The Ombudsman's final decision
Summary: Mr X complained about the Council’s decision to grant retrospective planning permission for his neighbours extension. He also complained about the Council’s response when he reported noise and disruption from the building works. He said this affected his amenity and caused him distress. We did not find fault with the Council.
The complaint
Mr X complained about the Council’s decision to allow planning permission for a neighbours extension. Mr X says the Council failed to properly consider the impact on his amenity and privacy. He says this has affected the enjoyment of his home and garden.
Mr X also complained the Council failed to take action when he reported noise and disruption from the building work. He says the work was done out of the permitted hours and caused him distress over several months.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, 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 spoke to Mr X and considered the information he provided with his complaint. I made enquiries with the Council and considered its response with relevant law, guidance and policies.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance Planning permission is required for the development of land (including its material change of use).
Planning permission may be granted subject to conditions relating to the development and use of land.
Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a councils “Statement of Community Involvement”.
All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by: long working hours on construction sites; nuisance from noise, dust, smoke and vibration; and traffic from construction vehicles.
While construction management conditions may help lessen the harmful impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.
What happened The following is a brief chronology of key events and information. It does not contain all the information I reviewed during my investigation.
Mr X’s neighbour applied for planning permission for an extension in 2020. The Council approved the plans. The neighbour built the extension but it was bigger than the approved plans. The Council carried out an enforcement investigation and invited the neighbour to make a retrospective planning application for the extension.
Between June and September 2021 there was ongoing correspondence between Mr X and the Council about noise and disruption from the building works.
In September 2021 Mr X complained to the Council about its lack of action in respect of the building work disruption and breach of planning control.
The Council responded at stage one of its complaint process. It did not uphold Mr X’s complaint. It said it carried out an investigation in relation to both the building works and the alleged planning breaches and took appropriate action.
Mr X was unhappy with the response and asked for his complaint to be considered at stage two of the Council’s process. The Council provided its stage two response in December 2021. It did not uphold Mr X’s complaint. At this point the retrospective planning application had not been decided and the response directed Mr X to the live planning application should he wish to comment.
The retrospective application was submitted in November 2021 and approved in January 2022.
Mr X remained unhappy with the Council’s complaint response and decisions. He complained to the Ombudsman.
My findings
I have summarised my findings under the main headings of Mr X’s complaint.
Planning The Ombudsman is not an appeal body. Our role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
The officer set out their assessment in the delegated officer report and explained why they considered the impact on Mr X's property to be acceptable in planning terms. It showed the consideration of: Dominance of extension of neighbours.
Extent of overlooking/ loss of privacy.
Daylight and the 45 degree line.
The Council response to my enquiries provided clarification on the specific points Mr X raised in his complaint.
The Council followed the process we would expect and was entitled to make the decision it has. It followed the design guidelines and the Council’s local plan (Policy P14).
Whilst I understand Mr X is unhappy with the Council’s decision, there was no fault in the way the Council reached its decision. Therefore, I have no grounds to question the professional judgement of the planning officer.
Noise and disruption from building works I did not find fault with the way the Council responded to Mr X’s reports of noise, disruption and out of hours building work.
The Council responded to the reports and took action. It considered the information from Mr X and contacted his neighbour about the reported issues.
In its complaint investigation it explained what action it had taken and why. It also explained that some of the issues Mr X reported were civil matters that the Council could not consider through the planning process.
To justify formal enforcement action councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public. The Council did not find evidence that would warrant formal enforcement action. It decided an informal response was proportionate. It was entitled to make this decision and there was no fault in the way it was made.
Final decision
I did not find fault with the Council. I completed my investigation.
Investigator's decision on behalf of the Ombudsman