• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: The Council has accepted there was fault in the way it reached a decision to grant planning permission for a housing development next to Ms X’s home. The Council has offered to pay Ms X £500 to acknowledge this. There is no fault in the way the Council reached its decision to grant planning permission for a second planning application for the site based on amended plans.

The complaint

1. Ms X complains the Council granted planning permission for a development next to her home which has a significant impact on light coming into her home and outlook from her windows and garden. Ms X says the proposed development will also be overbearing as it is three storeys high in places. She says the lane outside her property will be narrower because of the development and she will not be able to park her car in her parking space.
2. Ms X says the Council has granted planning permission for the development even though it includes land which does not belong to the developer. She says the developer did not declare this when he applied for planning permission and so the application should be void.
3. Ms X says she has been harassed by a senior Council officer and the developer. Ms X says this has had a significant impact on her wellbeing and has had a significant impact on her son’s health.

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The Ombudsman’s role and powers

4. 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)
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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

7. I have spoken to Ms X about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to her complaints.
8. I have considered information about the planning applications which is available to the public on the Council’s website.
9. I have considered the Ombudsman’s guidance on remedies which is available on our website.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning law

11. All decisions on planning applications must be made in accordance with a council’s development plan, unless material considerations indicate otherwise.
12. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.
13. Councils will notify local people when a planning application is received and give them an opportunity to comment. The volume or strength of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission. However, councils must consider any material planning considerations raised in comments from local people.

What happened

14. In April 2017 the Council received a planning application for six residential properties on land next to Ms X’s home. The land was occupied by a building which had been both a public house and restaurant at various points in the past.
15. The Council’s planning committee considered the application on 1 November 2017. The committee considered a Council officer’s report which considered the impact of the development on Ms X’s home.
16. Ms X spoke at the planning committee meeting. She asked for more time to speak and for permission to distribute annotated copies of the proposed plans. Ms X said this was because she was dyslexic. The Chair of the planning committee said she could not distribute the annotated plans and would only be given the standard amount of time to speak.
17. The Council’s planning committee voted to grant planning permission for the development.
18. Ms X complained to the Council about how she had been treated at the committee meeting. The Council decided it would be appropriate to hold a second meeting and allow Ms X to distribute her annotated plans to assist her in raising her objections to the application.
19. The second committee meeting was held on 1 December 2017. The committee considered the same case officer report but also considered Ms X’s annotated plans. The committee voted to grant planning permission for a second time.
20. Ms X was unhappy with the Council’s handling of the planning application and made a complaint. The Council responded to her complaint in February 2019. It found:
    • The Council took account of Ms X’s request for reasonable adjustments by holding a second committee meeting to consider her submissions.
    • The Council failed to provide its planning committee with advice it received from the Fire Service about emergency vehicle access. The Council said it held the second committee meeting where this was considered.
    • The Council’s online planning records were unavailable for three days and were not available until less than 24 hours before the planning committee meeting. The Council said it had held a second committee meeting to address this issue.
    • The Council failed to provide a proper response to Ms X’s concerns about land ownership issues linked to the application.
    • The Council failed to provide Ms X with an assessment of the impact of the development on her property when she requested it.
    • The Council failed to amend inaccurate measurements in its officer report when Ms X highlighted these. This was despite the Council agreeing with Ms X’s measurements.
    • The Council failed to identify inaccurate information provided on approved plans showing the relationship between the development and Ms X’s property.
    • The Council accepted there were ongoing concerns about emergency vehicle access to the lane where Ms X as a result of the new development. The Council said it would carry out a review of this.
    • The Council accepted it had not properly considered the impact of the development on Ms X or other residents. It said it had failed to acknowledge or explain these issues when she had raised them.
21. In July 2019 the Council wrote to Ms X to offer her £500 to recognise the distress and time and trouble she had been put to as a result of the fault it had identified. However, the Council said it would still have granted planning permission even if had acted without fault.
22. In July 2018 the Council received a further planning application for the same site. The new application made changes to the approved plans. The Council’s case officer report said the majority of changes were to the side of the building which faced away from Ms X’s house.
23. The officer report also considered the impact of the development on Ms X’s house. It said considered plans which had been submitted showing the relationship between both properties. The report said the orientation of the buildings would mean that the proposal would not result in overshadowing of Ms X’s property.
24. The report also considered the impact of the development on outlook from Ms X’s property. The report said there would be “a degree of impact” on some windows but these would still retain views to the north west. The report acknowledged that the outlook from a window to a small sitting room would be affected as it would face a three storey high building 5.5 metres away. However the report said the same room had “glazed French doors” overlooking a garden and “it is considered that the impact of the proposal would not result in so significant a sense of enclosure within this room as to render the relationship unacceptable in policy terms”.
25. As part of the Council’s consideration of the application it consulted the Fire service. The Fire service said the development would not affect access to Ms X and her neighbour’s property.
26. The Council also addressed concerns about the development being built on land which did not belong to the developer. The Council said it noted residents’ concerns but without evidence to contradict information provided by the developer it had to accept the planning application was valid.
27. The application was considered by the Council’s planning committee and planning permission was granted.
28. Ms X says she has been intimidated and threatened by the developers. She also says a Council officer has also been rude about her to other officers and councillors. She says the Council has not taken her concerns seriously.
29. Ms X says the development will block light to her property and affect her outlook. She says the whole process has had a serious effect on her health and the health of her family. Ms X says the development will also mean she is unable to manoeuvre her car into her designated car parking space as the lane she uses to access the space will be too narrow.

My findings

30. The Council has identified fault in the way it considered the first planning application. It was able to resolve some of the impacts of the fault by holding a further planning committee meeting to properly consider Ms X’s concerns.
31. However, the developer has since made a further planning application which amends plans for the development. I understand the developer intends to build the development as set out in the second planning application. Therefore, any fault by the Council in reaching its decision to grant planning permission for the first application has not caused an injustice to Ms X in terms of the impact of the development on her property.
32. Ms X was put to unnecessary time and trouble dealing with the Council about the first application. She had to produce her own plans to show that the developers plans were inaccurate and had to attend two committee meetings after the planning committee failed to consider whether it needed to make reasonable adjustments for her.
33. The Council has offered to pay Ms X £500 to recognise the injustice caused as a result of the fault it identified. This is a suitable remedy in the circumstances of this complaint and is in line with the Ombudsman’s guidance on remedies.
34. I was not present when a Council officer is alleged to have been rude about Ms X and so I cannot reach a view on this. However, the Council has already accepted its communication with Ms X was poor and the financial remedy it has offered would be suitable in recognising this.
35. There is no fault in the way the Council has reached its decision to grant planning permission for the second planning application. The Council has considered the impact of the development on Ms X’s property.
36. It is inevitable that any new development will have some impact on existing properties and the Council has acknowledged this. The Council has set out its consideration of the impact on Ms X’s property as well as access for emergency vehicles and land ownership rights. The Council has set this against its own planning polices. The decision to grant planning permission is one the Council is entitled to take and the Ombudsman cannot criticise the merits of a decision taken without fault.
37. The Council has not set out consideration of Ms X’s ability to manoeuvre into her car parking space next to her property. However, this is not something I would expect the Council to take account of when considering a planning application as it is essentially about land ownership.
38. Land ownership or land disputes are not something the Council can take into account when granting planning permission. If a developer or builder attempts to build on land, they do not own then it is open to the owner of the land to take action in the courts.
39. If Ms X is unable to manoeuvre her car into her parking space this may be because she had to access land she did not own or had no rights over. If she is unable to manoeuvre her car because the development is being built on land she owns or has rights over then she can take action against the developer to prevent them from building on or over it. However, this is not a matter for the Council to deal with through the planning process.

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Final decision

40. I have completed my investigation. This is because:
    • There was fault in the way the Council dealt with the first planning application. However, this has since been superseded by a further application and the Council has provided a suitable remedy for Ms X for the unnecessary time and trouble she was caused.
    • There was no fault in the way the Council dealt with the second planning application.

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Investigator's decision on behalf of the Ombudsman

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