Summary: Mr X complained about the Council’s decisions relating to development on land next to his home. We ended our investigation as it is unlikely to result in a finding of fault or a remedy for Mr X.

The complaint

1. Mr X complained about the Council’s planning application and enforcement decisions relating to land next to his home.
2. Mr X said that because of development on the land, he is overlooked by a temporary structure and his garden is flooded by surface water.
3. Mr X also complained about how the Council dealt with his complaint about its planning decisions.

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The Ombudsman’s role and powers

4. 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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different or meaningful outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. 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.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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.
12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
14. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
15. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
16. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and they are an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
17. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.

What happened

18. Mr X lives next to land on which houses are under construction. The developer is living on site in a mobile home that has temporary planning permission.
19. Mr X complained about the Council’s decision to allow a temporary permission for the mobile home and about its decision not to take planning enforcement action relating to raised ground levels on the site.
20. The Council sent copies of its case officer’s reports, one of which related to the temporary siting of the mobile home. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• details of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on amenity, flooding and drainage, and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. The report said that because of the distance and location of the mobile home, there would not be significant impact on amenities, including privacy. It also said that as the site was in a low risk flood zone, the Environment Agency did not have to be consulted and that the local water company had not responded.
22. After construction began, Mr X complained about raised land levels, which he believes cause his land to flood. He also said that the developer had filled in a drainage ditch.
23. The Council eventually agreed there had been a raise in levels and invited the developer to submit a planning application. The developer submitted an application to amend plans showing site levels. The case officer’s report included an appraisal of the main issues, including drainage and flooding. The report said that:
• the Environment Agency were consulted but did not object; and
• the area Flood Risk Team that deals with surface water flooding did not comment as this was not a major development.
24. Mr X said that the land is higher than shown on amended plans but the Council has refused to take enforcement action. The Council sent me details of its enforcement investigations, which show that it was aware of the allegations made, had considered its powers and decided not to take further action. In reaching its decisions, it took account of the limits of the original approval and subsequent revised applications.
25. Mr X complained to the Council but was not happy with the complaints procedure. This is because:
• a planning officer who had some involvement in planning decisions responded as an investigation officer for the complaint procedure; and
• he was told that he only had 12 weeks (instead of 12 months) to take his complaint to the Ombudsman.
26. Mr X said the Council has now accepted it was wrong to say there was a 12-week time limit for Ombudsman complaints and it has amended its standard letters.

My findings

27. 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.
28. 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?
29. 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.
30. 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.
31. I should not investigate this complaint further and my reasons are as follows:
• There is no evidence of significant fault relating to the planning decisions relating to the land or the enforcement decision made afterwards. Before it made its decisions it took account of the key material planning considerations. It is aware of what it was being asked to approve and thought about the impact the development would have on its surroundings, including Mr X’s home.
• Before it made its planning enforcement decisions, the Council considered the allegation, its powers and what it found on site. This is the process we would expect it to follow so we are unlikely to find fault.
• Mr X complains about the impact the development has had on drainage, but drainage and flooding issues were considered before the original decision was made. In any event, the Council is not directly responsible for consequences of poorly drained land – these are private matters between landowners and disputes are resolved in the civil courts.
• We do not routinely investigate complaints procedure complaints. This is because our focus is mainly on the main issues that cause an individual to complain. We do monitor how councils handle complaints and I have checked our records for evidence of significant, systemic failure. I found nothing of concern. Mr X told me that the Council accepted it was wrong to say there was a 12-week time limit for bringing a complaint to our attention but has rectified the error. In relation to the planning officer’s involvement, it is not unusual for this to happen during the early stages of a complaint procedure as officers who were involved are usually best placed to know what happened. I see no good reason to carry out a separate investigation into the way the Council handles complaints.

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Final decision

32. I ended my investigation as it is unlikely to result in a finding of fault or a remedy for Mr X.

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Investigator's decision on behalf of the Ombudsman