Summary: Mr B complains about the Council’s decision to approve planning permission for a development in the garden of a neighbouring property. There was no fault with the way the Council reached its decision.

The complaint

1. Mr B complains the Council wrongly approved planning permission for a development in his neighbour’s garden. He says the Council relied on the wrong policies and definitions to justify its decision.
2. Mr B says the development will affect his amenity, privacy, and enjoyment of his garden.

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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 considered the information from Mr B. I made enquiries with the Council and considered its response with relevant law and guidance.
7. Mr B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

Law and guidance

Planning permission

8. Planning permission is required for the development of land (including its material change of use).
9. Planning permission may be granted subject to conditions relating to the development and use of land.
10. Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
11. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.

Permitted development

12. Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council.
13. Each type of permitted development right has certain conditions and limitations. If a development does not meet all the relevant criteria then a planning application will be required.
14. For some types of permitted development rights it may be necessary to obtain ‘prior approval’ from the council before carrying out permitted development.

Decision making and material considerations

15. Material considerations relate to the use and development of land in the public interest. It is not about private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
16. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
17. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

18. Mr B’s neighbour applied for planning permission for a development in their back garden.
19. The Council considered the application and asked the applicants for some additional information about the size, use and distance from neighbouring properties.
20. There were some objections from neighbours. These were mainly about the size of the proposed development and its impact on the neighbour’s amenity/ privacy.
21. There were also comments received from the Parish Council, Council Highways department, Environmental Health and Tree and Countryside consultant.
22. Planning permission was approved with conditions. One of the conditions was about the developments use. The ancillary occupation condition means the development cannot be occupied as a separate and un-associated unit of accommodation or sold or leased separately.
23. Mr B complained to the Council about its decision. The Council responded at stage one and two of its complaint process.
24. Mr B remained unhappy with the Councils response and complained to us.
25. In response to our enquires the Councils said:
• Only the top section of the windows proposed would be visible over the fence and the existing boundary treatment would obstruct clear views to the neighbouring properties windows and garden.
• The distance involved from the proposal to the rear elevation, approximately 11 metres, is considered sufficient to avoid unacceptable window to window overlooking.
• The scale of the proposal is considered to not have a significantly overbearing impact.
• The proposal is not considered to break rules of overbearing or loss of light.
• The proposal is smaller than the existing dwelling, contained largely behind it and not visible from the public realm and therefore it is not considered the proposal is not disproportionate in size.
• It is important to note that an extension of up to four metres in depth could be erected in this location under permitted development. An extension of up to eight metres in depth could be erected with a prior approval application under the same regulations. This fallback position is considered to be a material consideration in the determination of the application.
• The proposal has been considered as an annexe, not an independent dwelling house. It is tied to the main dwelling house by a planning condition.
• It is agreed an independent dwelling in this location would not be acceptable due to the impact on the amenities of the existing dwelling and future occupants. Not in terms of its impact on the neighbouring property.

My findings

26. There was no fault in the way the Council reached its decision to grant planning permission.
27. The Council considered the issues of overlooking and amenity of neighbours when determining the application. The assessment is set out in the officer report. It explained why they considered the impact on Mr B's property to be acceptable. The Councils response to my enquiries provided clarification on the specific points Mr B raised in his complaint.
28. The Council followed the process we would expect and was entitled to make the decision it has.
29. Whilst I understand Mr B is unhappy with the Council’s decision, I have found no fault in the way the Council reached its decision. I have no grounds to question the professional judgement of the planning officer.

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Final decision

30. I do not find fault with the Council.

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Investigator's decision on behalf of the Ombudsman