Summary: Mr X complained about how the Council responded to a neighbour’s pre-application planning advice request and decided to approve the neighbour’s planning application. The Council was at fault but this did not cause Mr X significant personal injustice.

The complaint

1. Mr X complained about how the Council dealt with a neighbour’s plan to extend their property. He said the Council:
• gave flawed pre-application planning advice;
• issued a delegated report that failed to address his objections; and
• did not take action when the neighbour began excavating the garden before they received planning approval.
2. Mr X said this meant he suffered financial loss, long term stress and went to significant time and trouble.

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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. 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)
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 considered:
• all the information Mr X provided and discussed the complaint with him; and
• the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
7. 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

Relevant law and guidance

Pre-application planning advice

8. If a developer asks for pre-application planning advice, planning officers outline how likely a council is to approve of the application.

Planning applications

9. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations suggest they should not.
10. Planning considerations can include things like:
• overlooking;
• overshadowing;
• noise; and
• drainage issues.
11. Planning considerations do not include things like:
• personal safety; and
• disturbance from construction.
12. It is for the decision-maker to decide what weight they will give to any material consideration in determining a planning application.
13. The planning process, including the advice stage, does not involve itself in private land rights or interests.

Permitted development

14. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out what works are ‘permitted’. This includes demolition of part of a wall.

Enforcement

15. Planning authorities may take enforcement action where there has been a breach of planning control. The Town and Country Planning Act 1990 says a breach is when development is carried out without the required planning permission.
16. Enforcement action is discretionary. If the council makes enquiries and decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how and whether to act. Government guidance says formal action should be a last resort.

What happened

Pre-application advice and application

17. Mr X lives in a cul-de-sac located behind a terraced house. The garden of the terraced house is separated from the cul-de-sac’s road by a retaining wall. Mr X’s home is nearest the wall. In 2019, the owner of the terraced house applied for planning approval. The works included an extension, installation of a flat-roofed shed against the wall and installing a gateway in the wall for access to the cul-de-sac’s road.
18. Before applying for planning permission, the neighbour requested pre-application planning advice. The Council told the neighbour the proposed gateway in the wall did not need planning permission because the gateway would not exceed the height of the existing wall. Mr X said the Council's advice was wrong because it had not checked who owned the land at the base of the wall or advised the neighbours to. He said it was permitting trespass.
19. Mr X objected to the application. In summary, Mr X said:
• the proposed gateway would affect his use of the cul-de-sac road, disturb his privacy and cause unnecessary noise. Mr X said this would be happen during the construction works and afterwards;
• the gateway involved removal of a buttress in the wall. The plans did not consider whether this would cause drainage issues;
• the extension would overlook and overshadow his home; and
• the proposed shed would pose a security risk to Mr X due to its flat roof and location near the first floor of his home.
20. The planning officer’s report summarised and responded to the objections received from neighbours, including Mr X. It said:
• the gateway was only for the use of the household so any increased activity on Mr X’ road would be minimal;
• the proposal was not harmful to highway safety;
• it recommended a condition limited the hours of construction to protect neighbouring amenity;
• the officer understood a third party owned the land at the base of the wall so the neighbour would need to seek consent before creating the gateway; and
• the extension would be visible from Mr X’s street, but would not be out of place. The location of the windows in the development would not allow for a direct view of Mr X’s property or garden. The officer was satisfied there was no material overlooking.
21. The report did not consider Mr X’s concerns about the effect the proposal would have on drainage or his safety.
22. The Council approved the application subject to conditions.
23. Mr X remained concerned about the effect the gateway would have. He asked his solicitor to find out who owned the land at the foot of the wall and bought it to prevent the neighbour building the gateway.

Enforcement

24. As part of his objections, Mr X said the works required to prepare the garden for the gateway and shed had begun before planning permission was granted. He asked the Council to stop the works until it decided the outcome of the planning application.
25. The Council acknowledged his concerns but did not respond.
26. In response to a complaint from Mr X, the Council said enforcement action was discretionary and it did not consider action was appropriate given that, at the time, it was still considering the planning application. It apologised for not telling Mr X of its decision.

Findings

Gateway

27. The Ombudsman is 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.
28. Mr X said the Council gave flawed pre-application advice because it should have told his neighbour to check who owned the land at the base of the wall. Land ownership is a civil matter and not an issue considered as part of the planning process. The Council was not at fault for not investigating who owned the land or advising the neighbour to do so.
29. The Council's decision to consider the gateway as ‘permitted development’ was in accordance with the Town and Country Planning (General Permitted Development) (England) 2015 Act. There was no evidence of fault in its decision, therefore I cannot comment on it.
30. Mr X was concerned about household and construction traffic using the gateway to access the cul-de-sac road. The Council properly considered whether the proposals would result in unreasonable household movement through the gateway, be harmful to highway safety or cause unacceptable levels of noise. It imposed a condition limiting the hours of construction in response. There is no evidence of fault in how the Council responded to Mr X’s objections.

Drainage

31. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. The Council was at fault for failing evidence how it considered the issue.
32. However, the Council's fault did not cause a significant personal injustice to Mr X. Mr X bought the land at the base of wall, preventing the neighbour building the gateway and any potential drainage issues resulting from removal of the buttress.

Overlooking

33. Mr X is unhappy the planning officer made a judgement on the effect of the development on his amenity without visiting his home. The Ombudsman does not expect planning officers to visit neighbours when assessing a proposed development. The report shows the officer properly considered whether the development would overlook Mr X’s home and considered the proposal was acceptable. The Council was not at fault.

Safety

34. Safety of private citizens is not a material planning consideration. The Council was therefore not at fault for not taking it into account when making its decision to approve the plans.

Enforcement

35. The Council's powers to take enforcement action against breaches of planning control are discretionary. There was no evidence of fault in how the Council considered whether it should act against Mr X’s neighbour when they began garden works before receiving planning approval. The Council apologised for failing to update Mr X. I consider this a suitable remedy for any injustice caused to him by its delay.

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Final decision

36. I have completed my investigation. I have found evidence of fault by the Council but it did not cause Mr X significant personal injustice.

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Investigator's decision on behalf of the Ombudsman