Summary: Mr X complains the Council has failed to deal with a breach of planning control in the housing development behind his home and took too long to deal with his complaint. The Council has already apologised for the delay in its complaint response and has accepted there was fault in its planning report. We find this fault did not cause significant injustice. There was no fault in the way the Council decided there had been no breach of planning control.

The complaint

1. Mr X complains the Council has failed to deal with a breach of planning control in the housing development behind his home. He says two properties are being built too close and the ground level on one is too high. Mr X says this will affect his privacy. He also complains the Council took too long to deal with his complaint.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. If we are satisfied with a council’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 spoke to Mr X about his complaint and considered the information he sent, including photographs of the site, the Council's response to my enquiries and:
• The Town and Country Planning Act 1990 ("the Act")
• The Town and Country Planning (Development Management Procedure) (England) Order 2015 ("the Regulations")
6. Part of Mr X’s complaint concerns the case officer’s report considered by the planning committee in 2018. The Ombudsman cannot investigate complaints about issues which complainants were aware of more than twelve months ago. This means I cannot investigate a complaint about the granting of planning permission in 2018, as Mr X could have complained at the time. However, Mr X only became aware of an error in the case officer’s report in 2020. I have therefore used my discretion to consider this aspect of his complaint.
7. 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

Planning permission

8. The Act gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. Councils must decide the application under their development plan unless any other material considerations suggest otherwise.
9. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as reduction in the value of a property. They include issues such as overlooking and privacy.
10. Councils' case officers need to consider the proposed development. The case officer's report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
11. A report should help show a council took proper account of key material planning considerations or show whether irrelevant issues were considered. The courts have held the report does not need to be perfect. Its intended audience is the parties to the application (the council and applicant) who are familiar with the issues. They do not need to include every possible planning consideration, just the main, controversial issues.

Separation distances

12. Councils issue supplementary planning guidance on how they generally apply planning policy. Often this guidance sets out separation distances between dwellings to protect against overshadowing and loss of privacy. A typical recommended distance is 21 metres between directly facing habitable rooms (such as bedrooms and living rooms).
13. However, the Council does not have a planning policy which stipulates there must be a specific or minimum separation distance between properties.
14. The Council’s development plan includes a saved Gateshead Unitary Development Plan policy (DC2) which states planning permission will be granted for new development where it:
1. does not have an adverse impact on amenity or character of an area, and does not cause undue disturbance to nearby residents or conflict with other adjoining uses;
2. safeguards the enjoyment of light and privacy for existing residential properties;
3. ensures a high quality of design and amenity for existing and future residents;
4. is not within 50 metres, in the case of residential buildings, or 10 metres, in the case of residential gardens, of the boundary of a landfill site producing, or with the potential to produce, large volumes of methane gas unless, following investigation, the applicant can safeguard the future users or occupiers of the site.
15. Distances between properties are measured on the submitted application layout plan supported by an assessment during the application site visit.

Ground levels

16. Finished floor levels are assessed once the floors are installed by engaging a survey of the site/property. In addition, the developer could be required to provide a survey of the as-built levels of the site that could be assessed by the Council’s officers.

Enforcement

17. Councils can take enforcement action if they find planning rules have been breached. A breach of planning control is defined 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.
18. However, councils should not take enforcement action just because there has been a breach of planning control. 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 July 2018, paragraph 58)

Complaint process

19. The Council has a three step complaint process. If complainants are dissatisfied with the first response, the complaint can be escalated to step two and investigated by a senior manager. The Council aims to respond within 20 working days. If this is not possible, it will inform the complainant. The final step is a review by the chief executive. The aim is to reply within 20 working days.

What happened

20. In 2018 the Council granted planning permission for a new housing development behind Mr X’s home. One of the conditions of the planning permission required further plans to be submitted in relation to drainage, including a plan of the ground levels. This condition was discharged in January 2020.
21. Works started on the site in 2020. On 22 May 2020 Mr X complained to the Council that the two houses being built behind his home (plots A & B) were closer and higher than approved. The Council dealt with this as a report of a potential breach of planning control.
22. A planning enforcement officer visited the site on 1 June 2020. The officer took photographs and measurements. The Council then replied to Mr X. It said in relation to the distance between Mr X’s house and plots A & B, no breach of planning control had been identified, therefore no further action would be taken.
23. The Council was unable to determine the final heights of the properties, but they should be built in line with approved ground levels plan. Whilst at the time of the site visit the foundations and some lower wall levels had been constructed, the actual floor level had not been installed and as such the finished floor level could not be determined.
24. Mr X was dissatisfied and asked for his complaint to be escalated. He asked for information about the separation distances and whether the planning committee had been aware of the final heights of the new houses when they approved the plans in 2018.
25. The Council did not reply within 20 working days. Mr X approached the Ombudsman in July 2020 but we were unable to investigate until he had completed the Council’s complaint process.
26. The Council sent its step two response on 20 August 2020. It apologised for the delay. It said:
• on the approved plans the distance from the main rear elevation of Mr X’s home (excluding his extension) and the garage of plot B was 23.75 metres; to the main elevation of plot B it was 25.38 metres.
• the measurements taken on site showed the distance from the main rear elevation of his home to the garage of plot B was 24.01 metres and to the main elevation of plot B was 25.75 metres.
27. The Council considered the differences to be well within an acceptable tolerance and had therefore determined there was no breach of planning control and that the house on plot B was being built in accordance with the plans.
28. In relation to the finished floor levels, it was not possible to establish if a breach had occurred until the development was further progressed.
29. The site was generally flat and the development did not propose any significant change in the site levels. The Committee had therefore not requested any more levels information. The final proposed levels were part of the drainage scheme and had been approved when the Council had discharged the relevant conditions.
30. Mr X remained dissatisfied and asked for a chief executive review. He said that the planning committee report in 2018 had stated that all rear-to-rear separation distances would exceed 21 metres. The distance between plot B and his habitable living area was less than this. This was because his extension had not been taken into account. The distance from his extension to plot B was 20.8 metres, which was less than national guidelines and closer than the 23.75 metres which had been approved. Mr X also queried the ground levels, as the ground sloped down from the new property to the edge of his property.
31. The Council’s step three response was sent on 29 September 2020. It said:
• The Council’s site specific and detailed guidance and development strategies did not include specific minimum separation distances.
• The Council accepted there had been an error in the 2018 planning committee report. It had wrongly stated that “All rear to rear separation distances would exceed 21 metres; the closest relationship [between existing properties and the new development] … would be 24.9 metres …”
• However, the committee had visited the site and was aware of the residents’ concerns about the proximity of the new development. It had determined the separation distances on the plans were acceptable in planning terms and were consistent with the development plan. It had therefore approved the application. Officers considered that the committee’s decision would have remained the same even if there had been no error in the report.
• No errors in the approved plans had been identified. The Council was satisfied the distances between plots A & B and Mr X’s property were in accordance with the approved plans. There was therefore no further enforcement action the Council could take.
• The approved plans showed the final floor level for plot B should be 47.475 and for plot A should be 47.475. The concrete base in place did not constitute the final floor level so it was too early to assess whether the levels complied.
• The slope was a 1 metre drop in height over a 19 metre distance, which was not considered to require details to be approved at application stage.
32. Mr X complained to the Ombudsman.

My findings

33. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. It is not for me to determine whether the houses are too close. My role is to determine whether there has been administrative fault in the way the decision was made.
34. Mr X says the new houses on plots A & B have not been built in accordance with the approved plans. I have therefore first considered what was approved.
35. The plans submitted with the application in 2018 do not show Mr X’s extension. This is normal practice as developers generally use Ordnance Survey maps and these do not always show house extensions. Developer's plans need to be accurate in relation to the development but not necessarily in relation to neighbouring properties. In addition, councils usually determine separation distances from original rear building lines, rather than the end of extensions. I therefore do not find there was any fault by the committee in approving plans which did not show neighbours’ extensions.
36. The Council has accepted there was an error in the 2018 case officer’s report in relation to the distances between the development and existing properties. This was fault.
37. Mr X says that, if the planning committee had been aware of the real separation distances it would not have approved the application. He says this is because there is a recommended minimum distance of 21 metres and when his extension is taken into account the separation is less than this.
38. I have carefully considered whether the committee’s decision would have been different if there had been no error in the report. When considering complaints, we may make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
39. The Council does not have a minimum separation distance, it therefore determines each application on its merits.
40. The case officer's report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered the impact on the amenity of existing properties. The report then assessed these matters and concluded the development would not cause any significant harm to the living conditions of existing or future occupiers in terms of loss of light, overshadowing or visual intrusion. There were no planning reasons to justify refusing the application.
41. Although the wrong separation distances were in the report, when granting planning permission, the Council is approving the plans that have been submitted. So although the officer’s report helps the committee reach a decision, it is not the report that is approved, but the submitted plans. This means the distances from plots A & B to Mr X's house that were approved were 23.75 metres and 25.38 metres between the main elevations, as set out in the plans.
42. The committee had visited the site and was aware of the extensions. It was aware of residents’ concerns about the proximity of the development. It decided the impact on Mr X’s, or any of the other properties, did not give grounds for the Council to refuse the permission.
43. I am satisfied that, despite the fault in the report, the Council had enough information about the application and properly considered the relevant planning issues when reaching its decision. Separation distances of 18 metres or 19 metres are not unusual and the extensions are single storey, reducing the impact on privacy. On the balance of probabilities therefore, I do not consider the planning outcome would have been any different if there had been no fault in the report. I consider it likely the Council would have approved the application.
44. I therefore find there was fault, but this did not cause the significant injustice Mr X claims as the outcome would have been the same.
45. I have gone on to consider the enforcement undertaken in summer 2020. The Council considered Mr X’s report of a possible breach of planning control. It visited the site visiting the site, taking photographs and comparing the works in progress against the approved plans. It measured the elevation of the houses being built and found the houses were being built in accordance with the approved plans. The Council decided in relation to the distances, there was no breach of planning control to enforce against and that it was unable to measure the heights because the floors were not yet finished. I have seen no evidence of fault in the way it decided this.
46. There was fault by the Council when it delayed responding to Mr X’s complaint. It has already apologised for this and I am satisfied this is an appropriate remedy in line with the Ombudsman’s guidance.

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Final decision

47. There was fault by the Council but this did not cause significant injustice requiring further remedy. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman