Summary: Mr X complained about the Council’s decision to approve a planning application for development on his neighbour’s land. There was some fault in the way the decision was made that the Council agreed to remedy.

The complaint

1. Mr X complained about the Council’s decision to approve his neighbour’s planning application. Mr X said:
• he did not receive a notification letter about the application, so had no opportunity to comment on it;
• the approval did not meet the Council’s guidance because the building now extends beyond his front building line;
• he now feels it is unsafe to allow his children to play outside, as an extension and high fence restrict his views from his home;
• visitors cannot easily find his home because it is hidden behind the development; and
• the building has been built slightly larger than was approved.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 I took account of their comments 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 from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. 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.
11. 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.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
13. Councils have a statutory duty to consider the potential impact of crime and disorder when carrying out their functions, including their planning function. This does not mean that every planning case officer report must refer to these issues. We would only expect councils to refer to crime and disorder in a planning decision when they are relevant and/or is engaged by the process. This might happen when:
• a consultee raises an issue about crime and disorder before a decision is made; or
• when crime and disorder issues are clearly relevant because of the nature of the proposal.
14. Regulations set out the minimum requirements for how councils publicise planning applications.
15. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
16. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
17. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
18. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

What happened

19. Mr X’s neighbour submitted a planning application for two extensions to their home and a high fence along the boundary. Mr X lives at the opposite end of the terrace of houses as the neighbour. He does not share a boundary with the application site.
20. The front door of the neighbour’s home is on the side gable of the terrace. The front of Mr X’s home has a different building line, so the gable end of his home is at the side of his house.
21. A planning case officer considered the application and wrote a report. The case officer report included:
• a description of the proposal and site;
• comments from neighbours and other consultees, including concerns about crime and anti-social behaviour;
• a summary of planning policy and guidance considered relevant;
• an appraisal of the planning considerations considered relevant, including design issues and the impact on residential amenities; and
• the officer’s recommendation to approve the application, subject to planning conditions.
22. The case officer said that neighbour comments about anti-social behaviour and criminal activity exacerbated by the fence creating a hidden area, was not a planning consideration. The officer said that problems might occur whether the development is approved or not and issues of safety and unlawful use were for the police to deal with, not the planning process.

My findings

23. 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.
24. Mr X did not object to the complaint or complain about the impact the development might have on crime, however another neighbour did comment on this issue. We have discretion to consider matters that come to our attention during the course of an investigation.
25. The planning case officer said that the impact of development on crime and anti-social behaviour is not a planning consideration. This is fault. The Council has a duty to consider the impact its functions and decisions will have on crime and anti-social behaviour. We would expect the Council to have set out its views on problems that are known or likely to exist.
26. When we find fault in how a planning decision was made, we must determine whether it made a difference to the outcome. Mr X is likely to be disappointed the Council did not consider this issue, and he might now wonder whether the outcome would have been different.
27. I cannot say it is likely the outcome would have been any different because of the fault I have found. This is because much of what was built could have been built without planning permission from the Council and plants and bushes planted in the applicant’s garden might have had much the same impact as the extensions and fence.
28. On the issues Mr X raised, I find no fault, and my reasons are as follows:
• Mr X complained he was not consulted, but the Council was not obliged to consult him as he does not share a boundary with the site.
• Mr X said the Council should have followed its design guidance, but guidance does not create binding rules that must be followed. The guidance sets out general advice on how decisions are made in commonly found situations. The layout here, with two different front building lines on the same terrace is not typical and I cannot say the Council should have decided to refuse the application. In any event, the Council did consider the design guidance before it made its decision.
• Mr X said he now feels unsafe allowing his children to play outside because his views are obstructed. He also said visitors now find it difficult to find his home because his home is hidden behind an extension and fence. We cannot control land we do not own, and we cannot expect to have open views over another’s land. I cannot say it was fault for the Council to consider where Mr X’s children play when away from his home and garden, or that his home might be more difficult for visitors to find.
• Mr X said the extension is built slight larger than was approved. If he has not done so already, he can report this to the Council’s planning enforcement officers. Mr X said the difference is a small change from what was approved. Planning enforcement is discretionary, and so even if a breach of control is found, councils only take action if it is a proportionate response and causes significant harm to the public.

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Agreed action

29. To remedy the fault I have found, the Council has agreed to:
• apologise to Mr X for the uncertainty caused by its failure to address all the material planning considerations before it made its decision; and
• remind its planning officers of its duty under section 17 of the Crime and Disorder Act 1989.
30. The Council will carry out this remedy and confirm to the Ombudsman that it has done so within four weeks of our final decision on this complaint.

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Final decision

31. There was fault in the way the Council made its decision. I completed my investigation because the Council agreed to my findings and recommendation.

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Investigator's decision on behalf of the Ombudsman