Summary: Mr X complained about the Council’s decision to approve a development near his home. Mr X says the Council caused him to become seriously ill and he would like the building to be demolished. We cannot quash planning permissions or determine liability for an injury to health: only the courts can provide these remedies. We did not investigate further because we are unlikely to find fault or reach a different or a meaningful outcome for Mr X.

The complaint

1. Mr X complained about the Council’s decision to approve a development on land near his home.
2. Mr X says the development will overshadow his garden. He also says the stress caused by the events following the Council’s decision has made him seriously unwell. He would like the new development to be demolished.

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The Ombudsman’s role and powers

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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I read the complaint and discussed it with Mr X and his 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.
5. I gave the Council, Mr X and his representative an opportunity to comment on an earlier draft of this decision and took account of the comments I received.

Planning law and guidance

6. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. 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.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Planning officers may consider the loss of light or overbearing impact a new development is likely to have on existing buildings. They often use a rule of thumb, known as the ‘45-degree rule’. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. As well as a lateral 45-degree line, a rising angle of 25 degrees is often used, and only development above and beyond both is considered unacceptable. Some councils include this test, or versions of it, in their published Supplementary Planning Guidance, which shows how they apply policy to protect amenities.
11. Regulations set out the minimum requirements for how councils publicise planning applications.
12. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
13. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
14. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
15. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
16. We recognise that councils have discretion to depart from their policy and guidance, but they need to demonstrate they have exercised that discretion properly. We normally expect to find evidence of consideration of the key material issues in the case officer’s report, which is written to advise the decision-making body or individual.
17. We accept that delegated reports might be written differently, as their target audience is a professional planner, not a member of the planning committee. However, delegated reports still need to demonstrate the core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated.

What happened

18. Mr X lives near a site on which the owners sought planning permission to build a large extension to an existing dwelling to create a separate dwelling.
19. There are two other dwellings between Mr X’s home and the site. Mr X did not receive a notification letter for the application, as he does not share a boundary.
20. A planning case officer visited the site and assessed the plans. She wrote a report. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from consultees, including ecology, highways and drainage officers;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. The application was considered and approved by a senior planning officer using delegated powers.
22. Mr X complained to the Council about how the decision was made. Amongst other things, he was concerned that the Council had failed to take proper account of how the development will affect existing properties, including his own. He said the Council had not taken proper account of its own guidelines as it applies to the 45 degree ‘rule’ and preserving building lines with existing properties and new developments.
23. Mr X says that because of what happened, severe stress has caused him to become seriously ill.

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What I found

24. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. To justify our investigations, we need evidence that the individual complainant has suffered a significant injustice that we can remedy.
25. I do not doubt that Mr X has become seriously ill and his health may well have been affected by the stress caused by his complaint. However, I cannot say the Council’s planning decision or its responses to his subsequent complaints caused Mr X’s ill health. Only courts can decide claims of this nature.
26. In planning complaints, we can recommend a remedy where the evidence shows the outcome would have been different and the individual complainant was caused significant injustice by the direct impact a new building has on amenities such as light, privacy and overbearing impact.
27. Mr X does not live next to the site and there are two dwellings between him and it. I do not doubt that there will be some impact on his amenity, but having looked at the plans, the case officer report and aerial photos, I do not think it is likely that we could achieve a meaningful outcome for Mr X. My reasons for this are as follows:
1. The impact the development has on amenity in gardens is a planning consideration, but not one that is generally given as much weight as others, such as the need for more housing or protection of amenities in habitable rooms.
2. Mr X’s garden may well be overshadowed by the development when the sun is in the south, particularly in winter when shadows are longer. There will be no overshadowing from the development when the sun is in the west. I cannot say that, even if further consideration was given to this issue, the outcome would have been different.
3. The case officer’s report includes the key planning considerations and I can see the case officer considered the impact the development would have on residential amenities. The report is short, as delegated reports often are. It does not include every possible planning consideration, but we would not expect it to. Planning case officer reports need to be adequate, not perfect. It is important to remember the decision-maker had access to the plans as well as the report and will be familiar with relevant policy and guidance. In my view there is enough information in this report to show the Council was aware of the main issues before it made its decision.
4. Mr X would like the new building to be demolished, but we cannot require this to happen. Only the high court can quash planning decisions and applications for judicial review are subject to short time limits. Councils do have some limited powers to revoke their own approvals, but whether they do this is a matter for their own judgement and discretion.
28. For these reasons, I should not investigate this complaint further.

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Final decision

29. I ended my investigation because further investigation is unlikely to lead to a different or meaningful outcome.

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Investigator's decision on behalf of the Ombudsman