Summary: Mr X complained about the Council’s decisions relating to development on land next to his home. There was no fault in the way the Council made its planning application and enforcement decisions.

The complaint

1. Mr X complained that he was not consulted about a planning application relating to development on the land next to his home. Mr X said the new houses next to his home will affect privacy, particularly in his garden.
2. Mr X also complained about the Council’s failure to protect him when the developer was in breach of a planning condition that controlled construction work hours and times.

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The Ombudsman’s role and powers

3. 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)
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 read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the planning officer’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision, but did not receive any response.

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What I found

Planning law and guidance

7. Councils’ powers to control and enforce the development and use of land are set out in the Town and Country Planning Act 1990, and other statutes and regulations.
8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
10. 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.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. 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.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
14. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
15. 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. Generally, if building elevations are at an angle to each other, councils allow them to be more tightly spaced.
16. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
17. Regulations set out the minimum requirements for how councils publicise planning applications.
18. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
19. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
20. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
21. In March 2020, the government issued guidance to local planning authorities on how they should deal with planning matters during the COVID-19 restrictions. The government encouraged flexibility in dealing with enforcement, so that house building would be supported. In particular, the government suggested allowing more flexible hours on building sites to lessen the impact of the lockdown.

What happened

22. Mr X complained to the Council that he had not been informed about his neighbour’s planning application to develop land next to his home. Mr X said that some of the new houses will have views into his garden, affecting his privacy.
23. Mr X said he did find out about the application and did object to it before a decision was made, but this was because his wife had found the details on the Council’s website, by chance.
24. The planning application was considered by a planning officer, who wrote a report which included:
• A description of the proposal and site;
• A summary of planning history considered relevant;
• Comments from neighbours and other consultees;
• Planning policy and guidance considered relevant;
• An appraisal of the main planning considerations, including impact on residential amenity and highway safety; and
• The officer’s recommendation to approve the application, subject to planning conditions.
25. The planning officer referred to Mr X’s home and garden and acknowledged there would be some overlooking, but considered it acceptable because of the separation distance.
26. Mr X said that after construction work began, the developer worked outside hours prescribed in a planning condition, including on Sundays and Bank Holidays.
27. The Council provided the following evidence to show that it followed its publicity process:
• A copy of the newspaper advert for the application;
• A photo of the site notice; and
• A screenshot from the Council’s planning database showing it produced a letter addressed to Mr X’s home.
28. The Council’s planning officer explained the Council was aware of Mr X’s allegation that the developer had worked outside of hours allowed by the planning condition and that this had happened over a weekend and bank holiday. The enforcement officer said that after this happened, he contacted the developer who admitted the breach but explained it was due to increased pressure due to COVID-19 restrictions and impacts. In line with government guidance on COVID-19 and planning control, the Council relaxed its controls, extending the hours the developer could work on the site.
29. The planning officer said that there were several further allegations from Mr X that the extended hours were breached, but only by small amounts. The Council considered the allegations but took the view that these small discrepancies did not cause enough harm to justify formal action in the magistrate’s court.

My findings

30. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
31. In relation to Mr X’s complaint that the Council did not inform him about the planning application, I find no fault. This is because the evidence I have seen shows the Council followed the publicity process we would expect.
32. The Council has also followed the planning decision making process we would expect. It has taken account of the plans and considered comments, and policy and guidance. Because of this, we cannot comment on the judgements it has made in relation to planning considerations, such as impact on neighbouring residential amenities or highway safety.
33. In relation to Mr X’s complaint about the Council’s failure to take enforcement action, I find no fault. Before it decided whether to take formal planning enforcement action, the Council considered Mr X’s allegations, government guidance and its powers under the Town and Country Planning Act 1990. It found a breach of planning control but decided there was not enough harm to the public to justify further action. I am satisfied that the Council followed the planning enforcement process we would expect.

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Final decision

34. I found no fault in decision making processes, so I completed my investigation.

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Investigator's decision on behalf of the Ombudsman