Blackburn with Darwen Council (18 012 538)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 25 Mar 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council approved a planning application that affected his amenity and his private rights. There was no fault in the process by which decisions are made.

The complaint

  1. Mr X complains that the Council approved a planning application for his neighbour’s extension, and that:
    • his home no longer appears to be detached;
    • his home is devalued;
    • the extension will overhang his property and so be in breach of the Party Wall Act;
    • by granting permission, the Council has caused conflict between him and his neighbour.
  2. In addition to affecting his private rights, Mr X believes the development will affect his amenities.

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The Ombudsman’s role and powers

  1. We 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. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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. I read the complaint and discussed it with Mr X’s representative. 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 the Council and Mr X an opportunity to comment on my draft decision and have taken account of the comments I received.

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What I found

  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:
    • private property rights;
    • views over another’s land;
    • the impact development will have on property values.
  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. Council planning case officers often set out their views on the material planning considerations in reports. The law says that case officer reports do not need to include every possible planning consideration, but only the key material planning considerations. The courts recognise that case officer reports are written to inform the parties to the decision (the applicant and the council) who are familiar with the issues.

What happened

  1. Mr X’s neighbour applied for planning permission to build a 2-storey side and roof extension to his house.
  2. The case officer visited the site, considered the application plans and wrote a report. The report shows the officer considered the plans, local and national policy and guidance and the main planning considerations, including the impact on neighbouring amenity. The case officer recommended approval subject to planning conditions, and the Council approved the application.
  3. The decision included an ‘informative’ note, which reminded the applicant that planning permission granted no private rights in relation to any party wall.
  4. In response to an earlier draft of this decision, Mr X’s representative said:
    • Mr X did not get an opportunity to see the case officer’s report before a decision was made on the planning application or his complaint to the Council;
    • The case officer’s report states the extension will be built up against another neighbour’s party wall, but does not mention that it will be built very close to his property;
    • The case officer’s report says no windows will be affected, but his bathroom window faces the extension;
    • The Council did not give proper or sufficient consideration to the planning considerations, including the impact on his amenity or removal of parking space.
    • The only way the Ombudsman could properly consider the impact on Mr X’s amenity, would be by carrying out a site visit.

My findings

  1. We are not an appeal body for planning decisions. Our role is to review the process by which decisions are made and, where we find fault, to determine whether an injustice was caused. We cannot criticise a decision made without fault, or put our own opinion forward on how well a decision was made, whether consideration was adequate or sufficient.
  2. Before making its decision, the Council should consider:
    • comments from the public and other consultees;
    • policies in its local plan and any other national or local planning guidance;
    • the characteristics of the site and its design and the impact it will have on its environment; and
    • relevant law.
  3. The Council has taken account of these issues and made its judgement. It has followed the process we would expect and in these circumstances, I cannot say there was fault. The weighing of different policy and planning considerations, which may well conflict with each other, is therefore a matter for the Council, which is acting here as the local planning authority.
  4. Mr X raises issues that are not planning considerations, such as his private property rights, the impact on property value and the application of the Party Wall Act. Council cannot give any consideration to these issues when making their planning decisions. They can provide advice though, and has done so here by pointing out to the developer that planning permission gives no permission to build on or against another’s property.
  5. I will now address other issues that were raised by Mr X’s representative in response to an earlier draft of this decision.

No opportunity to see the case officer report

  1. The case officer report is found on the public planning file and may be viewed at the Council’s offices. A copy of the report may also be found on the Council’s website.
  2. At the time this decision was made, case officer reports were found only on the public planning file, but since then, the Council has changed its practice. Case officer reports are now shown on the website with the other planning documents.
  3. While it would have been better for Mr X if the report had also been available on the Council’s website as well as the public planning file, I cannot say this made any difference to the outcome. This is because the material planning considerations were taken into account before a decision was made.
  4. Mr X was not a party to the planning decision, and had no right to be treated as such. His rights are limited to putting his comments forward for consideration before a decision was made.

Failure to mention proximity to boundary

  1. The case officer refers to another neighbour’s wall and says the extension will be built against it. The case officer makes it clear that this is not a material planning consideration, and added an ‘informative’ note to the planning decision notice to this effect.
  2. The plans indicate the extension is close to Mr X’s home, but not that it adjoins it. If it does, or if there is another form of trespass, these may be resolved using private legal rights. Private legal rights are not planning considerations. A council cannot refuse an application merely because a private right is affected or infringed.

Failure to mention Mr X’s bathroom window

  1. Case officer reports do not have to include every possible consideration and it is matter of discretion for the Council and its officers what the main considerations are. Councils do not normally provide significant protection for non-habitable rooms, such as kitchens, bathrooms and utility rooms. This Council has a supplementary planning document, the Residential Design Guide, which repeats this principle.
  2. In these circumstances, I cannot say the lack of reference to the bathroom window was fault.

Inadequate consideration of amenity and parking requirements

  1. The case officer report shows the impact on amenity and parking were considered and therefore there was no fault in the decision-making process.
  2. We are not a planning appeal body, and in the absence of fault in the decision-making process, we cannot comment on how well a decision was made.

Failure to visit the site

  1. Mr X would have preferred me to visit the site so that I can fully assess its impact on him.
  2. It was not necessary to visit the site to make my decision about the planning process. If I had found fault, I might have visited the site to assess the impact on Mr X and the injustice this caused, but I found no fault.

Final decision

  1. I have completed my investigation as there was no fault in the Council’s decision-making process.

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Investigator's decision on behalf of the Ombudsman

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