Cheshire West & Chester Council (19 020 433)

Category : Planning > Other

Decision : Not upheld

Decision date : 04 Dec 2020

The Ombudsman's final decision:

Summary: Mrs X complained about the way the Council dealt with her complaint about a breach of planning control that caused an impact on her amenity. There was no fault in the way the Council made its decisions.

The complaint

  1. Mrs X complained about the way the Council responded to her request to take enforcement action when the developer building houses behind her home built them higher than had been approved in an outline planning decision.
  2. Mrs X believes her amenities will be affected by the new houses.
  3. Mrs X also complained about the way the Council dealt with her complaint through its complaints procedure.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  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. Mrs X and the Council had an opportunity to comment on a draft of this decision and I took account of the comments I received.

Planning law and guidance

  1. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
  2. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. On larger developments, applicants often submit ‘outline’ applications, with plans that give an indication of what is proposed to be built, and include some details, usually including details of access to the highway. An outline approval can be followed by a ‘reserved matters’ application, which will provide all or most of the details needed to make a decision.
  3. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  4. 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.
  5. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  6. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance might be included in the local plan alongside policy or issued in supplementary planning documents that can be found on council websites.
  7. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of 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 local guidance 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.
  10. 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.

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What I found

  1. The land behind Mrs X’s home received outline planning permission for a housing development. The Council approved plans and imposed conditions relating to drainage and site levels.
  2. Work began on the site before a reserved matters decision was made. Mrs X’s husband noticed the floor slabs on the houses behind were built too high. Mr and Mrs X complained to the Council about this and a planning enforcement officer visited the site.
  3. The planning enforcement officer visited the site and found the land levels had indeed been raised and that a planning condition, imposed by the Council when it approved the outline planning application, was in breach.
  4. The Council spoke to the developer who agreed to lower the levels of the floor slabs of the houses behind Mrs X’s home, though in places, they remained slightly higher than originally planned.
  5. The Council’s enforcement officer decided that, though there was a breach of condition, the difference in height did not cause a significant impact on neighbouring amenity, and so no further action was justified.
  6. The developer then submitted a reserved matters application. The case officer wrote a report, setting out the main planning considerations and his recommendations. The report included details of the enforcement action and the Council’s view that, because more than minimum separation distances were still met, the relationship between the new and existing housing was acceptable.
  7. Mrs X was dissatisfied with the Council’s actions. She says that, if her husband had not noticed the problem, the Council would not have taken any action at all. Mrs X was also disappointed with the Council’s responses to her complaint under its complaints procedure. She says the Council failed to properly address her concerns and was late in its response.

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 fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
  2. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
  3. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.
  4. In this case, the enforcement officer found a breach of planning control and negotiated some improvements. The Council decided not to take further enforcement action, because the separation distances were adequate.
  5. Subsequently, the change in levels was confirmed when development was approved in a reserved matters application.
  6. The Council followed the decision-making process we would expect, and so I find no evidence of fault.
  7. Mrs X also complained about how the Council responded to her complaint through its complaints process.
  8. While we would not condone any discourtesy or service failure, we do not routinely investigate complaints about complaints procedures. There are several reasons for this, but in summary, the main reasons are as follows.
  9. We investigate whether a significant injustice is caused by fault in the Council’s decision-making process. If complainants are unhappy with a council’s response or lack of response to a complaint, we can review how the council dealt with the original and substantive issues that caused concern. We are a stage beyond the council’s own complaints processes and can remedy any injustice it has failed to address.
  10. Generally, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. If we find no fault or significant injustice, or the issue is outside our remit, investigation into side issues is unlikely to result in a remedy or a meaningful outcome.
  11. I have not seen evidence of a significant injustice that would lead me to investigate this part of Mrs X’s complaint further.

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Final decision

  1. I completed my investigation because there was no fault in the way the Council made its decisions.

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Investigator's decision on behalf of the Ombudsman

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