Summary: The complainants say the Council failed to follow the correct process when it granted planning permission for their neighbour’s extension. We will not investigate this complaint as we are unlikely to find fault in the Council’s actions. Nor is it likely that further investigation will lead to a different outcome.

The complaint

1. The complainants, who I shall refer to as Mr X, Ms Y & Mrs Z make the following complaints:
• the Council failed to follow the correct process when it decided to grant planning permission for a neighbour’s extension.
• provided them with a poor service during their involvement with the planning service; and
• published photos taken from inside their former home without their permission; and
• failed to follow its complaints procedure.
2. They say the way the Council acted and the decisions it made put them in an untenable position. It caused them to seek medication and gave them no option but to sell their homes.
3. They want the Council to:
• admit it made the wrong decision
• admit there were flaws in the planning process
• admit the complaints procedure is unclear
• remove photos from its website; and
• make changes to the planning process and complaints procedure.

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The Ombudsman’s role and powers

4. 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
• the injustice is not significant enough to justify our involvement
• 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)

5. 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)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered:
• the information provided by Mr X, Ms Y & Mrs Z and discussed the complaint with Ms Y
• copies of their complaints to the Council and its responses
• further information provided by the Council about their investigation of the complaints
• the planning application information on the Council’s website
• the relevant national and Council planning and complaints processes; and
• comments from the complainants on the draft version of this decision

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What I found

8. The Town and Country Planning Act 1990 sets out the general power to control development and use of land. Development or change of use of land requires permission which may be granted by a Local Planning Authority (LPA). Or it may deem development to be permitted, if it falls within the limits set out in Permitted Development regulations.
9. 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.
10. 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.
11. Councils have a statutory duty to publicise applications and to consider representations (either for or against the application) which people make. But that is not the same thing as consulting with the public.

What happened

12. The Council received a planning application from Mr X, Ms Y & Mrs Z’s neighbour. It was a part retrospective application for a ground floor rear extension with flat roof and a parapet wall.
13. The Council put details of the application on its website and wrote to 12 neighbours nearest the site.
14. Serval neighbours, including Mr X & Ms Y, objected to the scheme on the following grounds:
• loss of privacy from using the flat roof as a terrace or balcony
• the plans do not match the building
• the development is out of keeping with the area because of its size
• potential for loss of light and overshadowing
15. The Case Officer visited the site and prepared a report on the scheme. The report includes the planning history of the site. And states:

“It is acknowledged the host dwelling has been significantly extended over the years.”

And

“It is not disputed that the existing dwelling has been heavily extended, the proposed extension must be viewed in context.”

16. After noting the relevant policy and the possible impact of the proposed scheme, the case officer recommended the application for approval. He included a condition to prevent the owner using the flat roof of the extension as a balcony or terrace to protect the neighbour’s privacy.
17. The Council’s Planning Committee considered the case officer report. A local councillor addressed the Committee, detailing the neighbour’s objections to the scheme.
18. Having considered the report, the objections and debated the scheme the Committee agreed with the Case Officer recommendation and approved the application.
19. Mr X & Mrs Y complained to the Council. They said the Council was in effect, leaving it to neighbours to check the applicant was not using the flat roof extension as a terrace.
20. Further complaints were made to the Council about construction noise and bonfires at the site. Mr X also complained to the Council that the owner of the property verbally abused Mrs Y.

Assessment

21. The complainants state their complaint is about the Council’s handling of the planning application and the enforcement of the condition attached to the planning permission to protect their privacy.
22. My assessment cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
23. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is needed for any development or change of use of land and may be granted by a Local Planning Authority.
24. As part of the consultation process for non-major development, the law says the Council must display site notices or send letters to neighbours. It must also show the application on its website.
25. The Council says it erected a site notice and wrote to neighbours told neighbours about the application. It provided contact details for the case officer and planning reception service. It also confirmed access to plans was available at local libraries by those who do not have access to the internet. This complies with the statutory requirements for publicising planning applications and I have not seen any evidence of fault.
26. The case officer’s report includes:
• a detailed planning history of the site; and
• the objections from neighbours and ward councillors
27. It also provides a detailed assessment of the plans and the impact of the proposals on neighbours’ residential amenity. It also details the relevant local policies and explains why the officer considers the development scheme meets policy requirements. The case officer then recommends approval with a condition preventing the use of the flat roof as a terrace.
28. The complainants say the submitted plans were not clear and to make informed decisions the plans must be accurate.
29. The Council has confirmed the plans were checked and are correct. The case officer visited the site. The planning committee was shown aerial images of the site and informed of the objections received. The planning committee considered it had enough information to make an informed decision.
30. I understand the complainants disagrees with the Council’s views. But I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so including the objections it had received. I have seen no evidence of fault in the way the Council reached its decision to grant conditional planning permission for the development.
31. The complainants say the Council forced them to ‘police’ the condition forbidding use of the flat roof for recreational purposes. I do not agree. When a Local Planning Authority (in this case the Council) considers an application is acceptable save for a particular concern such as loss of privacy, it may place a condition on the planning permission to prevent the loss of privacy but enable the development to take place.
32. In this case, the Council decided the extension was acceptable, if the roof was not used as a terrace. It therefore placed a condition on the permission preventing such use. This is a decision the Council is entitled to make.
33. Should the applicant decide to breach the condition then anyone would be entitled to report the breach to the Council, which would be obliged to investigate.
34. Turning to the reports of bonfires and anti-social behaviour. The Council confirms the Environmental Health team received complaints about bonfires taking place. After receiving completed diary sheets, officers visited the site and spoke with the applicant. The Council has confirmed the dates these visits took place. Further reports of bonfires at night were received by a councillor but no further complaints were received by the Environmental Health team.
35. The complainants disagree with the Council and say they continued to report bonfires. However, they have also confirmed they gave up reporting further incidents to avoid exacerbating the situation.
36. The Council has confirmed officers visited the site, spoke with the neighbour, and wrote to the neighbour. I have seen no evidence of fault in the way the Council responded to the reports of bonfires by visiting the site and speaking and writing to the neighbour.
37. The complainants say the neighbour used the flat roof to verbally abuse them. They also say the neighbour used the flat roof to stare at them, intimidating them. I understand this was distressing for Mr X, Ms Y & Mrs Z. However, the intimidation by their neighbour is not the fault of the Council. The complaints say they reported this to the Council who did not consider it as a breach of the planning condition. Having considered the matter, this is a decision the Council is entitled to make.
38. Mr X contacted the Council’s community protection team stating Ms Y has been verbally abused by the applicant. He confirmed he had already reported the incident to the police. The Council says officers advised there is little action they can take because the applicant is not a Council tenant and they have no legal jurisdiction. However, officers offered to mediate but this was refused. The Council told Mr X to contact them again if assistance was needed in the future. they also suggested that Mr X use recording devices, CCTV and/or to keep a diary, it confirmed that he should call the police should another incident occur.
39. Verbal abuse is classed as harassment which is a criminal offence. Criminal matters should be referred to the police. As Mr X had already reported the incident to the police, I have not seen evidence of fault in the Council’s response on this matter.
40. The complainants dismissed the mediation officers as they believed it would not have worked given their neighbour’s behaviour. This is a decision they were entitled to make.
41. The complainants say the Council published their personal information in the form of photographs on the planning pages of its website, without permission.
42. No photographs now appear with the planning application. The Information Commissioner’s Office (ICO) is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes disclosing information in error.
43. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints.
44. The ICO can decide if a council has failed in its duty as a data controller. It can decide if there has been a data breach which it should have been told about. These are not decision the Ombudsman can take. The ICO also has far wider powers than the Ombudsman if it decides a council has failed in its duties as a data controller.
45. The final point of this complaint is the Council failed to follow its complaints procedure.
46. I note the responses to the complaints were not made by the officer stated in the complaint procedure. The stage 1 response was made by the Planning Manager and the stage 2 by a Principal Planning Officer not previously involved in the case. The request to escalate the complaint to a stage 3 review by the Appeals and Complaints Committee was considered by the Head of Law and Governance. The purpose of a referral to the committee is to the establish the injustice caused by the fault. In this case, the Council concluded there was not fault therefore the complaint was not referred.
47. Whilst the complaint was not considered strictly in line with the published procedure, I do not consider this specific issue alone has caused a significant personal injustice which warrants investigation.

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Final decision

48. It is clear Mr X, Ms Y and Mrs Z found the experience with their neighbour distressing to the point they felt compelled to sell their homes. However, I consider this to be due to the actions of the neighbour, rather than the Council.
49. I have not seen evidence of fault in the planning process:
• the application was publicised according to statutory requirements
• objections were considered
• the planning officer’s report included all relevant information; and
• the Planning Committee made the decision to grant conditional planning permission.
• the Council responded to reports of breaches of planning control and bonfires
50. I will not investigate this complaint for the reasons stated in paragraphs 4 to 6 above.

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Investigator's decision on behalf of the Ombudsman