the impact the development would have on their amenity, because the new extension will overshadow their garden.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
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.
Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
However, the courts have made it clear that case officer reports: do not need to include every possible planning consideration, but just the principal controversial issues; do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
Some permitted development proposals require an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.
Councils often consider the ‘fallback position’ when assessing applications. This can happen when: they have previously granted approval for a similar development or use; or a proposal would be lawful in some other way, such as through permitted development rights.
Where a proposed development is similar to the fallback position, it is less likely permission will be refused.
Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
What happened A few years ago, X’s neighbour submitted a prior notification application for an extension. The Council approved the application, agreeing it fell within the limits set out by permitted development regulations.
More recently, the neighbour applied for planning permission for a longer extension that was slightly higher than the extension shown in the permitted development plans.
The planning application was considered by a case officer, who wrote a report which included: a description of the proposal and site; a summary of planning history considered relevant; comments from neighbours, including concerns about the accuracy of the plans, loss of light, overshadowing, loss of privacy and amenity space; planning policy and guidance considered relevant; an appraisal of the main planning considerations, including impact on residential amenity and the fallback position afforded by the permitted development approval; and the officer’s recommendation to approve the application, subject to planning conditions.
In the report, the case officer noted that they had visited the site to check the accuracy of the plans, because of an objection by one of the neighbours.
The application was approved by a senior officer using delegated powers.
X was unhappy with the Council’s decision and complained. X said the case officer was wrong to give so much weight to what could be constructed under permitted development regulations (the fallback position).
My findings
We are not a planning appeal body. This means we cannot weigh the different planning considerations and offer any opinion about what the outcome should be. 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 it made its decision, the Council considered the plans, planning law, comments from the public and the permitted development fallback position. It followed the process we would expect and so I find no fault.
Final decision
I completed my investigation as I found no evidence of fault in the way the Council made its decision.
Investigator's decision on behalf of the Ombudsman