The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s consideration of a planning application for an extension next to the complainant’s home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault in the way the Council made its planning decision to justify an investigation by the Ombudsman.
The complaint
The complainant, whom I refer to as Mr X, says the Council failed to properly consider the impact on his property when it determined a neighbour’s planning application. In particular, he says the development will impact on the levels of light entering his windows, and prevents him from extending his own property in the future.
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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) In that regard, we cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by complainant, and information about the planning application and Council planning policies on the Council’s website.
I also considered our Assessment Code.
My assessment
I appreciate Mr X is unhappy with the effect of the development on his property. But the Ombudsman cannot question the Council’s decision to grant planning permission unless there is evidence of administrative fault in the way it was made.
Decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise. And it is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
Government planning guidance says: “The scope of what can constitute a material consideration is very wide and so the courts often do not indicate what cannot be a material consideration. However, in general they have taken the view that planning is concerned with land use in the public interest, so that the protection of purely private interests such as the impact of a development on the value of a neighbouring property or loss of private rights to light could not be material considerations.”
(www.gov.uk/guidance/determining-a-planning-application#how-decisions-on-applications) This means the Council could not have considered Mr X’s private right to light, the future development potential of his property, or the neighbour’s construction/maintenance access requirements, when determining the planning application.
Government guidance also advises restrictions should not be imposed on planning applications which duplicate a requirement for compliance with other regulatory regimes (www.gov.uk/guidance/use-of-planning-conditions). So, the Council could not have taken building regulation requirements into account when it assessed the planning application.
The case officer’s report summarises Mr X’s objections and goes on to assess the impact of the proposal on his residential amenity, with specific reference to the windows on his side elevation. The report also explains why a departure from its ‘1m gap’ planning policy was acceptable on this occasion. The Council was entitled to reach a professional judgement on whether the proposal was acceptable in planning terms, and there was no obligation to conduct a site visit in order to reach its judgement.
In light of the above, I find there is not enough evidence of fault by the Council to justify the Ombudsman starting an investigation.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the decision was made.
Investigator's decision on behalf of the Ombudsman