Summary: We found the Council was not at fault in reaching its planning decisions about development near Mr X’s home. However, the evidence showed avoidable delay by the Council in responding to Mr X’s complaint about the development. We found the Council’s offer to apologise and pay £150 suitably addressed the distress and frustration this delay caused Mr X.

The complaint

1. Mr X said the Council did not properly deal with development near his home because it:

• wrongly accepted and decided an out of time planning application;
• failed to properly consider the impact of the development on his home; and
• ignored a breach of planning control.

2. Mr X also complained about the Council’s delay in responding to his complaint about the development.
3. Mr X said the development directly looked into his home and garden and left him with no privacy. And what happened caused him and his family much stress and reduced the value of their home. Mr X wanted the Council to:

• accept responsibility for what happened;
• help reduce the overbearing loss of amenity to his home; and
• pay compensation.

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The Ombudsman’s role and powers

4. 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)
5. Where we find fault, we must also consider whether such 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. 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

7. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered information on the Council’s website about the development;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s comments and supporting papers with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered their responses before making a final decision.

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What I found

Background

Planning permission

8. Most development needs planning permission from the local council. An outline planning permission establishes the acceptability of development and needs the later approval of ‘reserved matters’. A reserved matter may be details of the access; appearance; landscaping; layout; and scale of the development. Whether a matter is reserved depends on what details are approved under the outline planning permission.
9. The law says a developer must apply for approval of all reserved matters within three years of the date of the outline planning permission. Most outline planning permissions include a condition about the three-year time limit.
10. The law sets out what information a developer must provide when seeking a planning approval from the council. Once satisfied it has received the necessary information, the council ‘validates’ the case.
11. The Government’s National Planning Practice Guidance (PPG) says councils should satisfy themselves an application accurately describes the proposed development. But councils should not change a description before talking to the developer. However, dealing with the accuracy of the description should not delay validation. The PPG also says councils should quickly discuss with developers any concerns they may have about the validity of an application. Councils should also give clear advice about what developers need to do to address those concerns.
12. Councils must publicise planning applications so people may comment on development proposals. Reserved matters applications are not ‘planning applications’, so councils do not need to publicise them.
13. Both councils and developers may seek to change proposals, for example, to overcome a planning objection. Councils may publicise such changes and give people a further opportunity to comment.
14. Councils must decide proposals in line with development plan policies unless material considerations indicate otherwise. However, planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities. Material considerations concern the use and development of land in the public interest, for example, traffic generation and overlooking. Peoples’ comments about land use and planning are material considerations. Councils must consider such comments, but they do not have to agree with them. Private concerns, for example a developer’s behaviour and changes to property prices, are not material planning considerations.
15. Most councils prepare reports on planning proposals. Council planning officers will draft the reports and an officer will usually have visited the development site. The report will summarise the proposals and third-party comments. The report will also refer to relevant planning policies and identify the main planning issues for consideration in deciding whether to approve the proposals. The report will set out the officer/s views on the main issues and usually end with a recommendation to either approve or reject the proposals. Councils will usually approve proposals if they consider the development is in line with planning policy and they find no planning reason of sufficient weight to justify a refusal.
16. Councillors on a council’s planning committee consider some planning officer reports. But a senior council officer(s), holding formal authority to decide cases for their council, will consider most reports. It is for the decision maker to determine the weight given to any material planning issues in deciding whether to approve any proposals. This means councillors at committee and senior officer(s) may disagree with a report recommendation.

Planning enforcement

17. If development takes place without the necessary planning permission there will be a breach of planning control. A failure to comply with a planning permission and its conditions is also a breach. Planning enforcement is largely reactive, that is, it depends on people reporting possible breaches to their council. Councils must investigate reported breaches and may, but do not have to, take enforcement action. The Government’s National Planning Policy Framework (NPPF) says councils should act proportionately in responding to suspected breaches.
18. The Council’s 2016 Local Enforcement Plan (‘the Plan’) refers to the NPPF and sets out how it will respond to reported breaches. For example, the Council aims to make an enforcement site visit within 14 days. The Council will then decide if the development needs planning permission and, if so, what its next step should be. The Council may, for example, take no further action, invite an application for the unauthorised development, or take formal enforcement action. The Council ranks enforcement reports as ‘high, medium and low’ and will investigate cases in priority order “as soon as possible”.

The Council’s complaints procedure

19. The Council has a two-stage complaint procedure. At stage 1, the relevant Council service manager should respond to a complaint within 20 working days. At stage 2, a senior Council manager should review the complaint and respond within a further 20 working days.

What happened

20. The Council granted outline planning permission for development near Mr X’s home, including a new access to the site. The permission listed the reserved matters as the appearance, landscaping, layout, and scale of the development. A condition on the permission gave the developer three years to apply for approval of the four reserved matters.
21. The Council received, and validated, a reserved matters application within three years of the outline permission (‘the Application’). The Application included details of the four reserved matters and for an access to the development site. The Council publicised the Application to give people an opportunity to comment on the reserved matters.
22. Mr X’s solicitor wrote to the Council. The solicitor said Mr X and other residents did not consider the Council was taking their concerns about the development “with the gravity they deserve”. The main issues in the solicitor’s letter concerned the:

• legality of including access details in the Application when access was not a reserved matter;
• reserved matter proposals not complying with Council planning policies;
• impact of the reserved matters proposals on existing residents’ amenities and the wider countryside; and
• Council’s procedures that prevented people commenting on officer reports at the Planning Committee.

23. The Council asked the developer to remove references to an access from the Application. The developer agreed the change. The Council then asked for, and the developer agreed to, changes to reserved matter proposals in the Application. The Council publicised the changes.
24. Mr X contacted the Council about speaking at its Planning Committee when councillors considered the Application. Mr X also referred to his solicitor’s letter. In reply the Council said Mr X had a right to speak and gave the likely meeting date but said it would contact Mr X nearer the time. The Council also said it did not reply to comments on planning applications, like the solicitor’s letter, and its published information made this clear. The Council confirmed it had received the Application within three years of the grant of outline planning permission. And it could decide the Application with the wrongly included access details removed.
25. Later emails showed Mr X had notice of the date the Council published its Planning Committee report about the Application. The Council also wrote to Mr X to confirm the date and time of the committee meeting and how to access the report on the Application. The Council’s letter also explained that, when speaking at committee, people could address points already made but could not raise new issues.
26. The Council’s report on the Application referred to relevant planning policies. It also summarised peoples’ comments on the proposals. These comments included the proposals not complying with planning policies; and impacts on existing homes and the countryside. The report also explained the removal of access details from the Application as access was not a reserved matter. The report considered each of the reserved matters and took account of sloping ground levels. The report also said changes to the original proposals had affected the proximity and relationship of new to existing buildings by:

• proposing only two-storey new buildings next to the shared boundary;
• setting back new buildings by a further two to four metres from the shared boundary;
• reducing windows in new buildings that faced the shared boundary to lessen any perceived overlooking; and
• providing a landscape buffer along the shared boundary.

The report highlighted the developer had not surveyed existing homes and so drawings that showed the relationship of new and existing buildings were “indicative”. However, the report said the proposals would not conflict with local planning policy OSS4 (‘the Policy’) that said development should not unreasonably harm neighbouring amenities.

27. Mr X attended and spoke at the Planning Committee meeting. The Planning Committee approved the Application, and the Council issued a formal decision notice for the proposals.
28. Meanwhile, the developer made further planning applications for development on the site. The Council validated, publicised, assessed and later granted planning permission for these applications. The developer had also contacted residents, including Mr X, with details of planting proposals for the landscape buffer. (The residents later told the developer which proposal they preferred.)
29. Construction work started on the site, including of new buildings near Mr X’s home. Mr X raised concerns about dust, working hours, and heavy machinery near tree roots. When the developer and the Council failed to resolve his concerns, Mr X made a formal complaint to the Council. The main issues raised in Mr X’s complaint were:

• the Application was not lawful, and the Council allowed its resubmission more than three years after it granted outline planning permission;
• the Council failed to protect his amenities and approved development, without visiting his home, that caused an overbearing loss of privacy; and
• the landscape planting was unacceptable as it would take years to mature and provide privacy.

30. Seven weeks later, Mr X wrote to the Council asking for its view on the impact of buildings with separation distances that differed by 0.9 metres. After a further three weeks, Mr X formally reported breaches of planning control on the site to the Council. Mr X said a new building was 0.9 metres closer to his home than shown on an Application plan. Mr X also said the developer was not complying with planning conditions aimed at protecting existing trees and controlling working hours.
31. The Council acknowledged Mr X’s enforcement report and gave him information about planning enforcement. Mr X replied saying the breaches of planning conditions had been resolved but the distance issue remained. The Council suspended its enforcement investigation into the reported breaches of planning conditions. The Council’s officers then visited the development and Mr X’s home.
32. During the visit, the Council and Mr X discussed the landscape buffer. The Council then contacted the developer about planting the buffer. Two weeks after the visit, the Council told Mr X the developer had sought formal planning approval for the planting residents had selected as their preferred landscape scheme (see paragraph 28). The Council said it did not consider it had any planning grounds to refuse the scheme.
33. In reply, Mr X told the Council the developer had not engaged with residents about a landscape scheme. He said the developer told residents they had to select a scheme from those it offered. Mr X said none of the developer’s schemes provided effective short-term screening for existing homes, but residents believed they had little choice but to accept one.
34. After contacting the developer, the Council wrote to Mr X with a proposal that included more mature planting in the landscape scheme. The Council again said it did not consider there were planning reasons to refuse the scheme and asked for any further comments from Mr X “within the next few days”. In response, Mr X said it was 128 days since he had complained and 49 days since the officers’ enforcement visit. The Council now “offered a couple of days” for a response. Mr X said the Council was failing to provide any privacy for his home or take his concerns seriously. Mr X also told the Council he had complained to the Ombudsman.
35. The Council replied to Mr X’s complaint. The Council apologised for the ‘substantial and significant delay’ in its response and said it had explained why it did not consider the Application invalid (see paragraph 24). Mr X and his solicitor had not challenged its explanation.
36. The Council also accepted its officers and councillors had not viewed the Application site from the first floor of Mr X’s home. But officers and councillors had viewed the site from the ground floor and garden of Mr X’s home before deciding the Application. The Council also pointed to its report on the Application to show it had properly assessed the proposals, as amended, including their impact on existing homes. The Council said the distance Mr X gave as between his home and the nearest new building was greater than the “general planning guide” of 20 metres. The Council said the 0.9 metre difference between the Mr X’s measurement and that ‘indicated’ on the Application plan was not “significant”. The Council confirmed it did not consider the 0.9 metre difference meant the development was not in line with the approved plans. It would not therefore take enforcement action.
37. The Council said the developer’s landscape scheme remained under consideration. And, while it understood Mr X found the proposals inadequate, it would approve them if it found them suitable for a landscape buffer. (The Council later approved the developer’s landscaping scheme.)

Consideration

Introduction

38. Most peoples’ homes and the place they live are important to them. Mr X’s home had backed onto open countryside with the associated privacy and open green views that provided. Development of the open land inevitably led to significant changes for Mr X’s home and outlook. The strength and depth of Mr X’s concern about the Council’s handling of the Application was therefore understandable.
39. My role was to consider whether the Council acted with fault in its planning decision making. Without evidence of fault, I could not question the Council’s planning decisions however strongly Mr X disagreed with them. In considering fault, I did not find it necessary to, and this statement does not, address every point raised in Mr X’s correspondence with the Council. I focussed on the three key issues raised in Mr X’s complaint to the Ombudsman, and how the Council had dealt with that complaint (see paragraphs 1 and 2).

The Application

40. Mr X (and his solicitor) held different views to the Council about the validity of the Application. The evidence showed the Council received and validated the Application within three years of the date of the outline planning permission for the site. The letter written by Mr X’s solicitor challenged the access details in the Application when access was not a reserved matter. Developers can change their planning applications (see paragraph 13). The evidence showed this happened with the Application. The developer did not withdraw the Application. Rather, removing the access details, which, as Mr X’s solicitor pointed out, were not a reserved matter, reduced the scope and extent of the Application. The removal of access details from the Application, meant it concerned only the four reserved matters. And it was the Application, without the access details, the Council then approved. So, while only the courts, not the Ombudsman, can determine disputed legal points, I did not find the Council at fault in deciding the Application after removal of the access details.
41. In reaching my view, I considered what Mr X said about the developer’s further planning applications (see paragraph 28). The developer made these applications more than three years after the Council granted outline planning permission. And yet, these applications did not seek approval of reserved matters. And it is applications for reserved matter approval that must meet the three-year time limit. These later planning applications sought to change and add to the approved development. The law allows developers to seek ‘minor material’ changes to an approved development. Developers may also apply for planning permission for additional development. The evidence showed this is what the developer did in making further applications more than three years after the grant of outline planning permission. I did not therefore find the Council at fault because it validated and decided these later applications.

The impact of the development on Mr X’s home

42. Mr X’s descriptions of the impact of the development on his home included going from “100 privacy to zero” and that it “totally destroyed any residential amenity”. Mr X said the Council had not listened to his concerns before it granted planning permission and its planning decision failed to protect his amenities. The Council said it assessed the impact of the development on Mr X’s home and amenities and reached professional and fair conclusions to find that impact acceptable. Mr X and the Council are entitled to their respective views. I do not hold any view on the matter but must consider if there is evidence of fault in how the Council reached its view. So, how did the Council consider the impact on Mr X’s home?
43. Councils do not need to visit a development site when dealing with a reserved matter application. And yet, in practice, many councils include a planning officer site visit when assessing planning proposals. And some councils arrange site visits for members of their planning committee if councillors will decide an application. However, visits, whether by officers or councillors, to land outside development site boundaries are rare.
44. Here, the Council’s evidence showed a site visit by a planning case officer while the Application was under consideration. The evidence also showed members of the Council’s planning committee visited both the site and Mr X’s property before their committee meeting. Mr X also wanted the Council to view the development site from the first floor of his home but said it refused to do so. I therefore recognise the visits were not as extensive as Mr X wanted. And yet, visits took place. And the visits made by officers and councillors were sufficient for them to understand the relationship between the development site and Mr X’s home. I did not therefore have grounds on which I might properly base a finding of fault on this point.
45. The Council’s planning officers also prepared a report for the planning committee that assessed the Application (see paragraph 26). The report identified ‘residential amenity’ as a main planning issue in deciding the Application. In assessing residential amenity, the report referred to the many objections made about the impact of the development on existing residents. The report said changes to the reserved matter had improved the relationship between existing and new buildings (see bullet points at paragraph 26). The report assessed the changed proposals as not causing unreasonable harm to existing residential amenities and found no conflict with the Policy. The Council’s report on the Application therefore provided further evidence the Council had considered its impact on Mr X’s and other peoples’ homes. Overall, the Council’s report on the Application contained suitable and proportionate information and analysis of the, changed, reserved matter details. So, there were no grounds to find fault here by the Council.
46. Having properly and reasonably identified and considered the planning impact of the Application, the Council was entitled to reach its own view on whether that impact was acceptable on planning grounds. Unfortunately for Mr X, the Council found the Application, as changed, acceptable. I recognise Mr X disagrees. And yet, that difference of view is not a matter I could question without evidence of fault by the Council in how it processed the Application (see paragraph 4).

The breach of planning control

47. The unresolved breach reported by Mr X concerned the new building nearest his home (see paragraphs 30 and 31). Mr X told the Council this building breached planning control as it was 0.9 metres closer to his home than shown on an Application plan.
48. The relevant Application plan stated distances shown were ‘approximate’ and the Council’s report to the planning committee described the distances as ‘indicative’. The Council’s report showed it correctly understood the plan distances were not definitive.
49. The Council did not dispute the distance as measured by Mr X between his home and the new building. So, the agreed position was the new building was 0.9 metres closer to Mr X’s home than ‘approximately indicated’ on an Application plan. Mr X found the 0.9 metre difference significant: The Council did not.
50. I had no role in deciding whether a breach of planning control existed or if a council should take planning enforcement action. Here, the Council’s letter to Mr X (see paragraph 36) provided evidence it had acted correctly in considering the reported breach. The letter also gave the Council’s planning reasons for not taking enforcement action. So, while Mr X might disagree with the Council’s enforcement decision, I found no grounds to suggest it was taken with fault.
51. It took the Council nearly four months to tell Mr X it would not take planning enforcement action. And yet, it often takes significant time to investigate reported breaches of planning control. Here, the Plan gave ‘as soon as possible’ as the Council’s time target for high, medium, and low priority enforcement investigations (see paragraph 18). That a council might have acted differently or sooner than it did does not necessarily mean it fell below acceptable administrative standards. Having considered the evidence, on balance, I did not find the Council at fault in the time it took here to tell Mr X of its enforcement decision.

Complaints handling

52. It took the Council nearly six months to respond to Mr X’s complaint. The Council accepted the time taken was unsatisfactory. I agreed. The Council clearly failed to meet its time target of 20 working days to reply a complaint (see paragraph 19). The Council explained it faced work pressures and staff vacancies that delayed consideration of planning complaints. And yet, I saw no evidence the Council told Mr X about the difficulties it faced and let him know it could not meet it published response times and would need more time. I therefore found the Council’s delay and lack of contact would likely cause Mr X unnecessary distress and frustration. However, the Council confirmed it was reviewing how it handled complaints about planning matters.

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Agreed action

53. I identified fault by the Council in its complaints handling that was likely to have caused Mr X injustice (see paragraph 52). To put matters right in a suitable, reasonable, and proportionate manner, the Council agreed:

• (within 10 working days of this statement) to send Mr X a written apology for the avoidable distress and frustration caused by delay in its complaints handling; and
• (within 30 working days of this statement) to pay Mr X £150 in recognition of the avoidable distress and frustration caused by the delay.

54. As the Council had started a review into its handling of planning complaints, I made no recommendation for service improvements. However, the Council agreed to send us details of the completed review and its outcome. The Council also agreed to send us evidence of its compliance with the two recommendations at paragraph 53 within 10 working days of taking each action.

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Final decision

55. I found that, while there was no fault in the Council’s planning decision making, its complaint handling fell below acceptable standards. I therefore completed my investigation when the Council agreed the recommendations set out at paragraphs 53 and 54.

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Investigator's decision on behalf of the Ombudsman