Summary: Mr X complained about the Council’s decision to approve development of land at the side of his home. We found no fault in the decision-making process.

The complaint

1. Mr X complained about the Council’s decision to approve development on land at the side of his home.
2. Mr X was concerned that:
• the Council did not visit and view the site from his home;
• the Council has failed to properly protect his amenity, particularly his privacy in his garden, which will be overlooked;
• there are errors in the case officer report; and
• an existing hedge, part of which was already removed by the developer, will not be protected.

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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. 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 and the Council an opportunity to comment on a draft of this decision and 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 over another’s land;
• 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. 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.
12. 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.
13. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. 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.
15. The purpose of the planning case officer’s 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.
16. 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 key, principle controversial issues.

Background

17. The owner of land next to Mr X’s home submitted a planning application to build houses.
18. The Council publicised the application and Mr X, along with other residents, sent in their objections and comments.
19. The Council’s planning case officer considered the application and wrote a report. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
20. The case officer’s report referred to Mr X’s concerns and set out the separation distance and level increases. The report says distance between the gable in Mr X’s home and the nearest house is over 12 metres, but later that the separation distances vary between 16 and 25 metres. Mr X also said that the difference in ground levels referred to in the case is incorrect. Mr X said these discrepancies show the report was based on factual inaccuracies.
21. The Council approved the application subject to planning conditions, including some to control landscaping and hedge retention.

My findings

22. 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.
23. Mr X would have preferred the case officer to have viewed the site from his home. Whether to carry out such a visit would be a matter for the case officer to decide.
24. Mr X is concerned that his garden will be overlooked. The impact on privacy in gardens is a material consideration, but generally not one that carried a great deal of weight against others, such as the need for housing. Councils generally focus on the impact on habitable rooms and I can see that this did happen here. We are not able to say the Council should have given more weight to garden privacy, as this is a matter for the Council’s judgement and discretion.
25. The case officer report does say the separation distance at Mr X’s house is over 12 metres, but then in the next paragraph, it went on to say that separation distances vary between 16 and 25 metres.
26. The courts have made it clear that case officer reports need to be adequate, rather than perfect. They will be considered adequate if they show the Council considered the key issues and states what it made of them. There should be enough information to show what decision was made and the basis it was made on. To pass the threshold for our test of administrative fault, we need evidence to show the error was significant and had some real impact on the outcome.
27. I do not consider the discrepancy was of fundamental importance to the outcome of the Council’s decision and while the report might have been clearer, I do not consider this discrepancy amounts to fault.
28. My view on the issue of ground level difference is similar. The difference in question is about 0.5 metre, and given the distance and relationship Mr X’s home has with the new house at the side, I cannot say this would have made any difference to the outcome.
29. Mr X is concerned about protection of the existing hedge, but the Council has maintained control through its planning conditions. Mr X can report any breaches of control to the Council, which will then decide what action, if any, is necessary.
30. The Council considered the application plans, local and national planning policy, and the comments from the public and other consultees. The Council followed the decision-making process we would expect and so I find no fault.

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Final decision

31. I completed my investigation as there was no fault in the decision-making process.

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Investigator's decision on behalf of the Ombudsman