Summary: Mr X complained on behalf of a company. Mr X said the Council failed to properly publicise or consider a planning application for development on land next to the company’s property. There was some fault in the way the Council made its decision that it should act to remedy.

The complaint

1. Mr X represents a property development company. Mr X complained the company’s property was devalued because the Council failed to:
• properly publicise a planning application, as no site notice was placed nearby or notification letter sent to his client; and
• consider the impact the development will have on the company’s property.
2. Mr X said because of this, his client had no opportunity to correct misunderstandings and comment on the impact the development will inevitably have on their property.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. 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.
6. I gave Mr X (through his representative) and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Regulations set out the minimum requirements for how councils publicise planning applications.
12. 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.
13. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
14. 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.
15. The Council’s SCI says that, amongst other options, it may publicise applications by:
• writing to properties neighbouring the application site; or
• displaying a site notice.
16. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents (SPD).
17. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
18. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
19. Although guidance can set different limits, councils normally 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. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
21. The Council’s SPD states that it would normally expect 21 metres between habitable rooms (although inner urban locations may be closer) and 12 metres between habitable rooms and blank elevations.

What happened

22. The company had planning approval to build new houses on land that was once occupied by a garage. The development was substantially complete when the owner of the adjoining building submitted a planning application to build a flat on the second floor and a first-floor extension for a stairwell.
23. The application plans for the elevation nearest the new houses included windows to a second storey bathroom and kitchen diner, and a window on the first-floor stairwell. These windows are at an angle, with the closest just a few metres to a bedroom in the nearest new house. None of the new windows are shown as obscurely glazed.
24. The application was considered by a case officer. The case officer wrote a report which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• a summary of comments from neighbours and other consultees;
• details of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on neighbouring amenity and the principle of development; and
• the officer’s recommendation to approve the application, subject to planning conditions.
25. The section in the report which sets out the case officer’s analysis of the impact on the amenity of surrounding development does not show any consideration of the new houses but does comment on properties further away. In relation to these properties, the case officer concludes that the new development will not result in an overbearing impact, loss of light or privacy, but there is no mention of the impact on the new houses.
26. The application was approved by another officer using delegated powers.
27. The company complained to the Council about what had happened. The Council admitted that it had not sent a neighbour notification letter or put up a site notice. However, it said that it thought the development was acceptable as the new houses were already overlooked by existing first-floor windows on the original building as well as existing houses on a street nearby. It said it had begun a review on how it should deal with similar cases in future.

My findings

28. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
29. There was fault in the way the Council made its decision because it did not publicise the application properly. The regulations require either a site notice or notification letter, but the Council did neither.
30. I am not persuaded the Council was obliged to send a notification letter to the property owner, because:
• the regulations allow an option of either a site notice or letter; and
• the SCI states notices should be sent to ‘neighbouring properties’, and at the time the application was publicised the new houses were unoccupied. I have not read anything in the SCI that would oblige the Council to research the address of the landowner and send a notice to a different address.
31. When we find fault, we must determine whether it causes a significant injustice to the complainant. In this case, the company has sent me information about the impact the fault had on the value of its properties.
32. We aim to remedy the injustice caused to individual complainants by fault in the decision-making process. We need evidence that shows, that but for the fault it is likely the outcome would have been different. In planning cases, we look to remedy the impact the development has on amenities (such as outlook, privacy and light) as it affects habitable rooms.
33. The planning system can protect amenities but can give no account to the impact development might have on property value. When it is at fault in the way it makes its decisions, we can provide a remedy for what it fails to do – protect the public, including the amenities of neighbours.
34. The Council accepted fault in the way it publicised the application but said this made no difference to the outcome because windows at the rear of the new houses were already overlooked.
35. I recognise that councils have discretion to depart from their policy and guidance, but they need to demonstrate they have exercised that discretion properly. We normally expect to find evidence of consideration of the key material issues in the case officer’s report, which is written to advise the decision-making body or individual.
36. We accept that delegated reports might be written differently, as their target audience is a professional planner, not a member of the planning committee. However, delegated reports still need to demonstrate the core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated.
37. The purpose of the 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.
38. An explanation of what happened that is given after the events, either in a complaint response or during our investigations, may provide relevant evidence, but it will not necessarily prove the Council acted without fault. This is because we need evidence that shows the Council exercised its discretion properly at the time its decision was made.
39. I note what the Council now says about the impact the development will have on the new houses, but I am not persuaded by its reasoning. The overlooking it refers to is from windows further away, and the new development has more windows and a whole extra storey which must have some overbearing impact and cause loss of privacy. I would have expected the case officer’s report to include evidence to show these issues were considered and how they affected the officer’s judgement.
40. I note from correspondence between the company and council officers that the development’s architect has said the second-floor bathroom may be obscured but other windows (first-floor stair landing and kitchen diner) will remain clear glazed.
41. Given the contents of the Council’s SPD and the close proximity to habitable room windows in the new houses, I see no reason why the Council would not have used planning conditions to protect privacy of future residents of both the new houses and the second-floor flat.
42. I recommended action that the Council should take to remedy the fault I have found and the Council has agreed to do so. One of my recommendations will be for the Council to attempt negotiations to improve privacy. I realise the Council has lost planning control, but it may achieve improvements that will benefit future occupants.
43. I have not recommended a financial remedy for the company. This is because it has not personally suffered a direct impact on amenities, but rather it claims the Council’s failure has affected the value of its asset.
44. I should also note that the details of losses it provided do not show the closest house suffered the greatest impact.

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Agreed action

45. To remedy the fault I have found, the Council has agreed to:
• acknowledge and apologise for its failure to properly publicise the application or consider the impact it will have on the complainant’s property;
• approach the developer and seek to negotiate and pay for changes, such as obscuring clear glazed windows on the elevation nearest the new houses; and
• complete its review of its processes and share its findings, with any changes it makes to work practices and policy, with the Ombudsman.
46. The Council will complete the first part of the remedy within 4 weeks and the second part within 12 weeks from the date of our final decision.

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Final decision

47. There was fault in the way the Council made its decision. I completed my investigation because the Council accepted my findings and recommendations.

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Investigator's decision on behalf of the Ombudsman