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Oldham Metropolitan Borough Council (20 006 395)

Category : Planning > Other

Decision : Upheld

Decision date : 28 May 2021

The Ombudsman's final decision:

Summary: The Council was at fault for failing to notify Mr X about his neighbour’s planning application, however this has not caused Mr X significant injustice.

The complaint

  1. The complaint, whom I refer to as Mr X, complains about the way the Council handled a planning application for a new house next to his property.
  2. Mr X says the Council did not notify him or others of the planning application and he lost the chance to raise objections. As a result his privacy and the general outlook from his garden has been impacted by the development.

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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’. 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)
  2. 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)
  3. 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. As part of this investigation I considered the complaint by Mr X and the Council’s responses. I considered the online planning documents concerning the development. I discussed the complaint over the telephone with Mr X and considered the information he provided. I sent a draft of this decision to Mr X and the Council and considered comments received in response.

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What I found

  1. The Council granted Mr X’s neighbour outline planning permission for a single dwelling property in August 2018. Mr X’s neighbour applied for approval of the reserved matters, but the Council refused this in April 2019. The Council raised concerns about a balcony which would overlook neighbouring properties.
  2. In late September 2019 Mr X’s neighbour made a further reserved matters planning application. This concerned the appearance, landscaping, layout and scale of a proposed development which the Council had granted outline approval for previously. This application made some changes to the previous application and included the removal of the balcony.
  3. The Council said it placed a site notice up on a lamp post at the front of the site. It also said it prepared letters to 12 neighbours to send out.
  4. In April 2020 the Council approved the planning application. It did not receive any objections to the development. The case officer decided the development did not significantly impact Mr X’s property as the neighbour removed the proposed balcony from the previous application, the absence of windows in the elevation facing Mr X’s property and the differing topographical levels.
  5. Mr X said he became aware of the planning application when his neighbour started construction.
  6. In September 2019 Mr X raised a complaint with the Council. Mr X said he was not notified about the planning application and lost the chance to object. He also raised concerns about the impact of the development on his property.
  7. The Council responded to Mr X’s complaint on 12 October 2020. The Council said it put up a site notice for the application and details were published on its website. The Council said there is no record of this being removed or reported to the Council. It also generated 12 neighbour notification letters, however conceded neighbours did not receive these given the number of neighbours who said they had not received a notification letter. The Council said it believes it would have approved the application even if Mr X had objected.
  8. Mr X responded to the Council on 26 October and raised further issues about the application boundary encroaching onto his land. He also said the Council had not properly considered the design of the building and overlooking into his property and garden.
  9. In November 2020 Mr X provided the Council with further information. He said:
    • Since the build has progressed the third storey with the self-contained flat and the window in the east elevation overlooks his property.
    • A section of the application site contains land which is in part of Mr X’s garden.
    • The east elevation window provides a clear line of sight between two internal living spaces and that, as indicated on the plans, was not more than 15 metres.
    • The third story consisting of the self-contained flat, will be an imposing, overbearing feature of the build over his residential amenity space.
    • The overbearing impact of the large expanse of the mono pitch roof of the second storey living space could have been reduced by an apexed roof. This would have the added benefit of making the appearance more in-keeping with neighbouring properties.
    • He was concerned with the drainage system for the development.
  10. In March 2021 the Council provided its final response. The Council said:
    • The applicant submitted an ownership certificate. The Council would not be required to undertake additional land registry checks.
    • It accepts it should have sent a notification letter to Mr X in accordance with its policy. The Council apologised and said it will remind officers of the importance of following notification processes correctly.
    • Mr X’s home is on higher ground than the development and at an approximate 45 degree angle. The Council considered only to upper most part of the building would be visible from Mr X’s garden. The separation distances between properties complies with general guidance.
    • One window does face Mr X’s home, but this serves the top of the stairway and not a habitable room. The Council accepts the stairs open onto living space but considers there is no overlooking.
    • It added a drainage condition to the planning permission when approving it requiring details of a drainage scheme.
  11. Mr X remained dissatisfied and complained to the Ombudsman.

Analysis

  1. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Council’s officers. Our role is to review the process by which decisions are made and if we find fault, to determine whether it caused an injustice to the individual complainant.
  2. Councils are required to give publicity to planning applications. The publicity required depends on the nature of the development although in all cases the application must be published on the Council’s website. In this case, the requirement was for a neighbour notification letter as per the Council’s Scheme of Delegation.
  3. The Council was at fault for failing to notify Mr X about the development. The Council said it generated neighbour notification letters on its system, however accepted neighbours did not receive the letters following feedback from neighbouring properties. As a result, the Council received no objections to the planning application.
  4. As the Council was at fault for failing to notify Mr X about the planning application I need to consider whether this caused him significant injustice. The obvious injustice is that the outcome of the planning application would have been different had Mr X objected. The case officer’s report showed the case officer considered the relevant planning policies and considered the impact of the development on Mr X’s property. The case officer decided the development did not significantly impact Mr X due to the topography between his property and the development and the separation distances. In addition, the case officer considered there were no direct windows facing Mr X’s property.
  5. The Council has also responded to Mr X’s objections through the complaints process. It accepted there is one window on the side of the development facing Mr X’s property but this is on the stairway. It also considered the separation distances between Mr X’s property and the development were suitable.
  6. While I recognise Mr X disagrees with the Council’s views about the impact of the development on his property, this is a conclusion the Council is entitled to come to. The Council has considered the impact of the development in the case officer’s report and Mr X’s concerns about the development in its subsequent complaint responses. On balance I do not consider the outcome of the planning application would have been different had Mr X objected. Therefore I do not consider Mr X has suffered significant injustice as a result of the Council’s fault.

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Final decision

  1. I have completed my investigation and found the Council was at fault for failing to notify Mr X about his neighbour’s planning application, however this did not cause him significant injustice so no remedy is recommended.

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Parts of the complaint that I did not investigate

  1. I did not investigate Mr X’s concerns about the party wall between his and the neighbour’s boundary as this is a private dispute. Mr X would need to seek his own legal advice or remedy should he feel his neighbour has damaged the party wall or is building on his land.

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Investigator's decision on behalf of the Ombudsman

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