• The complaint
• The Ombudsman’s role and powers
• Council’s Local Plan
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: The Ombudsman found fault by the Council on Mrs Y’s complaint about the way it dealt with a neighbour’s planning application. It failed to spot inconsistencies between two sets of plans it approved and the planning report contained some inaccuracies. The fault caused no injustice to her. There was no fault on her remaining complaints about its failure to take enforcement action against the neighbour.

The complaint

1. Mrs Y complains about the way the Council dealt with her neighbour’s planning application and its failure to:
   • 1. Identify inconsistencies in the application which included one set of drawings showing 2 ground floor side windows and a door facing her property while another did not;
     2. Identify the same inconsistencies in amended plans received from the neighbour;
     3. Accurately set out what was proposed in the planning officer’s report;
     4. Act when alerted to the extension being built too close to her property;
     5. Take enforcement action against the neighbour who refused to remove the windows or apply for retrospective planning consent;
     6. Act on her concerns of the building being used by multiple people or as a religious meeting place; and
     7. Respond to correspondence.
2. As a result, her privacy in her garden is affected and she suffered stress, frustration, and inconvenience.

Back to top

The Ombudsman’s role and powers

3. 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)
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’. 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)

Back to top

Council’s Local Plan

5. Development proposals will be expected to show high quality design reflecting local distinctiveness and should:

• Show a clear understanding of the form and character of the built, historic, and natural environment and use to complement local character and distinctiveness;
• Respond to local context and the form of surrounding buildings in relation to: the overall scale and character; layout; site coverage; height and massing of existing buildings; the relationship between buildings and spaces and the wider street scene or townscape; use of appropriate materials and detailing; and
• Protect the amenity of the wider environment and neighbouring uses. (Policy WLP8.29-Design)

Back to top

How I considered this complaint

6. I considered all the information provided by Mrs Y, the notes I made of our telephone conversation, the photographs she sent, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

Back to top

What I found

The planning application: complaints a), b), and c)

7. In 2019, new neighbours bought the property next door to Mrs Y’s house. The neighbours applied to the Council for planning consent to develop it. The applicant wanted to extend it and add a 2 storey and first floor extension to one end of it bringing it within 1 metre of Mrs Y’s boundary.
8. When notified of the application, Mrs Y decided not to make any representations because the plan she viewed showed no windows facing her property. She is unhappy because when granting consent, the Council failed to notice an inconsistency between the floor plan and the elevation plan. The floor plan showed three openings at ground floor level which were not shown on the elevation plan. These faced her property. Two of them are windows: one to a utility room, the other to the kitchen, and the third is a door to the garage.
9. Mrs Y argues the planning officer failed to properly consider the application when granting consent under delegated authority. She complains the officer:

• failed to spot this error and take in to account any impact they would have on her privacy;
• failed to properly consider the development’s overall impact on her amenities, especially loss of light and its dominating impact because of its size;
• wrongly referred to the number of existing bedrooms in the property as 5 instead of 3;
• failed to consider whether it was out of character for the area; and
• failed to consider the limited screening along their boundary.

10. The Council argued the planning officer assessed the development and considered it suitable. It pointed out Mrs Y could have made representations about the length of the brick wall now facing her property, its distance, and impact but chose not to do so.
11. In response to my enquiries, the Council confirmed the reference in the report to 5 bedrooms was in the ‘proposal’ section of the report. This is what the applicant wanted to build, not what was already there. It said the planning officer considered the impact of the development in terms of light, overshadowing, massing, and overbearing impact on Mrs Y’s amenities under the Local Plan. (Policy WLP8.29 (Design)).
12. The planning officer responded to my enquiries saying she could not visit the site because of the introduction of national lockdown restrictions. Instead, she viewed the plans, photographs taken in the past by estate agents for both properties and recalled the site layout after visiting previously to do a survey for a tree preservation order. She says she was aware of the proposed kitchen windows in the side wall but, considered the separation distance and tree coverage enough to reduce the impact on Mrs Y’s privacy. The officer accepted her report could have been clearer when it referred to no proposed windows in the elevation facing Mrs Y’s property. She also accepted it should have referred to first floor side facing windows as these were checked.

Analysis

13. All decisions on planning applications must be made in accordance with the development plan unless there are valid material considerations to do otherwise.
14. The National Planning Policy Framework (NPPF) does not change the statutory status of the development plan as the starting point for decision making. It gives guidance about drawing up plans and is a ‘material consideration’ in deciding planning applications.
15. A material planning consideration is a matter a council must take in to account when deciding a planning application. They include issues such as overlooking, traffic generation, impact on light, and noise for example. The Council decides what weight to give any material consideration when deciding an application.
16. Where the development plan is silent, or the relevant policies are out of date, planning applications must be decided according to a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and noticeably outweigh the benefits when assessed against the NPPF, or the NPPF states development should be restricted.
17. I make the following findings on this complaint:
    • 1. Notification: The Council properly notified Mrs Y of the application. While she says she was unaware of the proposed size of the development works, this information was available to her online. If she had difficulties understanding the plans, she could have asked the Council about it, for example. Mrs Y had the opportunity to make representations had she wished to do so on any aspect of the proposal.
      2. Inaccuracies: While I took account of what the planning officer said about knowing the windows and door were shown on the floor plans, the problem is there is no mention of these in the report. Nor is there any reference showing their potential impact on Mrs Y’s amenities was considered either. This is fault.

• The report states there are no windows on the gable end wall facing Mrs Y’s property. This statement is incorrect. This is fault.
• Without direct reference in the report, I cannot conclude the officer was aware of these openings or took account of their impact on Mrs Y’s amenities.
• The Council failed to identify the discrepancy when it received revised plans from the neighbour. This is also fault.
• I am not satisfied the fault caused Mrs Y an injustice. This is because the photographs she provided show the openings are wholly screened by a large hedge and a tree. None of the openings are visible from Mrs Y’s property.
• I considered what the Council and Mrs Y said about bedrooms. The plans for the existing building show 4 bedrooms. Three were on the first floor and one on the ground floor. The planning officer’s report wrongly said there were 4 bedrooms on the first floor with a fifth on the ground floor. This was in a paragraph describing the existing building, not the proposal, as it started by saying, ‘At present’. While the description was wrong according to the submitted plans, I am not satisfied this caused any injustice to Mrs Y. This is because the officer considered the proposed plans showing the correct number of bedrooms the property would have after development. Overall, the proposal would increase the number of bedrooms in the property by 1.
  • 3. Consideration of amenities: In addition to her concerns about the accuracy of the planning officer’s report in terms of what was proposed, Mrs Y is also concerned about whether this meant the impact of the development on her amenities was properly considered.
    4. The planning officer’s report referred to the Council’s Local Plan which requires development to respond to local context and the form of surrounding buildings in relation to overall scale, character, layout, site coverage, height, and massing of existing buildings. In addition, the relationship between buildings and spaces and wider street scene or townscape needs considering.
    5. The report noted massing of the development was reduced by its shape and footprint. It noted it will be in keeping with neighbouring buildings in the area and be proportionate to the size of the plot. It went on to note the 19-metre separation distance with Mrs Y’s property with, ‘many large trees in between’.
    6. In response to my enquiries, the Council said the officer considered the impact of the development on light, overshadowing, massing, and any overbearing impact on Mrs Y’s amenities under the Local Plan (Policy WLP8.29 (Design)).
    7. On balance, I found no fault on the complaint about how the Council considered the potential impact of the development on Mrs Y’s amenities. This is because the planning officer’s report took account of policy WLP8.29 of the Local Plan and referred to how the development reduces massing, how it is in keeping with neighbouring buildings locally, and is proportionate to the size of the plot. It also noted the substantial distance between the 2 properties and several trees in between them.
    8. The Council also pointed out the preamble to this policy explained the main aim of the planning system is to ensure the development delivers good standards of amenity for existing/future occupiers and surrounding uses and does not produce significant harmful effect (overlooking, loss of privacy, noise and light pollution, and overbearing development, for example).
    9. The report did not show how the officer considered the proposal’s impact on light to Mrs Y’s house and garden. The purpose of the report was not merely to help reach a decision, but to show the decision was properly made in line with procedures and policies. Without an adequate report, we cannot know whether a council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters. 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 familiar with the issues; and
• Case officer reports do not need to include every possible planning consideration, just the main controversial issues.

Enforcement: complaints d), e), and f)

18. Mrs Y says the Council failed to take enforcement action against the neighbour for:

• The 2 ground floor windows and door facing her property which were not shown on the elevational drawings submitted; and
• Building the extension closer to her property than approved. This means the 2 windows are 15.4 metres from her property rather than the approved 19 metres.

19. When she brought these issues to the attention of the Council, she was unhappy with its response. The Council pointed out its enforcement powers are discretionary, and any action needs to be appropriate. Officers visited the site and decided even if the plans had all correctly shown the windows and door, the Council would have approved them anyway. This was because of the substantial distance between them and her property and due to them being easily screened along the boundary. In addition, the Council noted the neighbour could have inserted the windows later because this would have been permitted development. (Permitted development rights means the Council does not need to give planning consent for certain types of works provided they meet certain criteria as the law already gives consent).
20. Mrs Y is also concerned about the possibility of the neighbour’s future use of the property. Following a site visit, the Council confirmed there was nothing to show the neighbour using the building for any purpose other than a single dwelling.
21. The Council explained the measurements taken during the site visit show the extension is built marginally smaller than approved and slightly further away from the boundary than approved.
22. In response to my enquiries, the Council:

• accepted the separation distance shown on the plans is about 17-17.5 metres from the extension wall to the nearest elevation of Mrs Y’s property. The report referred to the ‘wide spacing’ between the site and Mrs Y’s property;
• said officers who visited were satisfied the windows would have little impact on Mrs Y’s amenity and could have been inserted anyway, once the development was built, without the need for planning consent; and
• acknowledged as the windows were shown on what became an approved plan, there is doubt about whether there was a breach of consent in the first place.

23. The Council acknowledged and accepted the error with the discrepancies in the drawings which were missed.

Analysis

24. Councils can take enforcement action if they find planning rules have been breached. They 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)

25. Once granted, the Council could not amend the planning consent. This is because the neighbour received valid planning consent. To change what it had consented to would mean the neighbour voluntarily agreeing to send an amended application. The neighbour refused to do so. This meant the only option the Council could consider was whether the development was built according to the approved plans and if not, whether this was a breach justifying enforcement action.
26. I make the following findings on this complaint:
    • 1. Enforcement: The openings: The obvious difficulty here for the Council is its decision notice granting consent as it referred to the floor plan which showed 3 openings. Had the Council attempted to bring enforcement action about the installation of these openings, the neighbour would defend it by pointing out he was only doing what was shown on the approved plan.

The evidence shows an enforcement officer visited the site and, apart from a slight variation with the design of the 2 windows, and one window being slightly smaller, found they complied with the approved plans.

I am satisfied the Council properly investigated Mrs Y’s concerns about these openings. I found no fault in its decision not to take enforcement action against the neighbour for these openings.

2. • 2. Enforcement: distance: Mrs Y argues the distance between the side of the development to her nearest facing wall is not 19 metres stated in the planning officer’s report but, about 17 metres. The email an enforcement officer sent the same day she visited the property confirmed it complied with approved plans. As noted, the Council accepted the separation distance shown on the approved plans was about 17.5 metres, not the 19 metres quoted in the report.

I am not satisfied the discrepancy of about 1.5 metres between the officer’s reported distance from the development to Mrs Y’s property amounts to fault. This is because the officer was unable to visit the site herself to assess it directly because of national Covid-19 restrictions. In addition, I am satisfied the difference between the two figures would not have changed the officer’s assessment of its impact because of the distance.

3. • 3. Enforcement: use: Mrs Y is concerned about the neighbour using the now enlarged property for a use other than a single home. The enforcement officer’s email I have seen said while the officer could not gain access to the property, from what she saw through the windows, the evidence showed a single residential use. The officer supported this conclusion by noting the presence of family photographs, coats, shoes, kitchen facilities, a television, and a sofa, for example.

I am satisfied the Council took Mrs Y’s report seriously and took appropriate steps to investigate it. The enforcement officer saw nothing to suggest another use of the property. I found no fault on this complaint.

Correspondence: complaint g):

27. Mrs Y complains about the Council’s failure to reply to her correspondence. The Council does not accept her claim.

Analysis

28. Having examined the timeline of events, and copy correspondence, I am satisfied the Council responded to her correspondence. I found no fault on this complaint.

Back to top

Final decision

29. The Ombudsman made the following decisions on Mrs Y’s complaint against the Council:

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page