Summary: X complained about the Council’s decision to allow development on their neighbour’s land. We did not investigate further because we decided we were unlikely to recommend a remedy or change the outcome of the Council’s planning decision.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to approve a planning application on their neighbour’s land without information details about land levels.
3. X said privacy in their garden is adversely affected by the new development.

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The Ombudsman’s role and powers

4. 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:

• we cannot show that any fault has caused injustice to the person who complained, 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, 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

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and documents from the original planning application and a more recent application to vary planning condition obligations.
6. 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

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 over another’s land;
• 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. Most planning approvals relating to development will include a condition requiring compliance with approved plans. If after approval is granted, applicants want to carry out development without complying with planning conditions, they can apply to remove or vary the original condition. The Council will then decide whether to grant permission to change obligations required in the original application.
12. An application under section 73 of the Town and Country Planning Act 1990 may allow a developer to apply to carry out development without complying with conditions imposed by the original approval. In other words, this section can be used to vary approved plans.
13. Although local policy can set different limits, councils usually allow about 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.

What happened

14. Several years ago, X’s neighbour applied for planning approval to build on the land next to X’s home. X objected to the proposal because they felt it would be overbearing and affect their privacy.
15. The application was approved subject to conditions.
16. After building work began, X complained because they thought the building was higher than shown on approved plans. The Council acknowledged it could not take enforcement action in relation to the height of the building, because the original plans did not include site levels.
17. Later, the neighbour submitted a planning application to vary plans controlled by planning conditions. The application included a plan with site levels.
18. The planning application to vary the planning conditions was considered by a case 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 the principle of development, the visual impact on the area, the impact on residential amenity, the impact on trees, and on highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
19. In relation to the impact the development would have on X’s amenities, the officer said the building would be acceptable because it included obscured windows, high screens and high-level windows on the elevation facing towards the side of X’s home. The side of X’s home is about 15m from the side of the new development. The new development sits on higher ground.

My findings

20. 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.
21. 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?
22. 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.
23. I did not investigate this complaint further, because:
• The Council has accepted the original application should have included information about site levels. While further investigation is likely to result in a finding of fault, it is unlikely we would be able to show the outcome would have been different. This is because the Council has since considered and approved an application that did include information about site levels. I saw no evidence of fault in the process of that decision, which concluded the impact of the development on X’s amenity was acceptable. Further investigation by me is unlikely to result in a different outcome.
• X feels aggrieved by the impact the development will have on how they use their home, and in particular, recreation areas near the boundary with their neighbour’s new development. The separation distance between the side of X’s home and the side of the new building is considerably more than is generally considered acceptable. Because of this, even if we found evidence of fault in the most recent decision (the variation of conditions application approval) it is unlikely we would find the new building causes X a significant injustice we should remedy.

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Final decision

24. I decided to end my investigation as it was unlikely to result in a remedy for X or a different outcome for the Council’s most recent planning decision.

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Investigator's decision on behalf of the Ombudsman