Summary: Mr and Mrs X complained about the Council’s decision to approve housing development on land next to their home. They say the development will restrict wheelchair access to the rear of their home. There was no fault in the way the Council made its planning decision.

The complaint

1. Mr and Mrs X complained about the Council’s decision to approve a planning application for housing on land next to their home.
2. Mr and Mrs X complained the new house next to them will affect their private rights and Mr X’s wheelchair access along their boundary to the rear of their home.

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The Ombudsman’s role and powers

3. 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)
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 read the complaint and discussed it with Mr and 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. I listened to a recording of the Council’s planning committee meeting.
6. I gave the Council and Mr and Mrs X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

7. Councils should approve planning applications that accord with policies on 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 over another’s land;
• 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.

What happened

11. A developer submitted a planning application to build houses on land next to Mr and Mrs X’s home.
12. A planning case officer visited the site and neighbours were invited to submit comments on the application. The Council received comments, some of which supported the application and others objected to it.
13. Mr and Mrs X objected in writing to the application but made no mention of the impact the development would have on wheelchair access to the rear of their home.
14. The case officer wrote a report setting out the key material planning considerations and his recommendations. The report covered:
• a description of the proposal;
• a summary of comments from the public and other consultees;
• relevant planning law, policy and guidance;
• relevant planning history of the site; and
• the impact on visual and residential amenities and other considerations, such as highway safety, rights of way and ecology.
15. The case officer recommended approval subject to planning conditions, as he considered there was no adverse impact on highway safety, or the character and amenities of the area.
16. The application was considered by the Council’s planning committee and a recording of the meeting was made. The recording shows the issue of wheelchair access was considered by the meeting, as one councillor suggested the width of the access should be ensured by a planning condition.
17. The committee discussed other aspects of the application, including highway safety and access for residents and emergency vehicles, the impact construction would have on amenities and tree protection.
18. The Council approved the application subject to planning conditions, as recommended by the case officer.
19. After the decision was made, Mr and Mrs X complained to the Council. They said that the approval would impact upon them as an area shown on one plan was part of their land. They also said that Mr X, who uses a wheelchair, would have restricted access along the side of their home, as the new development came too close to them.
20. The Council says the plan Mr and Mrs X referred to in their complaint had been superseded by a later plan which had moved the new house further from the boundary. The Council said it could see no issue of encroachment. It said Mr and Mrs X’s boundary had not moved and their boundary fence remained and set the width of access to the rear of their home.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
22. Before it made its decision, the Council considered the plans, relevant law, policy and guidance and the comments from the public, including those from Mr and Mrs X, before making its decision. The Council has followed the process we would expect and so I find no fault.
23. If Mr and Mrs X had raised their concerns about the width of a wheelchair access before the Council’s case officer had written and presented his report, I would have expected their comments to be reflected in the report or on a ‘late comment’ record.
24. It seems that at least one councillor was aware of this issue, as he spoke about it at the meeting. However, despite his concerns the committee did not impose a further condition and approved the application. Providing the committee follows the planning process we expect and takes account of the material issues, it is free to decide what controls, if any, are necessary. This was a decision it was entitled to make.
25. The legal rights of individuals are not planning considerations. Planning decisions simply decide whether development is acceptable in terms of planning policy and other planning considerations. They do not determine private rights over land. If Mr and Mrs X think their legal rights over their land have been affected by the developer, they may argue their case in the civil courts.

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Final decision

26. I have completed my investigation as there was no fault in the way the Council made its planning decision.

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Investigator's decision on behalf of the Ombudsman