Welsh council agrees to accept Ombudsman recommendations in full despite Monitoring Officer report advising payment of £15k less in proposed compensation to complainant

Councillors at Flintshire County Council came close to rejecting a recommendation from the Public Services Ombudsman for Wales after the local authority's monitoring officer advised councillors to pay a complainant £5,000 instead of the proposed £20,000.

An investigation by the Ombudsman found that the council's planning department caused injustice to a homeowner when it gave permission for an annexe with living accommodation to be built in their neighbour's garden.

Flintshire's monitoring officer agreed with all but one of the recommendations that the Ombudsman made in its report, which was published last month. However, councillors this week voted to accept all of the recommendations.

The report found that the development proposed by a Certificate of Lawfulness of Proposed Use or Development (a "s192 certificate" for an "annexe" containing primary living accommodation to be built in the garden of the next-door property) was not within a class for which planning permission was not required. Therefore, it was not a lawful development and the application should not have been granted, the Ombudsman said.

As a result, the watchdog recommended that Flintshire assess the impact of the development on the complainant's property and pay her the difference in the value of her property before and after the development as compensation. This amounted to £20,000. It also recommended the council apologise and check that the conditions on the planning permission had been followed.

However, speaking in a council committee meeting on Tuesday (25 May 2021), Flintshire's Monitoring Officer, Gareth Owens, said he disagreed with the Ombudsman on how much compensation should be paid and suggested the neighbour's development would receive permission on appeal anyway.

"There are limits to having some sympathy for the claimant's situation for two significant reasons," Mr Owens said. "The first is the neighbours' right of appeal, and further because of the neighbours' right to construct under what is called a 'permitted development'".

The Flintshire MO said that it is "highly likely" the neighbour would have had permission on appeal had the council refused it. He also said that it is possible that a visually similar but "potentially much larger building could have been constructed within the back garden under permitted development rights".

Mr Owens added: "As officers, we disagree with the Ombudsman's recommendation about compensation. The Ombudsman is recommending that we compensate the complainant based on the perceived loss of value to her property from having the visual intrusion of this building constructed. 

"Officers are suggesting compensation, but we believe we are offering compensation at a more realistic value given that it is very likely that a building would have been constructed anyway."

Mr Owens recommended that the council:

• accept the Ombudsman's findings;
• issue an apology;
• check that the conditions on the planning permission have been followed;
• does not accept the valuation;
• pay to the complainant £5,000 to reflect the time taken to resolve the complaint the upset, distress and uncertainty.

Despite Mr Owen's report, councillors voted to accept the Ombudsman's complete recommendations, including paying £20,000 to the complainant, by a margin of 29 votes to 25, and 3 abstentions.

Adam Carey