Summary: Mr X complained about the Council’s decisions relating to a planning approval of a large extension. Mr X said the new extension affects his privacy in his garden. There was no fault in the decision making processes.

The complaint

1. Mr X complained the Council failed to:
• take account of his objections to his neighbour’s planning application;
• consult him on an amendment to a plan, which added a ‘Juliet’ balcony to a large first floor window; and
• protect his privacy, as its enforcement officer told the neighbour about his complaint.
2. Mr X said that the new extension to his neighbour’s house affects his privacy, particularly in his rear garden.

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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 my enquiries. I have also considered documents from its planning files, including the plans and the decision letter.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision but I did not receive any responses.

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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. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Decisions made by officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made.
12. The 2014 regulations apply to a decision that has been delegated to an officer, if it:
• grants a permission or licence;
• affects the rights of an individual; or
• awards a contract or incurs an expense that materially affects the council’s financial position.
13. The 2014 regulations require that any such decision should be made available to the public:
• at the council offices;
• on the council’s website, if it has one; and
• by any other means the council considers appropriate.
14. The written records should include the following information:
• the date the decision was made;
• the record of the decision, its reasons and the background papers relied on;
• details of alternative options, if any considered and rejected; and
• a record of any relevant conflict of interest.
15. We normally expect to find evidence of consideration of the key material issues, including reasons for decisions, in the planning case officer’s report, which is written to advise the decision-making body or individual.
16. We accept that delegated decisions might be dealt with differently, as their target audience is a professional planner, not a member of the planning committee. However, delegated reports still need to demonstrate the core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated.
17. The purpose of the 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.
18. An explanation of what happened that is given after the events, either in a complaint response or during our investigations, may provide relevant evidence, but it will not necessarily prove the Council acted without fault. This is because we need evidence that shows the Council exercised its discretion properly at the time its decision was made.
19. 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.
20. Planning enforcement investigations and many of the details are not available to the public. Councils rely on the public to provide evidence that helps identify breaches of control, and they must take great care to protect the identity of individuals, including complainants.

What happened

21. Mr X’s neighbour submitted a planning application to build a large extension. The plans included a large, rear facing window, that looked towards the side of Mr X’s house and his rear garden.
22. Mr X wanted to comment on the application as he felt his privacy would be affected by the new development. Mr X said that he could not post his comments through the Council’s website portal, as there were problems with it. Instead, he printed a letter and delivered it by hand to the Council’s offices. Mr X did not get a receipt to show the letter was delivered.
23. The neighbour sought to amend the plan, by replacing the large window with a glass door and Juliet balcony. The Council said it did not re-publicise the changes, because in its view, they made no significant difference to its judgement.
24. The Council approved the application, subject to conditions, one of which approved the amended plan. In the ‘Informatives’ section of the decision notice, the Council said that the proposal accords with the principle of development and by nature of its design, mass, form and siting, it was acceptable in respect of visual and residential amenity.
25. There was no separate case officer report, and the Council said that its reasons and officer’s view were included in the ‘Informatives’ section of the decision statement.
26. Mr X complained to the Council’s enforcement officers, that the building was higher than approved in plans and that demolition of the original dwelling had been excessive. An enforcement officer visited the site but found no evidence of a breach of planning control.

My findings

27. 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 if we find it, we decide whether it caused an injustice to the complainant.
28. Before it made its planning decision, the Council took account of the plans and other material considerations, including the impact on neighbouring amenities. There was no case officer report, but there is sufficient information in the decision statement to show these issues were considered.
29. Mr X complained the Council did not take account of his objections. The Council said it did not receive Mr X’s objection. I have no evidence to show Mr X’s comments were received, so I find no fault in relation to this part of his complaint.
30. Mr X complained about the Council’s decision to approve amended plans without consulting him. I have no evidence to show the Council was aware of Mr X’s original concerns, and so I cannot show it should have considered whether he might want to raise further objections.
31. Mr X made an enforcement complaint, which the Council investigated. I read the Council’s enforcement report but cannot share it with Mr X as it contains third party information.
32. The evidence shows that before it made its enforcement decision, the Council took account of Mr X’s allegation, its enforcement powers and what it found during its investigation. There is no evidence of fault in the decision-making process. Also, I have no evidence to show the Council informed Mr X’s neighbour about his complaint.

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Final decision

33. I completed my investigation as I found no fault in the decision-making process.

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Investigator's decision on behalf of the Ombudsman