Summary: Mrs B complained that the Council when determining a planning application, failed to properly consider the impact on her amenity and published comments from the applicant which she considered to be defamatory. We have not found fault with the Council’s actions.

The complaint

1. Mrs B complained that Elmbridge Borough Council (the Council) in respect of a planning application, failed to properly consider the impact of the development on her amenity, particularly in terms of privacy and published comments from the applicant which she considered to be defamatory. This caused her significant distress and inconvenience.

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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. 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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B 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

Council policy on comments on a planning application

6. The Council’s website sets out the issues it cannot consider when determining a planning application. These include:
• Private disputes between neighbours.
• Disputes over ownership, fences or rights of way.
• Comments that are anonymous or contain offensive, defamatory or discriminatory language, which may also be removed from the application case file.
7. It also says that comments may still be viewable on the website before being removed and that the person writing the comments containing such language could be held legally responsible in the future.
8. The Council’s ‘Statement of Community Involvement’ in the Local Plan says:

“We will not accept or publish any comments that are considered offensive or prejudiced…. We reserve the right not to publish any comments or parts of comments that are not considered suitable for public view, including comments that are offensive, personal or defamatory.”

9. It lists the types of contribution which it will not accept, including those comments which:
• Contain any material which is defamatory of any person.
• Contain any material which is obscene, offensive, hateful or inflammatory.
• Be threatening, abusive or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety.
• Be likely to harass, upset, embarrass or alarm any other person.

What happened

10. Mrs B’s neighbour (the applicant) submitted a retrospective planning application for a structure in their garden. The application included some photographs showing the relationship of the site to the neighbouring properties.
11. Mrs B objected to the application on the grounds of overlooking of her house and garden, loss of privacy and disturbance from noise, inadequate screening, reliance of screening from trees planted by her, being visually intrusive and overbearing and not in keeping with existing developments or the neighbourhood.
12. In response to the comments, the applicant submitted a response to the objections. The comments included reference to disputes over fences and trees including actions and comments allegedly made by Mrs B. These comments were published on the website on the date they were submitted.
13. Mrs B submitted a further objection regarding the impact on her privacy, as did the applicant, about a similar structure in the area. Mrs B’s comments were not uploaded onto the website. After the closing date for comments Mrs B submitted a further contribution expressing concern at the hostile nature of the applicant’s comments which in her view were irrelevant, inaccurate and personal.
14. The Council granted permission for the structure without any conditions. The case officer’s report explaining the reasons for the decision, noted that Mrs B’s property was one of those affected by the structure. It noted the concerns expressed by neighbours regarding privacy and overlooking and the impact on their living conditions. It said the structure was sited approximately 28 metres from the rear of Mrs B’s property and this distance was in excess of that recommended in the Council’s supplementary planning guidance to achieve privacy between direct- facing elevations (22 metres).
15. The case officer had visited the application site and neighbouring gardens. They concluded that the structure only resulted in oblique views into neighbouring gardens which was further reduced by the boundary treatment, trees/shrubs in the gardens and features of the structure. They considered the impact of the structure on the neighbouring properties was not so harmful to warrant refusal of the application.
16. Mrs B complained to the Council about the planning permission, particularly the failure to put conditions on the permission to mitigate the impact on the neighbouring properties. She also raised a concern that the Council had given the applicant a platform to harass her with inaccurate and irrelevant allegations. She provided further information, including photographs a few weeks later.
17. The Council responded to the complaint saying that when comments are submitted to the website they are automatically uploaded. The Council did not consider the applicant’s comments were defamatory, but it had redacted parts of the comments ‘to avoid further distress to Mrs B’.
18. It also explained that the reference to planting on Mrs B’s property was a factual statement and was not relied upon to justify the development. It considered it had properly considered the relevant planning considerations in reaching its decision and the decision was in line with the relevant planning policies.
19. Mrs B escalated her complaint to the next stage. She considered inaccurate and defamatory statements still remained on the website and maintained that the Council had not properly considered the impact on her amenity.
20. The Council responded at stage two of its complaints procedure. It said it had reviewed the information remaining on the website and was satisfied that it did not contain offensive, defamatory or discriminatory language. It said it was not the role of the Council to investigate whether wider statements about fence ownership were correct and civil matters such as this were not relevant to the consideration of the planning application.
21. The Council said its current practice of publishing representation letters was standard practice across many councils and was rooted in the principle of transparent and accountable decision-making. However, following more recent guidance from the planning advisory service it was carrying out a review of the publication of data for planning applications. The review was ongoing.
22. In respect of the mention of screening on her property it again said this was a record of a factual observation and did not mean it was necessary to make the application acceptable. It agreed there was an error on the application form in respect of the information about trees, but it did not consider it was necessary to ask for a new application form. The case officer observed the trees as part of their site visit.
23. The Council confirmed that all evidence submitted was considered by the case officer regardless of when it was published on the website. It said the Council had considered the case in a professional manner and had not shown preferential treatment to the applicant. It accepted that the term ‘limited’ in respect of views into her property, rather than ‘oblique’ was more accurate but that did not change the Council’s decision.
24. Mrs B then complained to us. In response to my enquiries, the Council said it had removed from the website, the applicant’s document submitted in response to Mrs B’s objections and the later comments they had submitted. It had also redacted a section from the planning application relating to trees Mrs B had planted.

Analysis

Consideration of planning application

25. The Council has considered all the relevant and available information regarding the development. It consulted nearby neighbours, considered the comments received and visited the site. It assessed the impact of the development in line with local and national planning policies and explained in its view why the impacts of the development on neighbouring amenity were acceptable in planning terms. I have not identified fault in the way in which the Council reached its decision and so I cannot intervene in that decision.

Comments on the website

26. I understand Mrs B was distressed by the comments submitted by her neighbour and considers they are irrelevant to the planning application as well as being inaccurate. But I consider the Council has responded to the concerns in accordance with its policy on publication of comments and its statement of community involvement.
27. It did not consider the comments warranted immediate removal on the grounds of being offensive, defamatory or discriminatory. When Mrs B raised her concerns the Council reconsidered the comments and made partial redactions to some elements which could be considered personal. Following Mrs B’s complaint, it removed the complete documents. I am satisfied that the Council properly applied its policy in response to Mrs B’s complaint and did not take the comments into account when determining the application.
28. I do not consider it is reasonable to expect the Council to decide whether comments made about non-material issues are accurate, particularly when they concern points of disagreement between neighbours. I also note the Council is currently reviewing its policy on publication and has carried out public consultation as part of this process. Mrs B can contribute to this process if she wishes.

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Final decision

29. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman