Summary: Mr B complained about the Council’s handling of planning applications for a large residential development neighbouring his property. Some of his complaints are late and we have not investigated them. There was no fault in the way the Council considered the most recent planning application in this case.

The complaint

1. The complainant, who I have called Mr B, complains about the Council’s handling of planning applications for a large residential development neighbouring his property. Mr B says the Council has completely ignored its own supplementary planning guidance and approved the application without considering the impact on amenity in terms of separation distances. Mr B says he is overlooked by the houses built nearest his home and this significantly impacts on his and his wife’s enjoyment of their home. He wants the Council to compensate him in recognition of the impact of its decision to grant planning permission.

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The Ombudsman’s role and powers

2. 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)
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. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

5. 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

6. I have spoken to Mr B and considered the information he provided in support of his complaint.
7. I have considered the information the Council has provided in response to my enquiries.
8. Mr B and the Council now have an opportunity to comment on my draft decision. I considered any comments received before making my final decision.

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What I found

Relevant guidance

9. Planning permission is required for developing land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
10. Outline planning permission decides the acceptability of development, subject to later agreement to details of ‘reserved matters’. Reserved matters may be around access, appearance, landscaping, layout, and scale of the development. An application for approval of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.
11. All decisions on planning applications must be in line with the council’s development plan, unless material considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as decrease in the value of a property. Material planning considerations include things like:

• the impact on neighbouring amenity;
• loss of sunlight;
• overshadowing/loss of outlook to the detriment of residential amenity (though not loss of view as such);
• overlooking and loss of privacy;
• layout and density of building design, visual appearance and finishing materials.

12. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it based on valid material planning reasons. It is for the decision maker to decide the weight to be given to any material consideration in deciding a planning application.
13. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

14. Councils have a duty to investigate complaints about breaches of planning control. If a breach is found, the Council’s next duty is to take a view on whether it needs to do something about it or not. The key issue is whether the alleged breach of control would unacceptably affect public amenity or the existing use of land or buildings meriting protection in the public interest.
15. In deciding whether it is expedient to start enforcement action, the council can take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between protecting amenity and permitting development which is acceptable.
16. A council may invite a retrospective application to regularise development which has already been undertaken. Councils must consider any such application in the normal way.

What happened

2015 – outline planning permission

17. The Council considered an outline planning application for a residential development situated to the side of Mr B’s property.
18. The planning committee granted permission in April 2015 for up to 200 residential properties. Further applications were then necessary for the Council to approve details such as layout, scale, appearance and density.

2017 – reserved matters approval

19. The applicant applied to the Council for approval of reserved matters in September 2016. Mr B was consulted on the application and submitted objections about impact on his residential amenity, the poor design of the properties and the close proximity of a number of the proposed dwelling to his property. Mr B said this would have a significant and detrimental impact on his amenity in terms of loss of light, overlooking and visual intrusion.
20. The Council’s planning report set out the main planning considerations. The report noted a number of third-party objections to the design, layout and associated impact on residential amenity. The report included consideration of the potential impact where proposed dwellings abutted existing residential properties, which included the specific impact on Mr B’s property. This concluded that the distances between the properties and the high fencing was sufficient to mitigate the impact on residential amenity. Overall, the Planning Officer considered the scheme did not present a harmful relationship to existing residential properties to make the application unacceptable in planning terms.
21. The planning committee met in late February 2017 to consider the reserved matters application. Some members of the committee had undertaken a site visit prior to the meeting and had obtained views from a local campaign group of residents that objected to the development. The committee considered and approved the reserved matters application subject to a number of planning conditions.

Planning enforcement

22. Construction started on the site shortly after reserved matters permission was granted. The Council received a report from a resident (not Mr B) raising concerns that the developer’s working drawings did not match up with their approved plans. The developer informed the Council it had made changes to adjust the sizes of some properties to meet the requirements of their affordable housing provider. The Council invited the developer to submit a retrospective application to seek consent for the changes made to the approved scheme.
23. The developer submitted a retrospective application to the Council in September 2019. The Council sent notifications to neighbouring residents, including Mr B, on 20 September 2019. This sought any comments on the application from neighbours within 21 days. The Council sent a further notification and request for consultation comments from neighbours on 20 February 2020 and again asked for any comments to be submitted in 21 days. Mr B did not submit any comments following each of these notifications.
24. The Council set up an Advisory Panel to assist with the consideration of planning applications following the first COVID-19 National Lockdown on 24 March 2020. The authority of the planning committee to approve major planning applications was temporarily delegated to the Head of Planning, while the Council made arrangements to conduct planning meetings virtually. The Advisory Panel met weekly and the Council published minutes of their meetings on its website. Residents in the Council’s area were notified of the changes to the planning process via a newsletter published on the Council’s website in April 2020.
25. The Advisory Panel met to consider the developer’s retrospective planning application on 14 April 2020. The Panel noted the content of the planning report, which set out the changes the developer had made to the originally approved scheme. The report stated that properties built closest to Mr B’s home had been extended to the rear by 0.65 metres compared to the originally approved scheme. The Planning Officer concluded that such a minor change did not make the development unacceptable in planning terms, given the negligible impact this would have on residential amenity. The Panel agreed with the Head of Planning’s recommendation to approve the application. The approval decision was published on the Council’s website on 23 April 2021. The delay in publication was caused by a delay in completing a variation to the legal agreement between the Council and the developer.
26. The Council responded to Mr B’s stage two complaint about its handling on 19 May 2020. The Chief Executive explained how the Council had considered the impact of the changes the developer had made to the approved scheme and concluded these should not result in revocation of planning permission. The Chief Executive confirmed the Council would be meeting with the developer to express its disappointment at how the development had progressed so far and to ensure further work on the site was completed in accordance with the approved plans. Although the Council noted Mr B was unhappy with the way the whole application process was handled, the Chief Executive confirmed they were satisfied that matters in respect of planning and enforcement for this development site had been handled correctly.
27. Mr B brought his complaint to us because he remained dissatisfied with the Council’s handling and response.

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Analysis

28. The Council’s handling and consideration of the outline and reserved matters applications in this case took place several years ago. Mr B was aware of these applications and made objections to the reserved matters application at the time. If he remained dissatisfied with the Council’s handling, there appears no reason he could not have escalated his complaints to us at the time or at least within 12 months of the Council’s decision to grant permission for the reserved matters application in early 2017. I have therefore decided not to exercise discretion to investigate any complaints Mr B may have about the Council’s handling of these applications now as they are significantly out of time.
29. When making its planning decisions, the Council is obliged to consider the impact development will have on neighbours, whether they object or not. Mr B did not submit any comments on the two occasions when the Council wrote to him following the developer’s retrospective application in September 2019. In any event, the Advisory Panel and the Head of Planning considered how the changes would specifically impact on Mr B’s property. While Mr B may disagree with the Council’s conclusions, I do not find fault with the way this decision was made.
30. There was a significant delay in the Council’s publication of its decision in this case. I do not consider this caused Mr B injustice. This is because Mr B was informed of the Council’s approval of the retrospective application within its responses to his complaints, which was shortly after the Advisory Panel had confirmed approval.
31. Mr B has complained the Council failed to follow its own supplementary planning guidance on separation distances in this case. Mr B has directed me to the guidance he believes the Council should have followed. I note this guidance relates to development involving extensions to the rear of existing residential properties rather than major new developments consisting of a number of new residential dwellings such as the development next door to Mr B. This guidance suggests that rear to rear garden separation distances should ideally be kept to 24 metres and as a minimum 12 metres in more developed/urban areas.
32. I do not find fault with the Council for not following the guidance Mr B has directed me to. This is because it is not relevant to the type of development in this case. In response to my enquiries, the Council has explained that while most of its supplementary planning guidance has been superseded by its local plan and national guidance, the guidance that may have been relevant in this case does not set out specific separation distances between buildings. I am satisfied there is no evidence of fault as the Council has considered the impact on residential amenity in this case, which is a material planning consideration.
33. As there appears no evidence of fault in the Council’s handling of the most recent planning application and Mr B’s complaints, I have no grounds upon which to recommend the Council makes any sort of payment to compensate Mr B.

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Final decision

34. I have completed my investigation with a finding of no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman