Summary: Mr X complained about the Council’s decision to approve a housing development on land next to his home. We did not investigate this complaint further because it was brought to us outside our 12‑month time limit and further investigation is unlikely to result in a meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application for housing development on land next to his home. Mr X’s home is built directly adjoining the boundary and he believes the new house next to him should have been built further away.
2. Mr X said that the occupants of the new house are noisy and inconsiderate. He would like the Council to compensate him for the cost of noise insulation.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, 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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. 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.
6. I gave Mr 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. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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.
12. 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.
13. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. 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.

What happened

15. In 2017, the owner of land next to Mr X’s home sought planning permission to build houses, one of which was shown very close to the boundary. Mr X’s home sits directly on the boundary. He has a ground floor window, that overlooks the site. This window is about 15 metres from, and at an angle of about 40 degrees towards, the nearest habitable room window in the new house.
16. Mr X bought his home and moved into it shortly after the planning permission was granted.
17. The Council’s planning case officer considered the application and wrote reports for the committee to consider. The case officer’s reports included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees, including the previous owner of Mr X’s house;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
18. The Council approved the application subject to planning conditions.
19. Later, after the new home had been built and occupied, Mr X complained to the Council about how close the new house was to his home and how noise from the occupants disturbed his amenity.

My findings

20. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12 months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
21. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision; and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
22. Mr X knew about the application when he bought his home. The plans and background papers are available for the public to view, either on the Council’s website or at its offices.
23. In any event, 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.
24. 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?
25. 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.
26. 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.
27. I have decided not to investigate this complaint further, and my reasons are as follows:
• This is a late complaint, because the main events happened long before our 12-month time limit and Mr X was aware of the application when he bought his home.
• Even if I did investigate further, it is unlikely I would find fault in the decision making process. This is because the Council’s records show that before it made its decision, the Council considered the plans, comments from neighbours (including the seller of Mr X’s home), planning policy and other planning considerations. This is the decision making process we expect. Without fault in the process, we cannot comment on the judgements made by the Council’s officers and members.
• Even if we did find fault, it is unlikely we would be able to conclude that the outcome would be different. This is because Mr X’s home is an old property, with an atypical configuration, and there is an angle and a significant distance between his window and the nearest habitable rooms in the new property.

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Final decision

28. I ended my investigation, because this complaint was brought to us outside our 12-month time limit, and further investigation was unlikely to result in a meaningful outcome.

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Investigator's decision on behalf of the Ombudsman