Summary: The Ombudsman found fault by the Council on Mr T’s complaint about it failing to notify him of his neighbour’s planning application for consent for a double garage built. This caused no injustice to Mr T as an enforcement officer told him about the application, he made representations, and the planning officer referred to, and considered them, in the report.

The complaint

1. Mr T complains the Council failed to notify him of his neighbour’s retrospective planning application for the retention of a garage on land close to his which was too large to qualify as permitted development; as a result, he lost the opportunity to have his representations considered, now has a window from the garage overlooking his garden, and water from a downpipe draining onto the land next to his boundary.

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The Ombudsman’s role and powers

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)
3. 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)

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How I considered this complaint

4. I considered all the information Mr T sent, his photographs, as well as the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr T and the Council. I considered Mr T’s response.

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What I found

5. To the rear of Mr T’s property, his neighbour had a single garage close to their shared boundary. It had a side window facing across the neighbour’s own garden.
6. In 2018, the neighbour removed this garage and built a larger double garage in its place. Mr T claims in doing so, the neighbour raised the ground level at this location by about 0.6 metre. The garage is close to the boundary with the rear of Mr T’s garden.
7. Mr T reported this development to the Council. He is unhappy with the side window in it and claims this overlooks his garden and conservatory. He also said the neighbour’s downpipe from it drains on to his land and not a soakaway on the neighbour’s side.
8. The Council explained an enforcement officer visited the neighbour following Mr T’s report. The officer found the garage did not comply with permitted development rights because of its size and location. Permitted development rights are a type of planning consent granted by parliament provided the development comes within certain restrictions. As consent is already given, no application needs making to a local council.
9. The officer noted the neighbour did not have planning consent and invited the neighbour to apply for it. The neighbour sent an application.
10. The officer told Mr T when the Council received the application. Mr T claims an officer also told him there would be a planning committee meeting at which he could make representations, but this did not happen.
11. A planning officer visited the site to assess the development and its impact on other residents. Mr T said he did not receive a notification letter. He argues he lost his right to have his say on the application because of this, and it not going to the planning committee. Nor does he believe the Council properly considered the application, particularly its impact of his amenities.
12. In response to my enquiries, the Council explained it had to notify residents of the application either by letter or, posting a site notice outside the application site. The Council writes to all properties adjoining or opposite a development site to notify them of an application.
13. While accepting it failed to notify Mr T of this application, the Council explained the enforcement officer told him about it 10 days after notification letters were sent to residents but, before the planning officer prepared the report. The Council noted Mr T’s online representations were addressed in the planning officer’s report which said:

• There was no evidence of the land being raised;
• There was overlooking of his garden, but this was an existing situation with little, if anything, to do with the garage. Mr T’s garden was set at a lower level to the neighbour’s garden;
• It is 8 metres from his conservatory, which is about the same for Mr T’s other neighbours;
• The garage is at an angle to Mr T’s property and ‘splayed away’;
• The height of the fence leaves mutual overlooking but again, this was an existing situation. Mr T maintained the fence is 6 foot high and was effective at screening before the land level was raised;
• Most of the garage wall is shielded at the rear by the fence and the pitched roof is angled and splayed away from the boundary; and
• While the side window would create some overlooking, the report decided this was less than if it had been to a habitable room, which would be used during the day.

Analysis

14. The statutory notification procedure provides a council must publicise this type of application either by displaying a site notice 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. (Regulation 15, The Town and Country Planning (Development Management Procedure)(England) order 2015)
15. The Council’s publicity arrangement for planning applications states for all planning applications, ‘all neighbours adjacent to or opposite the application site will be notified by letter’. (Statement of Community Involvement (November 2015))
16. The Council accepts it failed to send Mr T a notification letter. This failure is fault.
17. I am not satisfied this caused him an outstanding injustice. This is because:

• the enforcement officer told him about the application received by the Council. This meant he had the opportunity to make his representations, which he took. While I could not see his representations listed on the Council’s website for this application, they were referred to, and considered, in the planning officer’s report; and
• the neighbour’s garage window does not directly face Mr T’s house or garden. It is on the side elevation of the garage which looks across the neighbour’s own garden. It is angled away from his property by just below 90-degrees. This means any overlooking of his garden and conservatory from this window is limited because of the window’s oblique angle.

18. The report also recommended a condition so water from the downpipes and guttering is disposed of onto the neighbour’s land near a soakaway. This was to prevent flooding of neighbouring gardens. This was put in the decision notice as a condition of the planning consent. If Mr T believes the neighbour has failed to comply with this condition, he needs to tell the Council so it can investigate.
19. I am also satisfied the Council considered the claims, and his evidence, that the neighbour had raised the level of the land.
20. There is no evidence a Council officer told Mr T the application would go before the planning committee for a decision and he would have the chance to put his representations to it. The Council’s constitution sets out the scheme of delegation to officers for certain decisions. This allows the head of housing and development to decide planning applications with certain exceptions. This type of application is not one of those exceptions. This means it did not need to go to the planning committee for a decision.

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Final decision

21. The Ombudsman found fault on Mr T’s complaint against the Council. The fault did not cause him an injustice.

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Investigator's decision on behalf of the Ombudsman