Summary: Ms X complained the Council failed to give proper consideration to a planning application at a neighbour’s property. She also said the Council failed to respond to reports of a breach of planning conditions. Ms X said this had impacted her residential amenity. She said this had an impact on biodiversity and protected species. The Ombudsman does not find fault in the Council’s actions.

The complaint

1. The complainant, Ms X, complains the Council failed to give proper consideration to a planning application at a neighbour’s property. She also said the Council failed to respond to reports of a breach of planning conditions.
2. Ms X said this has impacted her residential amenity. She also said this has had an impact on biodiversity and protected species.

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The Ombudsman’s role and powers

3. 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)
4. 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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How I considered this complaint

5. I considered all the information provided by Ms X and the Council.
6. Ms X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Planning permission

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

8. 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.

Decision making and material considerations

9. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
10. 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.
11. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Case officer reports and giving reasons for decisions

12. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
13. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Enforcement

14. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
15. 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.
16. As 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.
17. Government guidance says: “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework September 2023, paragraph 59)

Protected species

18. Some protected species habitats are protected during the planning process. Slow worms and hedgehogs are protected under the Wildlife and Countryside Act 1981. It is an offence to kill or injure them. This is enforced by the police and not the Council’s planning authority.

Summary of the key events

19. The Council wrote to Ms X in August, October, and November 2022. This was to tell her a neighbour was applying for planning permission. The Council also wrote to Ms X in May 2023 to tell her about a further planning application from the neighbour. The letters contained information about how Ms X could send in her representation.
20. The Council granted approval for two of the applications. The Council did not receive any comments from Ms X regarding the October application. But the Council did receive comments from Ms X regarding the May 2023 application. She said:
• the works had been built before permission was granted and asked if residents could climb onto the flat roof and have parties;
• from the flat roof, residents can look directly into four rooms in her house, including the bathroom;
• it was an overdevelopment;
• if this is permitted, please put a condition in place to say residents should not use the flat roof for amenity use;
• she had lost privacy and light;
• there would be no garden and there was a loss for slow worms and hedgehogs which were both recorded in her garden as her and the former owner had an informal fence; and
• where is the biodiversity net gain that the Council says it requires.
21. The October planning application for the erection of a single storey rear extension was granted approval in December 2022. It said 17 neighbours were consulted. But said it received no representations. It also said:
• it was considered that the proposed development would be unlikely to adversely affect the amenities of occupiers of neighbouring properties by reason of overbearing appearance, loss of light or loss of privacy; and
• the flat roof area of the development shall not be used as a roof garden, balcony, seating area or other similar amenity area. It shall not be accessed except for the purpose of maintenance or in the case of emergency.
22. The May planning application for the erection of a first-floor rear extension was granted approval in June 2023. 17 neighbours were consulted. The Council received two representations, one of these being Ms X’s comments as stated in paragraph 20. It said:
• it was considered that the proposed development would be unlikely to adversely affect the amenities of occupiers of neighbouring properties by reason of overbearing appearance, loss of light or loss of privacy;
• officers assessed the impact on daylighting and sun lighting of the proposed rear extension using the BRE, 45 degree rule to ensure minimum impact on neighbouring amenities;
• it acknowledged that the proposed rear extension to the first floor on terraced properties are usually not recommended due to separation issues. But in this case said due to the proposed modest scale of the extension, its design and siting is considered to appear in-keeping with the host dwelling and the surrounding area; and
• the concerns in relation to the use of the flat roof of the approved single storey rear extension were noted. However, said this would be controlled via the conditions of the planning permission which is detailed in paragraph 21.

Complaint to the Council

23. Ms X complained to the Council in June 2023. She complained about how the Council had considered the application. She also said:
• how does approval of the application comply with the Council's biodiversity duty;
• she had hedgehogs, slow worms and house sparrows but now there is no garden;
• the Council had failed in its duty of care regarding health and safety. This was due to the times the works were being completed;
• the Council did not consider her comments; and
• the Council had not responded to a breach of planning permission made by her and a neighbour.
24. In response the Council said:
• any complaints about alleged breaches of planning control should be logged through the Council's planning enforcement report tool;
• all applications were subject to a detailed assessment;
• where a deviation from the guidance is proposed, this is addressed in the officer report;
• regarding biodiversity, the Council said whilst there would be a reduction in garden area, there would be sufficient resultant space for the applicant to use as amenity space. How the resident uses this is a matter for them;
• the Council has no control over operations at the site;
• all representations received by Ms X were taken into consideration in the determination of the application; and
• all the planning applications were assessed against the relevant planning policies.
25. But Ms X said the Council ignored her comments about biodiversity, protected and priority species and trees. She requested the Council escalate her complaint.
26. Ms X complained in August 2023 about alleged breaches of planning permission. She said:
• the breach was reported by a third party in June but said no-one was investigating;
• the single storey extension is higher than the plans;
• there is an extra door on the flank wall indicating this will be a HMO which has previously been declined;
• there had been out of hours working occurring on a Saturday; and
• the windows are not as in the elevations on the application.
27. The Council responded to Ms X’s complaint at stage two of its complaints process. It was satisfied the correct process was followed.
28. The Council told Ms X it would look into her complaint about alleged breaches of planning permission. It sent her a letter that set out the standard process of investigating alleged breaches.
29. In September 2023 the Council responded to Ms X’s neighbours’ complaint about alleged breaches of planning permission. Ms X’s neighbour copied Ms X into the email.

Analysis- was there fault by the Council causing injustice?

30. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
31. The Council granted approval for two of the planning applications. Therefore, I can only consider these two applications. The Council only received comments from Ms X regarding the May 2023 application. This is detailed in paragraph 20.
32. In response to Ms X’s comments, the Council considered the proposed development would be unlikely to adversely affect the amenities of occupiers of neighbouring properties by reason of overbearing appearance, loss of light or loss of privacy. This is a decision the Council is entitled to take. There is no fault in how it reached this decision.
33. The Council considered Ms X’s comments about the design. But it considered the development to appear in-keeping with the host dwelling and the surrounding area. The Council told us that subject to the imposition of planning conditions the development taken as a whole would be in accordance with the development plan. Therefore, the Council has evidenced it considered Ms X’s comments and there is no fault in its decision-making process.
34. Regarding Ms X’s comments about the flat roof area not being used for amenity use, the Council considered this. As detailed in paragraph 21 a condition was put in place to prevent this. There is no fault in how the Council reached this decision.
35. As part of Ms X’s comments, she said there would be no garden and there was a loss for slow worms and hedgehogs which were both recorded in her garden. Ms X said the Council has failed to take this into consideration.
36. The Council made a decision on what it considered to be the material planning considerations. As stated in paragraph 12 and 13, this is a decision the Council is entitled to take. We cannot say its fault for the Council to not include this.
37. Ms X said she would like house sparrows to be included in the list of species as these were breeding in both gardens. From the evidence seen, Ms X did not raise this as an objection at the time. This was raised as part of her complaint to the Council after the application was approved.
38. Ms X said the Council ignored its biodiversity duty. We asked the Council what consideration it gave to the good practice guide. The Council the guide does not add anything of substance to an application of this size. For example, a residential extension not covered by any environmental protections. This is a decision the Council is entitled to take, and I cannot question its decision.
39. The London plan provides the framework to address the key issues facing London. It refers to London’s network of green and open spaces, urban forests and woodland and sites of importance for nature conservations. This evidences the plan is not applicable to individual household planning applications.
40. Ms X said section 41 species are material considerations in planning as enshrined in the Natural Environmental and Rual Communities Act 2006. This act requires councils to consider from time to time whether it needs a policy on biodiversity and only if it considers action is needed it should make a policy. The Council explained in its stage two response how it meets that requirement. This is at a higher level than individual household applications.
41. Ms X provided us with copies of emails she sent to the planning officer in May and June 2023. Within she referred to the first-floor extension being higher and wider than the plan. She also asked the officer to stop the illegal structure being built. She said the Council did not respond. But the planning application was still under consideration at this point and was not approved until mid-June. It was therefore not fault for the Council to not consider these reports at the time. But it would have been better practice if the Council had told Ms X that while the planning application was still being determined, it could not deal with the concerns.
42. After Ms X complained, the Council told Ms X who she needed to direct her complaints about alleged breaches to. Ms X then complained to the Council in August 2023 about alleged breaches of planning conditions. The Council said it would look into it. It provided Ms X with a letter which set the stages associated with the planning enforcement process. This explained the process could take some time. This is the correct process, and we cannot criticise the Council. Ms X and her neighbour made similar reports and as detailed in paragraph 29, the neighbour copied Ms X into their update from the Council. The Council said as per its acknowledgement letter to Ms X, there will now be time for negotiations with the alleged offender.

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Final decision

43. I have completed my investigation on the basis there was no fault in the Council’s actions.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman