Summary: Mrs X complained about the Council’s decision to approve a housing development on land behind her home. We ended our investigation as we are unlikely to find fault or a significant injustice to Mrs X.

The complaint

1. Mrs X complained about the Council’s decision to approve a housing development on land behind her home. She says the ground levels on the house nearest her were higher than shown on approved plans and that this will affect her amenity.
2. Mrs X also complained:
• the Council took too long to investigate and respond to her concerns; and
• that a member of staff used a threatening tone in communications with her.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

How I considered this complaint

4. I read the complaint and discussed it with Mrs 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. I read Mrs X’s email to the Council and its response, the tone of which Mrs X says is threatening.
5. I gave Mrs X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
7. 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 over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. 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.
11. 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.
12. 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.
13. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. 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.

What happened

15. Mrs X lives near land on which a planning application was approved to build housing.
16. The new house directly behind Mrs X’s home is offset at an angle of about 45 degrees and separated by over 40 metres.
17. After construction work began, Mrs X complained to the Council that floor levels of the new buildings were higher than approved. The Council checked but found the increase in height was 0.25 metres and within the margin of error (+/- 1 metre) shown on the approved plan. The Council decided there was no breach of planning control.
18. Mrs X wrote to the Council about raised levels and later complained about how long it took for it to respond to her. She would like us to investigate the Council’s delay.
19. The Council accepted it could have dealt with the matter more quickly and offered an apology for delay in its response at stage 1 of its complaint’s procedure. However, in her email in which she requested to move to stage 2, Mrs X refused to accept the apology. Mrs X said because it did nothing to address the permanent impact the development will have on her home.
20. In this email Mrs X accused the Council and named officers of bias and incompetence. In its stage 2 response to Mrs X’s complaint, the Council said there was no foundation or factual evidence to support her claims about officer conduct. The Council said that using inflammatory language and making personal attacks on officers was inappropriate and advised Mrs X to ‘retract the malicious comments…made about officers’ and that failure to do so will affect how the Council would deal with future communications. It is these comments that Mrs X finds intimidating.

My findings

21. Before we investigate complaints, we need evidence to show the individual complainant was caused a significant injustice by the Council’s actions. We rely on the injustice to the complainant to justify the disruptions our investigations inevitably cause to the day-to-day work of council officers and the pressure that is placed on the public purse.
22. In this case, Mrs X’s home is separated from the new house behind her by about twice the distance normally considered acceptable. Because the houses do not directly face each other, but are offset at an angle, it might have been possible for a planning authority to allow even less than 21 metres separation distance.
23. For these reasons, I cannot say Mrs X was caused a significant injustice. Even if we found fault, we would not be able to say that Mrs X should have a much greater separation distance than others might expect.
24. In any event, I think it is unlikely that further investigation will result in a finding of fault in the decision-making process. The Council approved a plan which included a margin of error and the increase in height is within that margin. Even if the Council had found a breach of planning control, whether to take enforcement action would be a matter for its discretion. It would need to justify its action by showing that some harm to the public had been caused by the breach, and where there are such large separation distances, it is difficult to imagine this happening.
25. I did not investigate Mrs X’s complaints about delay and the tone of the Council’s stage 2 response, and my reasons are as follows:
• Mrs X was clearly frustrated and angry with what she saw as a service failure and did make serious allegations about a certain officer’s conduct. However, I do not consider the stage 2 response on this issue to be disproportionate or unreasonable.
• The Council has already acknowledged delay in responding to Mrs X’s complaint and offered an apology. Given I am unable to show a significant injustice caused by the direct impact of the development itself, further investigation by me into the issue of delay is unlikely to result in a different outcome.

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Final decision

26. I ended my investigation as it is unlikely to result in a meaningful outcome for Mrs X.

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Investigator's decision on behalf of the Ombudsman