Summary: Mr X complained the Council approved a development opposite his home that affects his privacy. The complaint was brought to us outside our 12-month time limit for investigations and there is no good reason to investigate it now.

The complaint

1. Mr X complained the Council approved a planning application for a development that will affect his privacy. Mr X would like the Council to provide extra screening or compensation for the impact the development will have on the value of his home.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I read the complaint and discussed it with Mr 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 reports. I discussed the plans with the case officer.
5. I gave the Council and Mr 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

Planning law and guidance

6. Councils should approve planning applications that accord with policies in 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 enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
11. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
12. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
13. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown on a plan.

What happened

15. In 2017, the Council approved a planning application for a development on land opposite Mr X’s home. The approval was subject to planning conditions. On the nearest part of the site to Mr X is an accommodation block, which is over 60 metres from his home. Directly opposite him is a non-residential building that is mainly used during the day. This building is two storeys high with an atrium in the roof giving light to the floors below. It is over 40 metres from this building to Mr X’s home.
16. In 2019, the Council approved an application to vary planning conditions for matters that do not directly affect Mr X, including the type of construction materials used and the layout of the grounds.
17. When construction began, Mr X complained the building nearest him was closer than was shown on approved plans. The Council’s planning officers visited the site and found there was no breach of planning control, as the building was in the correct location.
18. Mr X complained to the Ombudsman.

My findings

19. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12 months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
20. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
21. The decision to approve the application was made nearly two years before Mr X brought it to our attention. He could have complained to us sooner, but in any event, I do not consider that further investigation is likely to reach a meaningful outcome. This is because the separation distances between Mr X and the new buildings are well beyond the minimum distances councils normally require to protect privacy and other amenities for neighbours. Even if we were able to investigate and did find fault, it is unlikely we would be able to say the outcome would have been any different.

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Final decision

22. I completed my investigation, as the complaint came to us late and there was no good reason to exercise my discretion to investigate it.

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Investigator's decision on behalf of the Ombudsman