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Winchester City Council (21 003 401)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 10 Dec 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s handling of her neighbour’s planning application. We ended our investigation as it is unlikely to result in a finding of fault or a significant injustice to Mrs X.

The complaint

  1. Mrs X complained about the Council’s handling of a planning application for development on her neighbour’s land. Mrs X also complained about the Council's decision not to take planning enforcement action and how it dealt with her through its complaints process.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • any injustice is not significant enough to justify our involvement, or
  • we could not add to any previous investigation by the organisation, or
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

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

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How I considered this complaint

  1. 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.
  2. I gave Mrs X and the Council an opportunity to comment on an earlier draft of this decision and took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. 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.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  5. 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.
  6. 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.
  7. 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.
  8. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
  9. 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.
  10. Planning officers may consider the loss of light or overbearing impact a new development is likely to have on existing buildings. They often use a rule of thumb, known as the ’45-degree rule’. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. They will often consider any development beyond 45 degrees as likely to be unacceptable. Some councils include this test, or versions of it, in their published Supplementary Planning Guidance, which shows how they apply policy to protect amenities.

What happened

  1. The land next to Mrs X’s home had planning permission to demolish the existing house and to build a larger replacement.
  2. The developer sought permission to amend the design, increasing its depth. Before a decision was made, a planning case officer wrote a report, which included:
    • a description of the proposal and site;
    • a summary of relevant planning history;
    • reference to relevant planning policy and guidance;
    • an appraisal of the main planning considerations, including impact on amenity and highway safety; and
    • the officer’s recommendation to approve the application, subject to planning conditions.
  3. The Council approved the application.
  4. Mrs X complained to the Council that the new house was not being built in accordance with plans. A planning enforcement officer visited the site but said the new house was broadly in accordance with approved plans. The Council decided it was not proportionate to take enforcement action.
  5. The new house is at the side of Mrs X’s home but is bigger and sits deeper in the site. At its closest point, the new house is about 6 metres from Mrs X’s home and at an angle of about 4 degrees.
  6. I discussed an earlier draft of this decision with Mrs X. She explained she was disappointed with the customer service she experienced during the Council’s complaints process. Mrs X said that if the Council had taken more time to explain its planning decision to her, she may not have complained to the Ombudsman.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
  2. Before we begin or continue our investigations, we consider two, linked questions, which are as follows:
    • Is it likely there was fault?
    • Is it likely any fault caused a significant injustice?
  3. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
    • not to investigate; or
    • to end an investigation we have already started.
  4. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
  5. I should not investigate Mrs X’s complaint about the Council’s planning decisions further, and my reasons are as follows:
    • before it made its decision to approve the amendments, the Council took account of key material planning considerations and so it is unlikely we would find fault in the decision-making process;
    • before it made its planning enforcement decision, it considered the allegation, its powers and the circumstances it found on the site, so it is unlikely we would find fault in the decision-making process; and
    • Mrs X’s home is at an angle and significant distance from the new development. Because of this, even if we did find evidence of fault in the Council's actions, it is unlikely we would be able to say the outcome would have been any different or that the new structure causes a significant injustice that we should remedy.
  6. Mrs X has also complained about how the Council dealt with her after she complained about its planning decision. We do not normally investigate complaints that are just about complaints procedures. There are several reasons for this, but the main reasons are as follows.
  7. We focus on the issues and decisions that caused the original complaint. We are a stage beyond the Council’s own complaints processes and can remedy any injustice it has failed to address when it has the chance to do so.
  8. Generally, we do not consider it a good use of public resources to investigate complaints about complaint procedures, if we are unable to investigate or remedy the substantive issues. This is because, investigation is unlikely to result in a remedy or a meaningful outcome.
  9. We do sometimes investigate complaints procedures, even if there is no personal injustice to the complainant. For example, we may do this if we think it is likely there are significant or systemic complaints process failures that could cause injustice to others.
  10. I have not investigated this part of Mrs X’s complaint further, and my reasons are as follows:
    • I found no good reason to investigate the substantive planning issue, so it is unlikely that an investigation into how the Council handled Ms X’s subsequent complaint about it would lead to a significant remedy;
    • I checked our records about the Council’s complaint process issues but have seen no evidence to suggest systemic failure or a likely injustice to others.
    • The planning services core functions are to provide advice to potential applicants, consider and decide planning applications, investigate planning enforcement complaints and updating/making planning policy. Each authority must decide how best to use its time and resources, and we cannot direct Councils on how they should carry out their functions.

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Final decision

  1. I ended my investigation because it is unlikely to result in a finding of fault or a remedy for Mrs X.

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Investigator's decision on behalf of the Ombudsman

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