Summary: The Council properly publicised a planning application. However, it did not properly record its assessment of the proposed development on the complainant’s enjoyment of their home, which was fault. This caused limited harm to the complainant.

The complaint

1. Mrs X complained about the actions of the Council in its handling of a planning application for a development on land next to her property.
2. Specifically, Mrs X complained the Council failed to properly notify her of the application either through neighbour notification or through a site notice in her street. This denied her an opportunity to comment on the proposed development and so the Council did not have her views before it when it considered the application.
3. Mrs X complained the Council did not take proper account of the impact of the development on her property and made no reference to her amenity in the officer report on the application.

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The Ombudsman’s role and powers

4. 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

5. I have spoken with Mrs X and considered information from her.
6. I have considered comments and information provided by the Council.
7. I have also considered:
• the relevant planning application records available on the Council’s website;
• the Town and Country Planning (Development Management Procedure) (England) Order 2015; and
• the Ombudsman’s guidance for planning practitioners ‘Recording Planning Decisions’ (September 2018).
8. I have written to Mrs X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Summary of events

9. In 2017 the Council received a planning application to demolish a garage and build a detached bungalow to the rear of a property. Mrs X’s garden has a boundary with the land on which the bungalow was to be built.
10. The Council publicised the application through a combination of site notices on neighbouring streets and letters to properties that directly faced the site.
11. Mrs X says she did not receive a personal notification despite her property adjoining the development site and did not see a site notice in her street, which the Council says it put up there.
12. The Council wrote an officer report on the application which recommended approval. The report did not refer to the relationship between Mrs X’s property and the development.
13. The Council approved the application in 2017.
14. Mrs X complained to the Council she had not been notified of the application in 2018, when the development was being built.
15. Mrs X complained that, had she known about the application, she would have objected as the development impacted on her garden and her ability to build on her land in the future.
16. The Council said it had put up a site notice on her road but did not have to notify her in person. It explained how it had considered her property and the impact of the development on her but that it did not consider the impact enough to refuse the application.
17. Mrs X remained dissatisfied with the Council’s response and brought her complaint to the Ombudsman.

Analysis

18. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order) sets out what councils must do to publicise a planning application. They may also set their own local requirements beyond the national requirements.
19. The Order says the Council must publicise an application of the type in this case by “site display in at least one place on or near the land to which the application relates for not less than 21 days; or by serving the notice on any adjoining owner or occupier.”
20. The Council’s own publicity arrangements say that generally “the Council will publicise Planning Applications by displaying Site Notices on street furniture on roads close to applications sites which it considers might be affected by a development. You will not receive an individual letter notifying you of an application if you live adjacent or close to an Application Site.” This meets the national requirements.
21. The Council said it had put up site notices on three streets around the development site, including Mrs X’s. It has provided photographic evidence of two notices but not the one on Mrs X’s street. Mrs X is very clear there was no notice on her street as the poles nearest to the development site are outside her property.
22. In response to my enquiries the Council said the Planning Officer remembers the visit on the day he put up notices but did not take a photograph of the notice in Mrs X’s road.
23. Without photographic evidence, I cannot say whether or not the Council put up a site notice in Mrs X’s street. However, it did put up two other site notices which is more than the national requirements. If the Council did not put up a site notice in Mrs X’s street, that would not amount to fault.
24. The Council’s own publicity process does not include neighbour notifications. In this case the Council did notify properties directly facing the development site, over and above the national and local requirements. It did not notify Mrs X because although her garden has a boundary with the development site her house is about 30 metres away, which was likely to result in much less impact from the development.
25. I therefore do not find fault in the way the Council publicised this application.
26. Mrs X says the Council did not consider the impact of the development on her property. She says there is no evidence in the Planning Officer’s report on the proposal to show the Council considered the impact of the new house on her garden and home.
27. There is no reference to Mrs X’s property in the Officer’s report on the application. In response to my enquiries the Officer said he had visited the site and seen the relationship between the two properties. He said any site visit notes were limited and had not been kept after he had written his report.
28. The Officer said he did consider the relationship of the development to Mrs X’s property. He said “but as the [sic] had established vegetation and appeared overgrown, and given that the proposed house was at an acute angle to the property to the north, in my opinion there would not have been any of loss of privacy or overlooking to the garden beyond what would normally be expected in a suburban area. In regard to the actual property this was positioned Her [sic] approximately 30m from the from the scheme and in my opinion was adequately screened.”
29. The Officer did not include this or any assessment of the possible impact of the development on Mrs X’s property in the application report. That was fault. The Council should include all material planning considerations in its assessment of a proposed development and impact on neighbouring amenity is such a consideration. That record must be made at the time the application is considered, not through a retrospective justification where there is no evidence to support it.
30. Mrs X’s property adjoins the development site. She can see the new building from her house and has concerns it overlooks the end of her garden. She had no evidence the Council considered that in reaching its decision which caused her some understandable anxiety and upset.
31. However, I consider any injustice caused to Mrs X of the Council’s fault to be very limited. Her house is about 30 metres from the new building and is at an angle to the windows. Therefore, there is no direct overlooking into her house or of the area directly behind it in her garden, which is entitled to some privacy in planning terms. There is no such policy protecting the end of her garden and there is a mature hedge that screens the ground floor windows of the new house.
32. Mrs X said the new development means she will not be able to build on her large garden, as the developer has done. She said this is unfair and had diminished the value of her property.
33. She also said the developer breached a covenant on his land by impacting on her ability to build.
34. These are not material planning considerations the Council had to consider. Property value and future building possibilities are not issues that influence planning decisions. The covenant was a private legal document between the original land owner of the development site and a private purchaser in the 1950s. It is not something the Council had to consider within its assessment of the planning application.
35. If Mrs X considers she has been adversely affected by any breach of the covenant she should take specialist legal advice on what steps she could take.

Findings

36. I find no fault in the way the Council publicised the planning application in this case.
37. I find fault in the lack of a contemporaneous recorded assessment of the impact of the proposed development on Mrs X’s enjoyment of her home.
38. I have therefore made recommendations to remedy the limited injustice caused to Mrs X and to prevent a similar fault in process in the future.
39. In response to my draft decision the Council explained it has recently gone through a review of its ways of working, to make the process of dealing with customers more efficient. This has covered reports by planning officers. The Council conformed it has advised officers of the need to assess impacts on all neighbours as part of their consideration of any application, whether or not it receives objections from them.

Agreed action

40. I recommend the Council should write to Mrs X and apologise for failing to record its assessment of the impact of the proposed development on her amenity within the report on the planning application, and for any upset this caused her.
41. The Council should complete this and provide a copy to the Ombudsman within one month of my final decision.
42. The Council should confirm it has considered the Ombudsman’s guidance for planning practitioners ‘Recording Planning Decisions’ (September 2018), available on the Ombudsman’s website, during its recent review of ways of working.
43. The Council should provide evidence of its review and any resultant actions regarding planning application reports to the Ombudsman within three months of my final decision.

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Final decision

44. The Council publicised the planning application in this case appropriately and exceeded the national and local requirements.
45. The Council did not record its assessment of the impact of the proposed development in the report on the planning application, which was fault.
46. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman