Summary: Mr X complains about the way the Council handled a planning application on a site to the rear of his house. He said this resulted in the development being built too close to his boundary and resulted in a loss of privacy for him and his family. The Council followed correct planning procedure in line with national legislation and its own policies. We have completed our investigation and have found no fault with the Council’s action.

The complaint

1. Mr X complained the Council:
• did not properly consult on planning applications on a site to the rear of his house; and
• used the wrong measurements resulting in the development being too close to his house.

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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. 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

4. I have considered Mr X’s complaint and have spoken to him and his wife about it.
5. I have also considered the Council’s response to Mr X and to my enquiries.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Law

Planning enforcement

7. Planning enforcement is discretionary, and councils should only take formal action when it would be a proportionate response to the breach. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
8. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue.

Statement of Community Involvement (SCI) and Code of Practice for Publicity and Consultation for All Planning Applications

9. These Council documents set out how the public, and specifically adjoining neighbours should be consulted on planning applications. This includes the erection of site notices or sending a letter directly. The SCI states the Council notifies all adjoining neighbours by letter to minimise the risk that those affected might not see the notice.
10. The Council says the Code of Practice will help define where wider neighbour notification applies.
11. The SCI states that planning applications can be amended several times during their course. It goes on to say that where the Council considers an amendment will worsen the situation, it will carry out a further round of consultation.

What happened

Planning application

12. In 2016, developers submitted an application to build 10 houses (later reduced to 6) on a site to the rear of Mr X’s house. The Council consulted the neighbours in line with its Statement of Community Involvement. This included neighbour notification letters to Mr X and other neighbours of the site. The Council erected a site notice and posted a notification in the paper. The Council received 43 representations and a petition in opposition to the proposal.
13. In November 2016, the Council approved the planning application, subject to conditions. The conditions included obscure glazing on some of the proposed dwellings to protect the privacy of the neighbours, and planting and landscaping for wildlife.

Removal of conditions

14. In 2018, the developer submitted an application to reposition the houses and to remove the requirement for privacy screening in the form of obscure glazing. It also included the erection of a high fence around the development.
15. Mr X objected to the application on the grounds that the repositioned houses would be closer to his boundary and the badger run and included large windows overlooking his home. The officer’s report said the application meant the property was 1.5m closer to the south (Mr X’s boundary) and there will be several main habitable rooms (cannot use obscure glazing) on this elevation.
16. Mr X said the developer started building before receiving planning permission. This is reinforced by the officer’s report which stated the applicant had commenced work as the layout is virtually the same footprint as the previously approved scheme.
17. The officer said the overall distance between the development and Mr X’s house was significantly more than the 21 metre separation distance, and the trees, bushes and additional fencing would further mitigate against the risk of loss of privacy/overlooking. It also said although the development would be closer to the badger run, there was still adequate space.
18. In May 2019, the Council conditionally approved the planning application.

Planning enforcement

19. In May 2019, Mr X reported to the Council that he believed the development had been built in the wrong position. Within a month, planning enforcement officers visited the site and acknowledged there were some differences between the approved measurements and those built.
20. In August 2019, the developer submitted another application. This was, in part, in response to the enforcement investigation carried out by the Council.
21. Mr X and others objected to the retrospective application, again citing the issue of overlooking and the reduced distance between the development and their properties. Mr X requested the fence be increased to 3m.
22. The Council discussed various options with the developer. This was to minimise the actual and perceived overlooking of neighbouring properties. I have seen an email exchange which demonstrates the Council negotiated a higher fence, some solid panels instead of glazing, and also confirmed the latest plans reflected the buildings of the ground.
23. The officer’s report stated the development was still acceptable in principle and the Council would only consider the alterations to the approved drawings and the requirement for obscure glazing. The Council approved the application in April 2020.

Mr X’s complaint

24. When Mr X complained to the Ombudsman in January 2020, he complained that although the Council had accepted the measurements were wrong, it was not taking enforcement action against the developer.

My findings

25. From the evidence I have seen, the Council acknowledged that the development was not built in accordance with the approved plans. Officers visited the site to investigate whether enforcement action was needed. In response to this, the developers submitted a retrospective planning application for the built measurements.
26. The Council worked with the developers to amend the design of the homes facing Mr X’s house to minimise the level of perceived intrusion.
27. When Mr X complained to the Council that the approved fence had not been erected, the Council chased the developer who began work on it a month later.
28. From the evidence I have seen, it is the developer who was responsible for various delays and breaches of planning. The Council reacted to Mr X’s complaint in line with its complaint procedure. Mr X complained this took 6 months, during which time, the Council negotiated with the developer and kept Mr X informed. The Council took this approach rather than to take formal enforcement action. This is in line with national legislation and I do not therefore find the Council at fault.
29. I can understand Mr X’s frustration at the proximity of the houses built on the land behind his home. However, the Council followed correct procedure when consulting on the various applications and followed up complaints about the positioning of the dwellings. This resulted in a retrospective application which was subsequently approved. The Council negotiated with the developer to achieve the best possible outcome and a high fence is now in situ.

Final decision

30. I have completed my investigation. I have found no fault with the Council in terms of its public consultation process, nor its decision not to take formal enforcement action.

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Investigator's decision on behalf of the Ombudsman