Summary: Mr X complained the Council’s decision to grant planning permission to a development at a neighbouring property was flawed. Mr X has also complained about how the Council responded to his reports of breaches of planning control. We do not find fault with how the Council considered the planning applications or responded to Mr X's enforcement complaints. We find the Council at fault for failing to make all relevant documents publicly available but find it has taken sufficient action to remedy this already.

The complaint

1. Mr X complains about the Council’s decision to grant planning permission to a development at a neighbouring property. Mr X says the Council failed to consider the height of the new property and the consequences this would have in terms of overlooking at his own property. Mr X also complains about how the Council considered his enforcement complaints. Mr X feels this will result in a loss of privacy to his property.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)

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What I have and have not investigated

6. We cannot usually investigate complaints about events that took place more than a year before the complainant contacted us. Mr X first brought his complaint to the Ombudsman in July 2023, meaning anything that took place before July 2022 is a late complaint.
7. Mr X has complained about planning applications from early 2021, which would be late. However potential faults in this would not have become apparent to Mr X until work was underway and he then promptly raised his concerns with the Council. For this reason, I have decided to exercise discretion to begin my investigation from the point the planning application was submitted in early 2021.
8. Any mention below of events that took place before the application that was submitted in 2021 are for reference only.

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How I considered this complaint

9. I spoke to Mr X about his complaint and considered information he provided. I also considered information received from the Council.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Decision making and material considerations

11. Where planning permission is required, a council must decide on planning applications in accordance with its development plan unless material considerations indicate otherwise.
12. 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 loss of light or overshadowing.
13. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded on valid material planning reasons.
14. Government statements of planning policy are material considerations.
15. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities).
16. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.

The Council’s local development plan

17. The Council publishes its local development plan on its website, and this sets out how it considers issues of potential overlooking when it comes to new planning applications.
18. The plan explains all developments must be designed to a high standard to avoid unacceptable impacts on existing amenity. New developments should protect existing public and residential amenity, particularly with regard to privacy, overlooking, security, noise and disturbance, pollution, daylight and sunlight.

Planning enforcement

19. The Town and Country Planning Act 1990 defines breaches of planning control as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
20. Planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

National Planning Policy Framework

21. The National Planning Policy Framework sets out the government’s planning policies for England and how to apply these.
22. The Framework says effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

What happened

23. In 2020, the owner of a property that neighbours Mr X’s home applied to the Council for planning permission to demolish their property and erect two new dwellings. This application provided a street scene which illustrated how the new properties would fit in with the existing area.
24. In early 2021, the property owner withdrew their application. They submitted a new application to extend the existing property and erect one new dwelling. This application included plans and elevations for the proposed development but did not include a street scene showing how it would fit in with the existing area.
25. The Council’s case officer’s report on the application outlined the relevant local plan and policies, summarised objections received and set out the officer’s view of whether the proposed development would impact on local amenity. The report acknowledged the proposed development would change the local setting, but said it took influence from neighbouring properties and said the height was in keeping with the adjacent properties. The report suggested the proposed development would not cause substantial harm but would create benefits that outweighed this. The report acknowledged there would be some impact on the amenity and outlook of neighbouring properties but did not deem this to be significantly adverse to conflict with the Council’s development policies. The report concluded that the adverse impacts of the new development would be outweighed by the benefits of it and recommended the application be approved, subject to conditions.
26. The Council approved the application, subject to conditions. Among other things, the conditions:
• required external materials to be approved by the Council prior to construction so it could ensure they were suitable.
• prevented work above ground floor slab level until a landscaping scheme was approved by the Council so it could ensure there was a sufficient landscaping scheme.
• prevented work above ground floor slab level until detailed architectural drawings were approved by the Council so the Council could ensure the proposed work would be of high-quality design.
27. After work was underway, the landowner submitted a new application to discharge the conditions mentioned above.
28. Mr X then complained to the Council as he believed the new application showed the new dwelling was being built taller than permission had been granted for. The Council opened an enforcement complaint to consider this.
29. The Council visited the site and identified the dwelling appeared to be taller than the approved plans. The Council issued a temporary notice for the landowner to stop work while it investigated if this was a breach of the planning conditions and informed Mr X of this.
30. The landowner then submitted drawings to show the proposed landscaping of the development that better reflected the existing land levels and showed why the new development appeared to be taller than approved. The Council added these drawings to the planning application.
31. After it considered all the available evidence, the Council concluded the landowner should submit a new application that should include street scene elevations.
32. The Council then received a response from the landowner’s solicitor who considered there was no material difference between the drawings submitted as part of the original application and the plans provided to support the discharge of condition application. They advised the Council could not seek to retrospectively invoke conditions and pointed out the conditions the Council had already imposed suggested it was aware the land levels would need to be addressed in any landscaping schemes. The solicitor felt the issue regarding the height of the building was covered in the discharge of conditions and so no further enforcement action was warranted.
33. The Council’s planning solicitor considered the available documents and agreed with the landowner’s solicitor’s view. They suggested if the planning officer now had concerns about the height, they could try to work with the landowner to negotiate a reduction without the need to resubmit additional drawings and plans.
34. The Council did not engage in negotiation with the landowner but approved the application to discharge the condition from its previous planning permission based on the most recent drawings it had received.
35. Mr X complained to the Council. He said there were significant breaches of planning control and he disagreed with the Council’s decision to allow work to continue. Mr X said he felt the Council had been negligent when approving the planning application because this meant the development’s height would be out of keeping with the existing neighbouring dwellings.
36. The Council responded to Mr X’s complaint to say it felt the development was in keeping with the approved plans and did not present harm to the existing neighbouring dwellings. The Council acknowledged its enforcement team had initially asked for work to be stopped but said it had properly considered the planning application and had not been negligent in its assessment.
37. Mr X raised another enforcement complaint with the Council later in 2023. He said he had concerns the development was not being completed in accordance with the approved plans.
38. The Council inspected the development and found some aspects were not in line with the approved plans. It contacted the landowner and asked them to rectify these breaches.
39. The landowner responded to the Council disagreeing with its findings. They pointed out the Council had relied on outdated plans when inspecting the development and provided the updated drawings again. At this point, it became clear the Council had not updated its website with the most recently approved plans.
40. The Council emailed Mr X, providing a copy of the plans, and explained there actually had not been a breach of planning control. The Council apologised for not having made these plans available on its website and agreed to upload them.
41. Mr X complained to the Council again, saying it had been negligent in its consideration of the planning applications and had failed to address breaches of planning control.
42. The Council responded to Mr X’s complaint, explaining it was satisfied the development was being built in line with the approved plans.

Analysis

Planning applications

43. The Ombudsman is not an appeal body. This means our role is not to consider whether a planning application should have been approved or not. Rather, we consider whether the Council decided on the application properly, having regard for the key factors and policies which are relevant.
44. If we consider the Council followed processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
45. Mr X has said the Council was negligent not to request a street scene as part of this application and pointed out one was provided with an older application. However, the Council is under no obligation to request a street scene as part of a planning application, so I could not find it at fault here.
46. The case officer’s report, recommending the application be approved, took account of the height of the property and how it would impact on local amenity. The report identified there would be some impact to neighbouring properties but that the benefit of the development would outweigh any harm that was caused.
47. The case officer considered and applied relevant policy when reviewing the application and I do not find fault with the Council’s decision-making process prior to approving the application.
48. Mr X has said that the Council initially issued a temporary stop notice and asked for a new application shows it was aware there were issues with how it considered the initial application. I can appreciate the point Mr X is making here, but the Council is entitled to make further enquiries when considering an enforcement complaint. That it did so, is not evidence of fault in how the original application was considered. The case officer’s report seems to be thorough and cover the relevant development policies. I do not find the Council at fault for retrospectively reconsidering this and what options were open to it once it received an enforcement complaint.

Enforcement

49. The Ombudsman is not a planning authority and cannot decide whether a breach of planning control has occurred and, if so, what action should take place to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
50. Mr X is not happy with the action the Council took in relation to his reports of breaches of planning control, but it is not for the Ombudsman to say what action the Council should take.
51. That said, we expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement options open to them. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decision to any complainants. We would expect the council to do so without unnecessary delay. The Council has provided us with evidence of its response to Mr X’s reports.
52. After the Council received Mr X’s complaints, it promptly visited the site to assess whether it felt breaches had occurred. Where the Council felt there was a breach, it asked for work to stop while it considered this, then permitted work to continue once it was satisfied this complied with the granted permission.
53. The Council followed a proper process when considering Mr X’s enforcement complaints and I cannot find it at fault for the decisions it reached.
54. That said, the Council is at fault for not ensuring all planning documents and approved plans were available to public view. This caused uncertainty for Mr X and led him to making a complaint he otherwise may not have needed to, which is injustice. However, the Council rectified this promptly by making the relevant approved plans publicly available and apologised to Mr X and I find this is a sufficient remedy.

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Final decision

55. I find the Council at fault for failing to make all relevant information publicly available. However, I do not find fault with how the Council considered the planning applications Mr X has referred to or how it has considered his enforcement complaints and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman