Mr C complained to us about the way the council handled a planning application for a development in the rear garden of a hotel next to his mother (Mrs A)'s property. Mr C raised a number of concerns about the handling of the matter by the council's planning service including issues around neighbour notification; the description of the proposed development; the need for a design statement (required for some proposed developments within conservation areas, which Mr C said applied in this case); inaccuracies in the submitted plans; and considerations about environmental health, potential noise and light pollution, and potential daylight and sunlight restrictions caused by the proposed development. He also complained that representations from the local preservation trust objecting to the proposal had been disregarded, and that the council made their decision before the statutory deadline given to the community council to respond to the planning application had passed. In addition, Mr C complained that the structure that was built was different to that for which permission was given by the council.
We took independent planning advice on this complaint. Although we found that in some cases, the council's actions had been reasonable or had been decisions that they were entitled to take in the course of their consideration of the development, there were a number of aspects to their handling of the matter that we were critical of.
We found that the council should have sought to change the applicant's description of the structure, as it did not accurately reflect the permission being sought and may have misled interested parties; they acted unreasonably in not requiring a design statement to be submitted with the application, which my planning adviser told me had major consequences for the assessment of the application; the council delayed in logging an objection received and the handling report stated that no representations had been received. This was a serious omission which also was consequential to the way in which the application was subsequently handled. We found that the council failed to complete a daylight and sunlight assessment; the development was not properly assessed for its impact on the conservation area that applied to the location; and the decision was made prior to the end of the time allocated for statutory consultation with the community council.
In relation to Mr C's complaint that the final structure differed from what was applied for, my adviser told me that there is no specific requirement on the council in relation to how much an application can vary: this is for them to decide. However, in this case, the council failed to appropriately log the objection made, which had a knock-on effect in relation to the council's decision to treat some of the variations as minor so, on balance, I upheld Mr C's complaint about this.
In view of all of these failings, based on the advice received from my adviser, I recommended that the council should consider taking enforcement action or discontinuance under section 71 of the Town and Country Planning (Scotland) Act 1997. I also found that the council had failed to respond adequately when Mr C had raised his concerns with them.
Redress and recommendations
The Ombudsman recommends that the Council:
- (i) review their procedures for ensuring that properly made representations on an application are registered without delay and then taken into account for the purposes of the assessment of the application;
- (ii) consider whether a system to record on file all relevant details found on a site visit against a comprehensive, standard checklist should be introduced;
- (iii) consider the options for enforcement and/or whether it would be appropriate to pursue a section 71 discontinuance or alteration order;
- (iv) also take this matter into account when considering what action to take to remedy the failings we have identified in complaint (a) above. This should include Mr C's comments about the roof panels;
- (v) issue a written apology to Mr C for all of the failings identified in this report; and
- (vi) make all of the officers involved in the handling of both the application and Mr C's complaint aware of our findings.