Summary: X complained about the Council’s decision not to take planning enforcement action against a neighbour’s development. We ended our investigation as it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision not to take planning enforcement action in relation to development behind X’s home.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused injustice to the person who complained, 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, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I read the complaint and invited X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans.
5. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in 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. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
11. 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.
12. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
13. Although SPD can set different limits, typically councils 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.
14. 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.
15. 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.

16. We have no powers to investigate decisions made by the planning inspectorate and would not normally investigate any matter it has decided.

What happened

17. X’s neighbour was refused planning permission for development. The neighbour appealed against the refusal to the planning inspectorate. The planning inspector issued a split decision, allowing some parts of the development and refusing others. The inspector decided the development did not cause harm to the amenities of neighbours but was unacceptable in terms of its design and the impact this had on the appearance of the building at the rear of the site.
18. The neighbour made further applications to retain what was built, but the Council refused. The Council served an enforcement notice setting out the breach and what was required to rectify it.
19. The neighbour made some changes to the building. The Council considered these changes and decided that, while the requirements of its enforcement notice were not met, the impact the development had was no longer unacceptable. It decided not to take further action and closed its enforcement case.
20. I checked plans and found that the rear of X’s home is about 20 metres from the side elevation of the development site.

My findings

21. 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.
22. 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?
23. 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.
24. I should not investigate this complaint further, because:
• Before it made its decision to end its enforcement action, the Council considered the breach of planning control and the harm it caused to the public. This is the process we would expect, and so further investigation is unlikely to result in a finding of fault.
• X lives some significant distance from the site, so even if we had some evidence of fault in the decision-making process, it is unlikely we would recommend a remedy or any other meaningful outcome.

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Final decision

25. I ended my investigation as it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman