City of York Council (19 021 254)

Category : Planning > Other

Decision : Not upheld

Decision date : 15 Jan 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to approve an application on land behind his former home. We ended our investigation because we are unlikely to recommend a remedy for Mr X.

The complaint

  1. Mr X complained about the Council’s decision to approve a planning application on land at the rear of his home. Mr X says the new development affected his amenities.
  2. Mr X says the development:
    • was obtained unlawfully;
    • was built without planning permission;
    • breached his human rights;
    • did not follow Council policy;
    • caused distress and financial loss to him and his family.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

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

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How I considered this complaint

  1. I read the complaint and discussed it with Mr 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. I gave Mr X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

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 considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. 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.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  5. 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.
  6. Although local 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.
  7. Councils must give due regard to human rights when making their administrative decisions and we could consider a failure to do this was fault. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal. However, only the courts can decide whether an individual’s human rights have been breached by a council.

Background

  1. Since making his complaint, Mr X has moved home. The land behind Mr X’s previous home was subject to a planning application to extend a building.
  2. As a result of the permission, before he moved, Mr X had a single storey building with obscurely glazed windows 28 metres behind him. There were bright lights on the wall facing towards Mr X, which disturbed him. Mr X also says a new footpath on land between the boundary and the extended building affected him.

My findings

  1. Before we investigate complaints, we need evidence to show the individual complainant was caused a significant injustice by the Council’s actions. We rely on the injustice to the complainant to justify the disruptions our investigations inevitably cause to the day-to-day work of council officers and the pressure that is placed on the public purse.
  2. I did not consider it likely we would be able to find a significant injustice that we could now remedy, and my reasons are as follows:
    • Mr X has moved away from the area and is no longer affected by the new development. Mr X might claim to have moved home because of what has happened, but we would not be able to demonstrate the reasons for his move with any satisfactory degree of certainty. There can be many reasons why an individual might choose to move home.
    • Our normal remedies, if we find fault, involve practical measures, like recommending screening by additional planting or lamp cowls to shade bright lights. We may sometimes recommend payments for practical solutions on a complainant’s land. Mr X has sold the house next to the site and so would not benefit from any measure we might recommend.
    • Mr X may have carried out improvements himself, to protect his former home from the impact of the development. We cannot know the extent to which these improvements might have benefited Mr X when he came to sell his house.
    • For consideration of privacy in habitable rooms in Mr X’s former house, it is unlikely we would have been able to recommend a remedy. This is because Mr X had a greater separation distance than is normally expected.
    • We would not be able to determine whether Mr X’s human rights were breached, but in any event, I can see the Council considered the impact on his amenity before it made its decision. There would also have been a right to challenge the Council’s decision by way of judicial review.
  3. For these reasons, we should end our investigation.

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Final decision

  1. I ended my investigation as it is unlikely that we would be able to recommend a remedy for Mr X.

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Investigator's decision on behalf of the Ombudsman

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