The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s 2019 planning notification and decision-making processes. Our further involvement would not now achieve a different outcome for Mr X for his lost opportunity to submit planning objections. Even if there was fault in the Council’s planning decision process, the impacts of the planning outcome do not cause Mr X a significant personal injustice which warrants an investigation. We also cannot achieve the outcome Mr X wants from his complaint.
The complaint
Mr X lives near a plot of land to the rear of his property. A narrow road runs between the end of his back garden and the site. The land’s owner sought and received planning permission to build a new residential property there in 2019.
Mr X complains the Council failed to notify him of the 2019 planning application. He says this led to a loss of opportunity for him to object to the development. Mr X says the development will result in overlooking into his garden and the upstairs windows in his house. He wants to meet with the Council and discuss the ‘position and direction’ of the development’s upstairs windows.
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 considered information provided by Mr X and the Council, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.
My assessment
The statutory planning notification requirement was for the Council to write to occupiers of properties sharing a boundary with the development site. Officers did this, but also sent a letter to Mr X’s neighbour who, like Mr X, lives in a property not bordering the site. We would expect councils to make notification decisions on a case-by-case basis, rather than fettering their approach within the standard requirements of national planning guidance. Where a council notifies residents without a shared boundary, its approach should also be consistent.
It was inconsistent for the Council to notify Mr X’s neighbour but not Mr X. I recognise this meant Mr X lost his opportunity to object to the 2019 planning application, causing him frustration once he heard of the development. But we cannot order the Council to re-run the planning process to allow Mr X to make objections now. Our further involvement on this issue would not achieve any different or worthwhile outcome for Mr X so we will not investigate.
Mr X’s main claimed injustice from the Council’s planning decision is the overlooking and loss of privacy caused by the development to his house and garden. I have considered online planning documents and maps of the location. Even if there has been fault by the Council in granting the 2019 permission, we will not investigate. There is not enough personal injustice caused to Mr X by the planning outcome to warrant an investigation. I say this because the average acceptable separation distance for facing windows is 21 metres. That is the minimum distance also adopted by the Council in its supplementary planning guidance. The distance between Mr X’s house and the new property significantly exceeds 21 metres. So the planning outcome here does not cause a level of harm to Mr X’s house’s amenity to amount to a significant personal injustice warranting investigation. There is also insufficient overlooking or loss of privacy to Mr X’s garden caused by the new development to justify investigating. Much of the garden is already visible from upper windows in his adjacent neighbour’s house. The additional overlooking of the garden and loss of privacy caused by views from the new property do not cause sufficient injustice to warrant an investigation.
The outcome Mr X seeks from his complaint is to meet and consult with the Council about the ‘position and direction’ of the windows in the new development which would currently face his property. This indicates Mr X seeks changes to the permission as granted by the Council. We cannot order councils to change or revoke planning permissions. We cannot achieve the outcome Mr X seeks here, which is a further reason why we will not investigate.
Final decision
We will not investigate Mr X’s complaint because: investigation of the planning notification issue would not achieve a different outcome for him; and even if there was fault by the Council in its planning decision-making process, the planning outcome does not cause Mr X a significant personal injustice warranting an investigation; we cannot achieve the outcome Mr X wants from his complaint.
Investigator's decision on behalf of the Ombudsman