Summary: Mr X complained about the Council’s decision to approve his neighbour’s planning application. Mr X’s home is a significant distance from the new home. We did not investigate further because Mr X was not caused a significant injustice and we are unlikely to find fault in the way the decision was made.

The complaint

1. Mr X complained the Council approved a planning application on land next to his home, but:
• it did not insist it kept to the same building line as his and other houses, though had done so elsewhere;
• it did not allow enough amenity space around the new building;
• it did not put up a site notice, though had done so on other sites nearby;
• the plans do not include confirmation that the plot’s access to the highway will be safe;
• the case officer wrote that privacy and amenity are not significantly harmed and maintained, but this cannot be true;
• a mature tree was removed, but there was no reference to this in the case officer’s report; and
• there may be a restrictive covenant that might be in breach.
2. Mr X says the new development will cause loss of light on his home. He would like the Council to revoke its planning permission.

Back to top

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)

Back to top

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 report.
5. I gave the Council and Mr X an opportunity to comment on an earlier draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

Publicity of planning applications

6. Regulations set out the minimum requirements for how councils publicise planning applications.
7. 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.
8. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
9. 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.

Planning application decisions

10. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. 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.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the Council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
15. However, the courts have made it clear that:
• Case officer reports do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• Case officer reports do not need to include every possible planning consideration, but just the principle controversial issues.

Space around dwellings

16. 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.
17. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
18. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
19. 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 in a plan.
20. 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. They will often consider any development beyond 45 degrees as likely to be unacceptable. Some councils include this test, or versions of it, in their published SPD, which shows how they apply policy to protect amenities.

Tree Preservation Orders

21. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
22. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.

What happened

23. Mr X’s neighbours had land at the side of their home. They submitted a planning application to build a house on the land. Before the application was made, a large mature tree was removed from the site.
24. The Council publicised the application by sending neighbour notification letters to nearby residents. The Council’s SCI in force at the time said it normally publicises applications by sending letters to neighbours, unless they cannot easily be identified, in which case it would also put up a site notice near the site.
25. The Council’s planning case officer visited the site and wrote a report. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on the area, on neighbouring amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.

My findings

26. Before we investigate complaints, we must be able to identify a significant injustice caused to the individual complainant by the Council’s actions.
27. The side of Mr X’s home is more than 15 metres to the side elevation of the new house. The new house is set slightly forward from the front of Mr X’s home, but the 45-degree line is not breached.
28. I will comment on Mr X’s complaints below, but I do not find evidence that he is caused a significant injustice by the Council’s decision to approve the new house. The design of the new house and its relationship with existing properties are typical of many residential areas.
29. In any event, I think it unlikely that further investigation would result in a finding of fault. My reasons for saying this are as follows:
• Mr X believes the decision was inconsistent with other applications decided nearby. The Council did consider the impact the development would have on its area and neighbouring properties. We are not an appeal body to judgements that are made, providing they are made without procedural fault. From the evidence I have seen, the Council followed the procedure we would expect.
• The decision about how much amenity space was necessary for the new building, is a matter for the Council to decide. It was aware of the plans and it considered the issue before it made its decision.
• Mr X says that, in places, the case officer’s report did not make sense. We do not expect reports to be perfect, as they are written to inform the parties to the decision (the Council and applicant) who are already aware of the issues. We will only criticise a council if the decision maker was clearly misled, that but for this the outcome would have been different and as a result the complainant was caused a significant injustice.
• The Highway Authority had no concerns about highway safety and did not object. The Council considered the issue before it made its decision and it followed the process we would expect.
• The tree that was cut down was not protected by a TPO and so the Council had no power to stop its removal.
• Restrictive Covenants are private matters. Councils cannot give any weight to them when making their planning decisions.
• Only the High Court can quash planning decisions. Councils have limited power to revoke their own decisions, but whether to do so is a matter for the Council to decide.

Back to top

Final decision

30. I have ended my investigation because I have no evidence of a significant injustice to Mr X.

Back to top

Investigator's decision on behalf of the Ombudsman