Summary: Ms X complained about the Council’s failure to control development on her neighbour’s land. We did not investigate further, because the planning process is ongoing and we are also unlikely to find fault, change the outcome or recommend a remedy.

The complaint

1. Ms X complained about the Council’s failure to control development on land behind her home.
2. Ms X said that the development has been going on for several years, often without compliance with plans, so that now the building is much higher than was originally approved.
3. Ms X said that the large building affects her amenity and the openness of the countryside. Ms X is disappointed that the Council has failed to update her after she reported breaches of planning control. She believes the Council should be required to develop a planning enforcement policy, to set out how it should deal with alleged breaches of planning control and those that report them.

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The Ombudsman’s role and powers

4. 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
• 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

5. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and considered documents from its planning files.
6. I gave Ms X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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.
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.
16. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
17. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

18. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

Background

19. A new house was built on land behind Ms X’s home. It is a 2-storey building, with additional accommodation in the roof void. The front of the house is over 40 metres from the rear of Ms X’s home.
20. The developer submitted an appeal to the Planning Inspectorate about a condition imposed on the original approval. The condition restricted development that would normally be allowed under permitted development regulations. During my investigation, the developer’s appeal was allowed.
21. The new house was not built in accordance with approved plans, and the developer made a retrospective application for permission for what has been built. The Council has not yet decided this application, but it is likely to take account of the Planning Inspector’s recent appeal decision before it decides the retrospective application.

My findings

22. 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.
23. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
24. 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.
25. 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.
26. I should not investigate this complaint further, and my reasons are as follows:
• We do not normally begin or continue investigations while planning decision processes are ongoing.
• In relation to the impact on Ms X, we are unlikely to be able to recommend a significant practical or financial remedy. This is because of the significant distance between her home and the new house, a factor that was an important consideration for the Planning Inspector.
• We are unlikely to recommend the service improvement Ms X wants – to require the Council to develop planning enforcement policy. There is no obligation on councils to have local planning enforcement policies.
• We do not generally investigate complaints about complaints processes or customer service issues, though we may decide to if we have evidence of significant fault or systemic failure. However, as Ms X now knows the Council is awaiting the outcome of the appeal and planning application, and she can check the Council’s website for developments, I am not persuaded that further investigation is justified.

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Final decision

27. I ended my investigation because the planning process is ongoing and further investigation is unlikely to lead to a finding of fault, a remedy for a significant injustice or some other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman