The Ombudsman's final decision
Summary: Mr X complained about the Council’s decision to approve his neighbour’s planning application. Mr X said the new development will affect his amenities. We did not investigate this complaint further, as, though there is evidence of some fault, we cannot show it made any difference to the outcome of the planning decision.
The complaint
Mr X complained about the Council’s decision to approve his neighbour’s planning application.
Mr X said the new development will cut light from his home, be overbearing and cause a loss of privacy.
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: any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I read the complaint and discussed it with Mr 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 Mr X and the Council an opportunity to comment on a draft of this decision. I considered their comments before making a final 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 from a property; 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.
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.
Details of how a council considered an application are usually found in planning case officer reports. The purpose of case officer reports 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.
What happened Mr X’s neighbour submitted a planning application for an extension to the rear of their home. The part of the development nearest to them, was a single storey extension. On the other side of the site, the extension was two storeys high.
The Council’s case officer wrote a report. The case officer’s report included: a description of the proposal and site; a summary of comments from neighbours, including Mr X; details of planning policy and guidance; an appraisal of the main planning considerations, including the impact on amenity and character and appearance of area; and the officer’s recommendation to approve the application, subject to planning conditions.
The Council approved the application, subject to planning conditions.
Mr X complained about what had happened. He said that the Council response was much later than times in its published response targets. The Council accepted there was some fault in the case officer’s report, as it had ‘mislabelled compass points’. However, it went on to say that this made no difference to its judgement, that the development was acceptable in planning terms.
Mr X has other concerns, which include: the Council was wrong to approve the application, because it is too bulky, dominant and disproportionate to the existing building; he disagrees with the Council’s assessment that the development preserves the character of the area; the case officer referred to approximate measurements, but it should have been able to provide precise details from scaled plans; the report says that another neighbour will lose some direct sunlight in the afternoon, but, because this is incorrect – shading will occur in the morning; the report says there will be some shading to the rear of his home in the late afternoon, but this will happen in early afternoon; the report say the patio area is on the same level as an existing patio, but this is not correct; the case officer said that the proposal would preserve his privacy and the appearance of the area, but this is not correct; and the case officer said they would visit the site, but they did not do so.
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.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I should not investigate this complaint further, and my reasons are as follows: It is likely we would find some fault in the way this decision was made, because of the errors the Council has admitted. However, there is enough information on the planning file to show that, before it made its decision, the Council knew what the proposal would look like, where Mr X lived and what his concerns were, how the development related to its surroundings and what the case officer thought of the planning merits of the application. The Council has taken account of the main planning issues, and I cannot say it is likely that the outcome would have been different, even if it had not made mistakes in relation to orientation.
Councils are not obliged to visit application sites, though case officers would normally prefer to do so. I cannot say it was fault for the Council not to visit, and because the main planning issues have been taken into account, I would not be able to say a failure to visit caused the Council to reach a different outcome.
I can see on aerial photos available on the internet, that the neighbour’s rear garden has been levelled, but I cannot say this would have made any difference to the outcome. The Council’s main focus would have been on the impact of the extension on its surroundings.
The Council has made judgements about the impact the development will have on the character of the area, and on the amenities of neighbours. We are not an appeal body, and without evidence of significant fault in the way these judgements are made, we cannot comment on them.
I have checked our records and found no evidence to suggest a systemic problem of delay with the Council’s complaints response times. The Council has already apologised for its delay in responding, and this is an adequate remedy for this part of the complaint.
Final decision
I ended my investigation because, though it is likely there was fault in the way the Council made its decision, it is unlikely we would reach a finding that the outcome would have been different.
Investigator's decision on behalf of the Ombudsman