Summary: Mr X complained about the Council’s decision to grant planning permission for a neighbour’s development without consulting him. The Ombudsman found the Council was not at fault.

The complaint

1. Mr X complained about the Council’s decision to grant planning permission for a neighbour’s development without consulting him. He said properties further away and less impacted were consulted, and site notices were not displayed nearby.
2. Mr X said he has now lost privacy in his home. His living room and bedroom are significantly overlooked by the new development.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning Act 1990.
• The Town and Country Planning (Development Management Procedure) (England) Order 2015.
• The Council’s Statement of Community Involvement (June 2017).
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

Planning legislation and guidance

7. 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.
8. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations suggest they should not.
9. Planning considerations include things like access to the highway, protection of ecological and heritage assets and the impact on neighbouring amenity.
10. When considering complaints about planning applications, we look for evidence the Council followed a proper process before making its decision. We expect to see evidence the Council has identified the material planning considerations raised by the application and properly considered them. This evidence is usually found in the case officer’s report or the decision notice.
11. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate a decision was 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.
12. 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.
13. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application. The Ombudsman will not come to a view on the merits of the planning application. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission.

Consultation

14. When a council receives a planning application, it must tell the public. How it does this will depend on the nature of the application.
15. 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.
16. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
17. 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.

Council procedure

18. For minor applications, such as household applications or domestic extensions, it is the Council’s policy to send letters to neighbours only. It will not advertise the application in the local press or put up a site notice.
19. However, if the development is in a conservation area, the Council will advertise in the local press and put up a site notice as well as sending letters to neighbours.
20. It is the Council’s policy to send letters to adjoining neighbouring properties only.

What happened

21. In January 2018, Mr X’s neighbour put in plans to demolish the existing house and build a new three storey house in its place.
22. The Council produced a site notice and sent a notification letter to some neighbours on 18 January. Both detailed the proposals and how to comment. The deadline for comments was 16 February.
23. The Council also produced an advert about the application on 22 January. This was published in a local newspaper on 26 January.
24. In February, the Council received objections from three neighbours. The objections were about the mass of the building, and its design being out of keeping. There were also concerns about overlooking.
25. A local councillor wrote to the Council on 9 March, asking for the planning committee to consider the application because the design was out of keeping with the conservation area.
26. The case officer conducted a site visit where they took photographs of neighbouring houses to form part of the Council’s assessment of the application.
27. On 22 March, the case officer completed a report ahead of the planning committee meeting on 4 April. The report confirms one of the main issues is whether there will be a harmful effect on adjoining and nearby residents.
28. The case officer said while occupiers of nearby houses will appreciate the increased scale, the proposal will not result in any significant adverse impact on the occupiers. The enlarged house will be perceptible to neighbours; however, the proposal was not considered to have a significant adverse impact with loss of light, outlook, overbearing impact or increased sense of enclosure.
29. The case officer also discussed the large windows and balcony the applicant planned. Neighbours were concerned about overlooking and loss of privacy. However, the case officer did not consider the design would result in significant overlooking or loss of privacy because of the fact the existing building had windows at first floor level. The new building will also be set back at the second floor.
30. Mr X contacted the Council in January 2020, after finding out about the new development in July 2019. He asked the Council to visit his home to assess the impact.
31. The Council responded on 7 February. It explained it put up site notices and sent letters to adjoining occupiers. As it is a conservation area, it also published details of the application in a local newspaper. The Council said, because Mr X’s property does not adjoin the application site, it did not send him a notice letter.
32. A planning manager visited Mr X’s home on 17 February to assess the impact of the new house, which was still under construction. The manager took photographs of the new house from Mr X’s terrace, living room, first floor, bedroom, and balcony.
33. The planning manager wrote to Mr X on 4 March with the findings of their assessment and their observations about the planning process. They said:
• The Council followed local and national guidelines on notification when it considered the application.
• There is a line of sight from Mr X’s home to the application site, but at an angle. The new house is taller and closer, but there is not a new house where there was no house before. They were not convinced the Council therefore should have consulted Mr X and there must be a cut-off point.
• The planning committee considered light, enclosure, outlook, overlooking, and privacy but did not consider there was any significant adverse impact. Having viewed the new house from Mr X’s house, the manager agreed with this conclusion.
• The impact on Mr X’s ground floor is minimal.
• There is a relatively narrow cone of sight, at an angle, from Mr X’s first floor windows to the new house. Although the new house is taller and closer, the change is not significant. The change to Mr X’s amenity would not be enough to withhold planning consent.
• From Mr X’s bedroom there are changes in relationship compared to the previous house. The first-floor windows on the old house were smaller and further away, but at a less acute angle. The new second floor window will be set back and at an angle. The occupiers of the new house will have the same angle of view as Mr X, and may put up blinds or curtains. The manager drew the same conclusions for amenity as for the rest of the first floor.
• Mr X cannot expect the same degree of amenity on his balcony as indoors.
• Physical relationships between houses in urban areas is close. That inevitably means less amenity and privacy than rural areas. The Council judges each case on its merits. It did not consider the situation between Mr X’s house and the new house was unreasonable. The Council granted permission after careful consideration of neighbours’ amenities.
34. Mr X made a formal complaint on 5 March. He said the Council failed in its duty to tell him about the application and his home is materially affected. His right to privacy and private life is affected. The planning manager’s assessment was not balanced, factual, accurate, reasonable, or impartial.
35. The Council responded to Mr X’s complaint on 29 May. It said:
• The planning manager’s response on the issue could have been clearer, but otherwise the Council was satisfied.
• The case officer identified Mr X’s home at his site visit, took photographs, and considered the scheme’s impact on amenities of neighbours to the south.
• Objections received from neighbours about overlooking were considered as part of the case officer’s report.
• The case officer’s assessment was that the scheme would not result in any significant overlooking or loss of privacy.
• The relationship between the new scheme and Mr X’s house is different to that of adjoining neighbours.
• On balance, the case officer should have considered whether sending a notification letter to Mr X would have meant a more fully informed decision.
• It is satisfied however that Mr X was not disenfranchised and matters of privacy and overlooking were sufficiently addressed.
36. Mr X was unhappy with the Council’s response. He emailed the Council on 1 June. He said it wrongly named his house, which showed the Council did not consider it at the planning stage. He also said the second-floor windows of the new house were in place and he can see directly into the house. The case officer’s oversight in not consulting him left him seriously materially impacted. Mr X said it was his understanding properties within 20 metres should be told, as should properties which are materially affected.
37. The Council sent its stage two complaint response on 19 June 2020. It apologised for the error naming Mr X’s house, but said it was clear it was referring to his house. It said it was not disputed the new house may produce a different impact on amenity than the house it replaced, but it is the extent of that impact which is in dispute. It is a judgement which was addressed by the case officer in his report to the planning committee. The Council was satisfied it properly addressed the matter of privacy. It confirmed distances between properties had no bearing on neighbour notification.
38. Mr X remained unhappy and asked the Council to consider his complaint at stage three of the process. He said it was not a case of simply disagreeing with the Council. The Council notified other houses which are further away and less impacted. It gave no justification why it did not tell Mr X.
39. The Council sent its final complaint response on 20 July. It recognised Mr X’s frustration other houses at a similar distance were notified and he wasn’t. It apologised for not telling him. It said it would ask planning officers to consider neighbours who could potentially be impacted in future to avoid any oversights.
40. However, the Council said it used other forms of notice in line with planning procedures, such as site notices and local press adverts. It was satisfied Mr X was not denied an opportunity to put in representations.
41. It said neighbours raised similar concerns to Mr X about overlooking and loss of privacy. The case officer took account of surrounding amenities, as shown by the photographs taken which were included in the report to the planning committee.
42. The Council ended by saying there are lessons to be learnt in adopting a more consistent approach to telling properties about planning applications. However, it remained satisfied it sufficiently addressed the amenity of all nearby properties during the assessment of the scheme and by the planning committee.
43. Mr X brought his complaint to the Ombudsman on 22 July 2020 because the Council would not admit fault for failing to tell him.

Response to my enquiries

44. The Council told me it is satisfied it made a sound decision.
45. It disagreed it forgot Mr X’s home as part of its assessment. It said properties suffer varying degrees of impact but not all will be notified as the Council has to draw the line somewhere. The case officer took photographs of Mr X’s home, so was aware of the impact.
46. The Council said it carried out notification in accordance with its procedures and the case officer properly considered neighbouring amenities. A planning manager subsequently visited Mr X for an assessment but did not consider there was a significant impact on his amenities which would alter the decision.

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Analysis

47. The application site in this case was a household development, making it a minor application. The site is also in a conservation area. That meant, under the Council’s policy, it had to advertise in the local press, put up a site notice, and send neighbour notification letters to adjoining properties.
48. On the evidence seen, the Council did advertise in the local press. It also put up a site notice. It sent letters to adjoining neighbouring properties, including some which did not adjoin the application site, but not to Mr X. While I understand Mr X’s frustration at not receiving a letter, his home does not adjoin the application site.
49. The Council met its duty in terms of notification. It is then at the case officer’s discretion about whether to go over and above the policy by notifying others. I have considered whether the case officer’s decision not to notify Mr X was an unreasonable one which no other reasonable officer would have made. I do not consider there is any evidence that was the case.
50. Mr X thought the case officer did not consider his home part of the assessment. He points to the fact some properties received notification letters despite being further away and less impacted than his own. The Council also incorrectly named Mr X’s home in its complaint response. I have seen photographs the case officer took on site as part of his assessment. This includes pictures of Mr X’s home. While the case officer did not specifically refer to Mr X’s home in his report to the planning committee, I find that on balance Mr X’s home was considered.
51. It is understandable Mr X felt aggrieved at not being able to comment on the plans. In its complaint response, the Council acknowledged it could have notified Mr X and will remind planning officers to notify all neighbours affected by an application in future. That is welcome.
52. Mr X’s main concerns were about privacy and overlooking. Although Mr X could not object, some neighbours did. Their concerns included privacy and overlooking. The case officer considered those concerns in his report. We do not expect planning officers to refer to every affected property or window in their report, and the Court does not expect this level of detail. It is enough for the case officer to show the material issues have been considered.
53. If the Council had notified Mr X, I do not consider there is evidence for me to say the outcome would have been different. The case officer considered objections about privacy and overlooking and took pictures of Mr X’s home. A manager then visited Mr X’s home after his complaint to assess the impact on his privacy. It was the manager’s view any impact was not significant enough to refuse planning permission.
54. I appreciate Mr X disagrees with the Council’s decision. However, the Council took into account the relevant policies and planning considerations, including neighbours’ concerns about overlooking and privacy. It was not under a duty to notify Mr X and I have not seen evidence of fault in how the decision was reached.

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Investigator's decision on behalf of the Ombudsman