Summary: Mr Z complains the Council has failed to deal with a breach of planning control in the housing development behind his home and did not deal with his complaint properly. The Council has already apologised for the delay in its complaint response and has accepted there was fault in its planning report. We find this fault did not cause significant injustice. There was no fault in the way the Council dealt with a breach of planning control.

The complaint

1. Mr Z complains the Council has failed to deal with a breach of planning control in the housing development behind his home. He says one property is being built much closer to his house than approved, causing loss of privacy and daylight. He also complains the Council has not investigated his complaint properly, has refused to meet and ignored his concerns, causing him to engage a solicitor and a professional planning consultant. Mr Z says the situation has caused significant distress to him and his family.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 spoke to Mr Z about his complaint and considered the information he sent, including photographs of the site, the Council's response to my enquiries and:
• The Town and Country Planning Act 1990 ("the Act")
• The Town and Country Planning (Development Management Procedure) (England) Order 2015 ("the Regulations")
6. Part of Mr Z's complaint concerns the case officer’s report considered by the planning committee in 2018. The Ombudsman cannot investigate complaints about issues which complainants were aware of more than twelve months ago. This means I cannot investigate a complaint about the granting of planning permission in 2018, as Mr Z could have complained at the time. However, Mr Z only became aware of an error in the case officer's report in 2020. I have therefore used my discretion to consider this aspect of his complaint.
7. Mr Z 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

Planning permission

8. The Act gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. Councils must decide the application under their development plan unless any other material considerations suggest otherwise.
9. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as reduction in the value of a property. They include issues such as overlooking and privacy.
10. Councils' case officers need to consider the proposed development. The case officer's report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
11. A report should help show a council took proper account of key material planning considerations. The courts have held the report does not need to be perfect. Its intended audience is the parties to the application (the council and applicant) who are familiar with the issues. The report does not need to include every possible planning consideration, just the main, controversial issues.

Separation distances

12. Councils issue supplementary planning guidance on how they would normally make their decisions and how they generally apply planning policy. Often this guidance sets out separation distances between dwellings to protect against overshadowing and loss of privacy. A typical distance is 21 metres between directly facing habitable rooms (such as bedrooms and living rooms).
13. However, the Council does not have a planning policy which stipulates there must be a specific separation distance between properties.
14. The Council’s development plan includes a saved Gateshead Unitary Development Plan policy (DC2) which states planning permission will be granted for new development where it:
1. does not have an adverse impact on amenity or character of an area, and does not cause undue disturbance to nearby residents or conflict with other adjoining uses;
2. safeguards the enjoyment of light and privacy for existing residential properties;
3. ensures a high quality of design and amenity for existing and future residents;
4. is not within 50 metres, in the case of residential buildings, or 10 metres, in the case of residential gardens, of the boundary of a landfill site producing, or with the potential to produce, large volumes of methane gas unless, following investigation, the applicant can safeguard the future users or occupiers of the site.
15. Distances between properties are measured on the submitted application layout plan, supported by an assessment during the site visit.

Enforcement

16. Councils can take enforcement action if they find planning rules have been breached. A breach of planning control is defined as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
17. However, councils 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)

Complaint process

18. The Council has a three step complaint process. If complainants are dissatisfied with the first response, the complaint can be escalated to step two and investigated by a senior manager. The Council aims to respond within 20 working days. If this is not possible, it will inform the complainant. The final step is a review by the chief executive. The aim is to reply within 20 working days.

What happened

19. There has been much correspondence between Mr Z and the Council about this matter. It is not necessary for me to detail it all here. I have set out the key events.
20. In 2018 the Council granted planning permission for a new housing development behind Mr Z’s home. Works started on the site in 2020.
21. On 1 May 2020 Mr Z complained to the Council that the house being built behind his and his neighbour’s (Mr and Mrs Y) homes (plot C) was closer than approved. The Council dealt with this as a report of a potential breach of planning control.
22. A planning enforcement officer visited the site on 5 May 2020. The officer took photographs and measurements. The Council then replied to Mr Z. It said a breach of planning control had been identified.
23. The Council had found that the distance between the closest point of plot C (the rear offshoot) and the back of Mr Z’s original dwelling was 21.607 metres. The approved plans gave a distance of 22.6 metres. Plot C was therefore being built 1 metre closer than in the approved plans. The Council had asked the developer to move plot C to its correct position. The distance from plot C to Mr Z’s rear, single storey extension was 18.657 metres.
24. Mr Z remained concerned about the proximity of plot C. Jointly with Mr and Mrs Y he instructed a solicitor, asked an independent planning consultant to review the site and plans, and made a freedom of information request for all the documents relating to the development of plot C.
25. Mr Z’s solicitor wrote to the Council. He said the house on plot C was not being built in line with guidance on separation distances and asked for it to be moved to 22 metres from Mr Z’s extension.
26. The Council responded to the freedom of information request. In error it included correspondence between the Council and developer which noted there should be a 22.6 metre distance between plot C and Mr Z’s original dwelling.
27. The planning consultant wrote to the Council on 26 May 2020. He said the distances between Mr Z’s property and the newly aligned plot C fell significantly short of the distances set out in the case officer’s report to the planning committee in 2018. The case officer’s report had said:

"All rear to rear separation distances would exceed 21 metres; the closest relationship … would be 24.9 metres ..."

28. However, this did not take account of Mr Z’s extension containing habitable space. The consultant said there was a 21-metre minimum privacy distance and the Council “had confirmed it uses 22.6m as its minimum distance rule.”
29. The Council replied to the solicitor and consultant in June 2020. It said it did not have a policy specifying a minimum separation distance and it did not use a 22.6 metre minimum distance rule. The planning committee was aware of the extensions when it made its decision. Following enforcement plot C was now being built in accordance with the approved plans.
30. Mr Z remained dissatisfied and continued to correspond with the Council.
31. The Council asked a senior manager who was not part of the planning department to consider his complaint and sent its step two response on 23 September 2020. The Council apologised for the delay in responding. It said:
• There had been an error in the 2018 case officer’s report as it had incorrectly stated the closest distances.
• The actual separation distance between Mr Z’s extension and plot C was 19.73 metres (with an offset/stagger between habitable room windows).
• There was no error in the plans approved by the planning committee. Plot C was therefore now being built in accordance with the approved plans.
• The committee had been aware of the extensions following its site visit and, whilst the report contained an error, the Council considered the case officer’s report would still have concluded that the layout was appropriate. It therefore found that the planning decision was not “flawed by material inaccuracies”.
• The Council apologised and offered to meet the reasonable costs of appointing Mr Z’s professional advisers up to September 2020.
32. Mr Z remained dissatisfied and asked for a chief executive review. He said the Council had accepted there were potentially serious material inaccuracies in the planning decision.
33. The Council’s step three response was sent on 2 November 2020. It said:
• The planning application was considered in accordance with the policies and procedures of the Council and its constitution.
• The Council’s site specific and detailed guidance and development strategies did not include specific minimum separation distances.
• The Council accepted there had been an error in the 2018 planning committee report. However, the Committee had visited the site, received a very detailed report and updates in regard to the planning application. It heard representations from objectors, including about the separation distances between the development and the existing properties. The Committee was therefore aware of the residents’ concerns about the proximity of the new development and considered that it had been provided with enough information to enable it to make a decision on the planning application.
• The Committee had determined the separation distances on the approved plans were acceptable in planning terms and were consistent with the development plan. Officers considered that the committee’s decision would have remained the same even if there had been no error in the report.
• No errors in the approved plans had been identified. The Council was satisfied the onsite distance between plot C and Mr Z’s property were in accordance with the approved plans. There was therefore no further enforcement action the Council could take.
34. Mr Z complained to the Ombudsman. He said the Council had refused to meet with him, he had had to take time off work to prove there had been a breach of planning control, and the complaints process had not been impartial. The Council had also delayed responding to the freedom of information request. Mr Z considered plot C’s position breached national minimum distancing regulations and it must be repositioned.

My findings

35. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. It is not for me to determine whether the house on plot C is too close to Mr Z. My role is to determine whether there has been administrative fault in the way the Council made its decision.
36. Mr Z says the house on plot C has not been built in accordance with the approved plans. I have therefore first considered what was approved.
37. The plans submitted with the application in 2018 do not show Mr Z’s extension. This is normal practice as developers generally use Ordnance Survey maps and these do not always show house extensions. Developer's plans need to be accurate in relation to the development but not necessarily in relation to neighbouring properties. In addition, councils usually determine separation distances from original rear building lines, rather than the end of extensions. I therefore do not find there was any fault by the committee in approving plans which did not show neighbours’ extensions.
38. The Council has accepted there was an error in the 2018 case officer’s report in relation to the distances between the development and existing properties. This was fault.
39. I have carefully considered whether the committee’s decision would have been different if there had been no error in the report. When considering complaints, we may make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
40. The Council does not have a minimum separation distance, it therefore determines each application on its merits.
41. The case officer's report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered the impact on the amenity of existing properties. The report then assessed these matters and concluded the development would not cause any significant harm to the living conditions of existing or future occupiers in terms of loss of light, overshadowing or visual intrusion. There were no planning reasons to justify refusing the application.
42. Although the wrong separation distances were in the report, when granting planning permission, the Council is approving the plans that have been submitted. So although the officer’s report helps the committee reach a decision, it is not the report that is approved, but the submitted plans. This means the distance from plot C to the main rear elevation of Mr Z’s house that was approved was 22.6 metres, as set out in the plans.
43. The committee had visited the site and was aware of the extensions. It was aware of residents’ concerns about the proximity of the development. It decided the impact on Mr Z’s, or any of the other properties, did not give grounds for the Council to refuse the permission.
44. I am satisfied that, despite the fault in the report, the Council had enough information about the application and properly considered the relevant planning issues when reaching its decision. Separation distances of 18 metres or 19 metres are not unusual and the extension is single storey, reducing the impact on privacy. On the balance of probabilities therefore, I do not consider the planning outcome would have been any different if there had been no fault in the report. I consider it likely the Council would have approved the application.
45. I therefore find there was fault, but this did not cause the significant injustice Mr Z claims that plot C should have been built 24.9 metres or 22.6 metres from his extension.
46. I have gone on to consider the enforcement undertaken in summer 2020. Mr Z says the Council denied there was a breach and resisted visiting the site until forced to because he appointed a solicitor. I have seen that the Council considered Mr Z’s report of a possible breach of planning control. It visited the site, taking photographs and comparing the works in progress against the approved plans. It measured the elevation of the houses being built and found the house on plot C was not being built in accordance with the approved plans. It therefore asked the developer to move the house on plot C by 1 metre. I have seen no evidence of fault in the way it decided this.
47. In response to my enquiries, the Council sent a plan which showed that, following enforcement, the distance between the rear elevation of Mr Z’s original house and plot C is 22.6 metres. The distance between plot C and Mr Z’s extension is approximately 19.73 metres. This is in line with the approved plans, meaning the Council can take no further enforcement action as there is no breach of planning control.
48. There was fault by the Council when it delayed responding to Mr Z’s complaint. Mr Z says this was deliberate to enable building work to continue. I have reviewed the records and correspondence and have seen no evidence of this. The Council has already apologised for the delay and I am satisfied this is an appropriate remedy because an earlier response would not have made any difference to the building works and it is in line with the Ombudsman’s guidance. Mr Z disagrees with the Council’s responses, but there is no evidence that his correspondence was ignored.
49. Mr Z says the Council’s complaint process was not impartial and that it refused to meet him. An enforcement officer visited the site. A senior manager who was not part of the planning department considered the complaint at step two. The final step was a review by the chief executive. The Council was not required to meet Mr Z to discuss the complaint and followed its complaint policy. I have found no evidence of bias in the complaint responses. There is no fault.
50. The Information Commissioner’s Office is better placed to deal with complaints about freedom of information requests.

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Final decision

51. There was fault by the Council but this did not cause significant injustice requiring further remedy. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman