Welwyn Hatfield Borough Council (19 016 660)

Category : Planning > Planning applications

Decision : Closed after initial enquiries

Decision date : 31 Mar 2020

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s decision to approve his neighbours’ planning application. The Ombudsman does not intend to investigate this complaint as it is late. And an investigation is unlikely to lead to a different outcome.

The complaint

  1. Mr X complains the Council may have allowed the submission of and subsequently approved, a potentially unlawful planning application for living bamboo planters to be added to his neighbour’s patio area in order to overturn a privacy condition in an earlier planning application. He says the Council has:
    • failed to permanently protect his property from overlooking
    • failed to communicate transparently and in a timely manner
    • misrepresented and omitted important information

He wants the Council held to account and confirmation that the approved planning application is lawful.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 could add to any previous investigation by the Council
  • it is unlikely further investigation will lead to a different outcome

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

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How I considered this complaint

  1. I considered:
    • The information provided by Mr X and discussed his concerns with him.
    • The information provided by the Council
    • Information on the planning pages of the Council’s website
    • The Town and Country planning Act 1990

I also considered Mr X’s comments on the draft version of this decision.

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What I found

  1. Planning controls the design, location and appearance of development and its impact on public amenity. Planning controls are not designed to protect private rights or interests. The Council may grant planning permission with conditions to control the use or development of land.
  2. Local Planning Authorities must consider each application it receives on its own merits and decide it in line with their local planning policies, unless material considerations suggest otherwise. Material considerations concern the use and development of land in the public interest and include issues such as overlooking, traffic generation and noise. People’s comments on planning and land use issues linked to development proposals will be material considerations. Councils must take such comments into account but do not have to agree with those comments.
  3. The National Planning Policy Framework (NPPF) is a material consideration in deciding planning applications. It sets out a “presumption in favour of sustainable development”. The NPPF says this presumption means, when there are no relevant development plan policies or those policies are out of date, planning permission should be granted. This is unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits.
  4. A council planning officer will normally visit the application site and write a report assessing the proposed development. The report will refer to relevant planning policies and the planning history of the site; summarise peoples’ comments; and consider the main planning issues for deciding the application. The assessment often involves the planning officer in balancing and weighing the planning issues and judging the merits of the proposed development. The report usually ends with a recommendation to grant or refuse planning permission.
  5. A senior planning officer will consider most reports, but some go to the council’s planning committee for councillors to decide the application. The senior officer (or councillors at committee) may disagree with the case officer’s recommendation because it is for the decision maker to decide the weight given to any material consideration when deciding a planning application. Development usually gets planning permission if the council considers it is in line with planning policy and finds no planning reason(s) of enough weight to justify a refusal.
  6. Mr X’s neighbour applied for planning permission to:
    • build a single storey rear extension
    • build bamboo planters to provide screening
    • build a rear deck/patio area with retaining wall and steps
  7. The Council publicised the application. Mr X made the following objections:
    • The bamboo barrier will not overcome his loss of privacy
    • The Council will not be able to enforce the maintenance of the bamboo planters
    • The bamboo barrier may not meet planning application criteria
    • The bamboo barrier will be unduly dominant and cause loss of light and overshadowing
    • The use of non-native invasive plants will not complement and reflect the design and character of the original property
    • Overlooking and loss of privacy to his home and garden
    • Two previous extensions affecting the west facing rear wall were not permitted to have windows or doors
    • The Council should enforce controlled hours of operation during construction
  8. The case officer prepared a report on the scheme. This summarised Mr X’s objections. It also noted there was no comment from the local garden trust.
  9. The report refers to a previous planning permission granted for the development. This placed a condition on the permission requiring sliding bifold doors in the wall facing Mr X’s home to be obscure glazed and non-opening to protect Mr X’s privacy.
  10. The applicant submitted the new application which included bamboo planters to overcome the need for the condition on the doors.
  11. The case officer noted the applicant and Mr X’s gardens are on different levels. The garden area nearest the houses are at lower levels than those towards the end of the gardens. The boundary fence between the properties is stepped to reflect the changing levels. There is trellis on top of parts of the fence for plants. Mr X has also converted part of his garage to a habitable room which has full-length doors facing the neighbour’s existing rear extension.
  12. The officer goes on to say the Council considered the mitigation proposed to ensure the application will not have a significant impact on the privacy of Mr X’s home. The proposed bamboo planters would be about 2.3 metres high and be located on the boundary between the properties. This is similar to the existing fence. The officer considered the planters will break up the line of sight between Mr X’s home and the proposed extension.
  13. The report fully considered Mr X’s objections. It gave careful thought to the issue of privacy and overlooking. The officer recommended approval with the following conditions:
    • the bamboo planters shown on the approved plans must be installed before the extension is used
    • the bamboo plants must be maintained to a height of 2.3 metres and must be replaced if they die.
    • the planters and the bamboo must remain in position unless otherwise agreed by the local planning authority
  14. A senior officer agreed with the recommendation and the application was approved in October 2018 under the Council’s scheme of delegated authority.
  15. Mr X contacted the Council about the decision. The Council responded to his concerns. Its final response dated November 2018 advised him of his right to ask the Ombudsman to consider his complaint if he was not satisfied with the its response.

Assessment

  1. The law says a complaint must be made to the Ombudsman within 12 months from the day the person complaining became aware of the matter. But we have discretion to investigate if we consider there is good reason to do so. Mr X was aware the planning permission was granted in October 2018 but did not complain to the Ombudsman until January 2020. His complaint is therefore late.
  2. I must consider whether there is a good reason to exercise discretion. Mr X was aware of the planning application and made objections to the Council. He understood planning permission had been given and was advised of his right to complain to the Ombudsman. Mr X says his contact with the Council was confusing and he was too distressed to take the matter further at the time. He did not do so until 15 months after the planning permission was granted.
  3. I have not seen any fault in the way the Council made its decision. The case officer’s report shows the Council considered the application thoroughly. Mr X could object, and his objections were considered by the Council. The report goes into detail about the impact of the proposal on Mr X’s home and the measures taken to mitigate this.
  4. I understand Mr X wants confirmation on whether the condition for bamboo planters is lawful or not. The Ombudsman is not an appeal body, nor to we adjudicate of disputed points of law. Our role is to consider complaints about fault causing significant personal injustice to the complainant. The matters Mr X is concerned about were fully considered. I understand Mr X does not like the decision to grant permission, but I cannot say there is evidence of fault in the way the decision was made.
  5. As we are unlikely to find fault and further investigation is unlikely to lead to a different outcome, I do not consider there is a good decision to exercise discretion and investigate this late complaint.

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Final decision

  1. I will not investigate this complaint as it is late. I have not seen evidence of fault in how the Council made its decision and further investigation is unlikely to lead to a different outcome. Therefore, there is no reason to exercise discretion in this case.

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Investigator's decision on behalf of the Ombudsman

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