Summary: Mrs X complained about the Council’s decision to approve development behind her home. We ended our investigation because it was unlikely to result in a finding of fault or a remedy for Mrs X.

The complaint

1. Mrs X complained about the Council’s decision to approve development on agricultural land behind her home. Mrs X said the Council failed to properly consider planning issues, including drainage problem and ecological policy requirements, before it made its decision.

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The Ombudsman’s role and powers

2. We may 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. (Local Government Act 1974, sections 26(1) and 34(3), as amended)
3. We do not normally start or continue an investigation if we decide:

• the alleged fault has not caused a significant 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.

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

4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

5. 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.
6. I gave Mrs X and the Council an opportunity to comment on a draft of this decision and considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Regulations set out the minimum requirements for how councils publicise planning applications.
8. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
9. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
10. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions.
11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
14. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
15. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
16. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
17. Although 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.
18. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
19. Planning and listed building consent applications should be made within statutory time limits. The time limits are:
• 13 weeks for major developments;
• 8 weeks for all other types of development; and
• 16 weeks for development that require an Environmental Impact Assessment.
20. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a government minister. If a decision is not made within the time limit, the applicant can appeal to the Planning Inspectorate. This type of appeal is known as a ‘non-determination’ appeal.
21. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
22. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it.
23. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and they are an important planning consideration, we would expect to see evidence to show the council had taken the issue into account before it made its decision. Without some evidence to show the council considered the issue, we cannot know whether it has exercised its discretion properly.
24. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.
25. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Background

26. The field behind Mrs X’s home was subject to a planning application for development. The site was identified in a council policy document as an important wildlife habitat.
27. The application was not decided within the time limit and the developer made a non-determination appeal to the Planning Inspectorate.
28. Before the appeal was decided, the Council’s planning committee met to consider the matter and decided that it would be minded to approve the application, subject to completion of a section 106 agreement, requiring:
• land for ecological mitigation; and
• drainage maintenance and bond.
29. The Council wrote to the Planning Inspectorate and explained its position. The developer submitted another planning application, which included part of the site to be set aside for enhanced ecological habitat and transferred to a national wildlife charity that maintains reserves.
30. A report was prepared by a case officer to advise the planning committee. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees, including the national wildlife charity, the County Ecologist, Natural England;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on ecological matters, residential amenity, flooding and drainage, and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions and completion of a section 106 agreement.
31. The report also set out details of the publicity process that had been used.
32. The Council’s planning committee approved the application in accordance with the case officer’s recommendations.
33. Mrs X complained to the Ombudsman about the Council’s decision. She said that:
• the Council’s policy meant that it should have maintained the whole site for wildlife habitat;
• the Council should not have approved the application, because the lead local flood authority does not support discharging planning conditions and the local water company is not prepared to take responsibility for site drainage; and
• the Council did not properly publicise the planning application.

My findings

34. 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.
35. 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?
36. 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.
37. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
38. I should not continue this investigation further and my reasons are as follows:
• The plans show significant distances between Mrs X and new buildings behind her and the impact on residential amenity was considered before a planning decision was made. It is unlikely that further investigation would result in a finding of fault, show Mrs X was caused a personal injustice or result in a recommendation for a remedy for her.
• Where there is no evidence of a personal injustice to the complaint, we have a power and discretion to investigate if we have evidence to show that other individuals were caused significant injustice by some fault in the decision-making process. I have seen no evidence that persuades me to use this power here.
• Mrs X believes the Council should have maintained the whole site as an ecological habitat. Before the Council made its decision, it considered its policy relating to the site, it consulted with relevant consultees, including the national charity that is prepared to maintain the land set aside for a wildlife reserve. The Council accepted the advice that a smaller, dedicated and permanent reserve would have greater ecological value than a larger area of unmanaged agricultural land. Before the Council made its decision, it considered the issues, relevant policy and comments from consultees, so it is unlikely we would find fault.
• The Council approved the application subject to planning conditions controlling drainage and flood protection measures. As I understand it, the drainage conditions have not yet been discharged because of ground problems on the site. It is possible a technical solution might be found and agreed amongst the interested parties. We are not an appeal body and so have no power to decide whether applications should be approved, or conditions imposed, or condition requirements should be discharged. The case officer’s report shows that before it made its decision, the Council considered the application plans, and the advice from consultees relating to drainage and flooding. It followed the decision making process we would expect and so it is unlikely we would find fault. In any event, even if the drainage conditions are eventually discharged, the Council would not be directly responsible to private individuals from any drainage problems caused by the development.
• Mrs X believes the Council should have used a different newspaper to publicise the application. She said the Council should have checked the paper’s circulation before choosing it for publicising planning notices. I checked the website for the paper and saw that it is available free on-line and at pick-up points across the area. I doubt that further investigation would result in a finding of fault, as the regulations simply refer to use of a local newspaper, and do not stipulate how widely read it must be. I also saw that the case officer’s report summarised a very large number of comments, so it would seem the publicity process was effective. Because of this, I consider it unlikely that, even if I was to find fault, I would be able to show the outcome would have been different.

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Final decision

39. I ended my investigation as it was unlikely to result in a finding of fault or a remedy for Mrs X.

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Investigator's decision on behalf of the Ombudsman