Summary: Mr X complains about a large housing development next to his property. The Ombudsman found the planning decisions in this case were matters of professional judgement for the officers involved. There is no evidence the Council took anything other than proper considerations into account in weighing up the decisions in question and so no apparent fault. There was however fault in the Council’s significantly delayed response to Mr X’s complaint at Stage 2. The Council has already apologised for this and the Ombudsman decided no further remedy was necessary.

The complaint

1. Mr X complains the Council gave planning approval for a large housing development next to his property. He believes the site and design of the new houses is unsuitable. He says the level of the original land has risen by around 4 feet. Mr X complains this has caused severe overlooking and negatively impacted on the value of his own property.

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What I have investigated

2. I have investigated events from when the Council considered the reserved matters planning application in this case.
3. There are other elements of Mr X’s complaint I am unable to investigate. I have explained why at end of this statement.

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The Ombudsman’s role and powers

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)
5. 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)
6. 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)
7. 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

8. I spoke with Mr X and reviewed his detailed correspondence with the Ombudsman about his complaint. I wrote to the Council to make enquiries and reviewed the information sent in response.
9. I also read information about the planning applications which is publicly available on the Council’s website.
10. I shared a copy of my draft decision with Mr X and the Council and I invited them to comment on it.

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What I found

The planning process

11. This case involves two types of planning application. Outline planning permission establishes whether a proposed development is acceptable in principle at the location in question. However, work cannot begin until a ‘reserved matters’ application receives consent. Reserved matters can be any or all of access, appearance, landscaping, layout, and scale of the development.
12. The law says councils, as local planning authorities, must give publicity to planning applications and notify adjoining landowners about them directly. The publicity needed depends on the nature of the development, although in all cases it must publish the application on its website. Often councils publish supporting documents and plans too.
13. An application for approval of details of reserved matters is not a planning application, and so there is no legal requirement to give publicity to such an application.
14. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
15. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or drop in the value of a property. Material considerations include issues such as overlooking, traffic generation, noise and government policy.
16. Local opposition or support for a proposal is not grounds for refusing or granting planning permission, unless is it founded on valid material planning reasons. It is for the decision maker to decide the weight to give to any material consideration in making a planning application.

This case

17. Mr X says until the development at the centre of this complaint his garden backed onto fields.
18. A developer made an application for outline planning permission to build a significant estate of houses on the land behind Mr X’s house. Mr X knew about the application and wrote with objections at the time. The Council’s planning officer responded to some of these in their report.
19. The Council granted outline planning permission for the development subject to conditions. One of these conditions, which needed approval from the Council before building work could start, referred to the “slab levels of the building(s) in relation to the existing and the proposed levels of the site and the surrounding land.” This linked to a need to make sure the new development had proper drainage capability.
20. The developer put in a reserved matters application providing more specific details about the proposed housing estate in 2017. There is no record Mr X wrote with any objections to this application. However, Mr X appears to have been in touch with the developer directly to express his concerns about it. Also, the local parish council objected to several aspects, one of which was about the height of the new house nearest to the end of Mr X’s garden.
21. The developer also applied to discharge various conditions from the outline planning permission in 2017. It took the Council nearly 12 months to decide this application, during which time it negotiated with the developer and sought further details. It eventually approved the discharge of most of the conditions, including the one about the proposed levels of the site.
22. When building work started for the new housing estate Mr X was unhappy with the height of the houses nearest to the end of his garden. Mr X says as a result, he now suffers from overlooking, made worse because the estate has been built on a ‘raised platform’ compared to the existing field. He says the increase is about 4 feet.
23. Mr X wrote to the Council to complain, to outline his concerns and ask various questions about the development. He told the Ombudsman the Council took too long responding to his complaint and when it did, it contained many ‘misleading statements’ or avoided answering some of his questions completely.
24. Mr X believes there has been incompetence or negligence in the planning process. He is unhappy with the reliance the Council put on comments from the local parish council. Mr X raised concerns about comments made by a Council officer from another department consulted as part of the application process. The officer said she had concerns about why the site need to be raised. Mr X says he asked the Council how it dealt with that officers’ concerns but it never told him.
25. In response, the Council says it has taken Mr X’s comments seriously and tried to answer them. It felt several of his concerns relate to the internal functioning of the parish council and it explained to Mr X why it could not answer for that. Mr X strongly disputes the Council took his complaint seriously.
26. In respect of the time taken to respond to Mr X, the Council’s complaints policy says it should respond at Stage 1 and Stage 2 in around 15 working days. In this case, based on the known dates, the response to Mr X at Stage 1 took 13 working days and at Stage 2 took 34 working days.

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Analysis

27. The Ombudsman can only find fault where we can show the Council has not followed the correct process in reaching a decision. Where it has done that we cannot intervene, even where someone strongly disagrees with the decision itself. This is because officers can use their professional judgement to make decisions using their training and experience, and we are not an appeals body.
28. The planning officer considered Mr X’s amenity as a neighbour in their report about the reserved matters application. This included consideration of separation distances, whether the proposed properties would be overbearing and privacy levels. I am satisfied the final decision was one the planning officer could make and was not fault. Any effect on the value of Mr X’s property is not something the planning officer could consider.
29. The Council agreed the level of the land for the development when it discharged a condition of the outline planning application. The Council had no legal duty to notify or consult with Mr X about this. The developer filed plans proposing a rise of 99cm – slightly less than the 4 feet Mr X estimated in his complaint. The available evidence clearly shows the Council considered the plans and invited comments from other staff members to seek their views.
30. Mr X picked up on comments made by a landscape officer employed by the Council, expressing concern about the rationale for the increase in the level of the land. However, the landscape officer is not the decision-maker for the planning application, so any comments made are advisory rather than a reason alone to not approve the plans. It is clear the planning officer in the case passed on the landscape officer’s concerns to the developer and considered their response before approving their plans. The landscape officer was copied into that correspondence. The final decision was a matter of professional judgement after considering the available options.
31. In addition, a complaint about the level of the new estate after building work started led to an investigation by the Council’s planning enforcement team. This proved the building work matched the approved plans. While the Council may not have had access to the equipment to measure the levels, the developer did. The enforcement officer’s record says he ‘directed’ the checks and on balance it is reasonable to conclude he witnessed the results personally. Mr X disagrees with my conclusion but in the absence of evidence to the contrary I believe it is reasonable.
32. I also read the Council’s complaint responses to Mr X. While he is not satisfied with them, it is not the role of the Ombudsman to answer or seek answers to Mr X’s questions where they do not link directly to whether there was fault. My view is what Mr X views as ‘misleading statements’ by the Council’s officers are simply differences of opinion. While Mr X can hold strong views about the development of the housing estate, the Council’s disagreement with those views is not fault.
33. Nor is the Council responsible for the actions of the local parish council. Parish councils are statutory consultees for planning applications and so the Council had to notify them. That being the case, I cannot find fault with the decision to do or to consider representations made by the parish council in return.
34. However, while the Council sent its Stage 1 complaint response within the timeframe set out in its policy, there was a delay to the Stage 2 response without good reason. It took over twice as long as it should have, and this was fault. This caused a significant injustice to Mr X in the form of frustration which we would expect the Council to apologise for. In this case, the Council already wrote to Mr X to say it ‘sincerely’ apologised for the delay. No further remedy is necessary.

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Final decision

35. There was no fault in the Council’s planning decisions in this case, taken on their own merits and which were matters of professional judgement. There was however fault when the Council took over twice as long to respond to Mr X’s Stage 2 complaint than set out in its complaints policy.

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Parts of the complaint that I did not investigate

36. The outline planning permission granted in 2017 settled the principle of building a housing estate on the fields behind Mr X’s house. It is too late now to investigate that decision. Mr X was aware of it at the time and has presented no good reason why he could not have complained about it sooner.
37. Mr X’s complaint to the Council set out concerns about his local parish council’s involvement. I have explained my view of this in Paragraph 33. I cannot go any further, to investigate the actions of the parish council directly, as it is not a body within the Ombudsman’s jurisdiction.
38. Finally, part of Mr X’s complaint is a local councillor said at a public meeting there was a ‘disconnect’ in this case. However, the comment itself is not something the Ombudsman can investigate. It does not obviously indicate fault and the statement could be said to have any meaning or none. It was made by an elected member rather than a Council officer involved in determining the various planning applications. The basis of Mr X’s complaint about it was to ask the Council to explain what the councillor meant by his remark. That is not a question the Ombudsman could ever answer.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman