Summary: Mr and Mrs X complained about the Council’s decision to approve a planning application and its failure to enforce planning controls after construction work began. There was no fault in the way the Council made its planning and enforcement decisions.

The complaint

1. Mr and Mrs X complained about the Council’s decision to approve a planning application for development on land at the side of their home. Mr and Mrs X say their privacy, light and outlook will be affected, particular in their dining room, which has a window at the side facing the new development.
2. Mr and Mrs X also complained that the Council has failed to enforce planning conditions since building work began.

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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 Mrs 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. I have also discussed the complaint with a planning enforcement officer and read emails between the Council and complainants.
6. I gave Mr and Mrs 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 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. 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.
12. Councils sometimes impose conditions requiring construction management plans. These are usually imposed on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
13. While construction management conditions may help lessen the impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
14. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.
15. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
16. Councils may decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.

Background

17. The owner of land next to Mr and Mrs X submitted a planning application to demolish a building and build houses. The application was considered by a planning case officer, who wrote a report. The case officer’s report included:
• a description of the proposal and site;
• comments from neighbours and other consultees, including the highways authority;
• a summary of 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.
18. The case officer’s report referred to Mr and Mrs X’s concerns and the side window to their home. The case officer accepted that the building would be very close and would have some impact on their amenities, but this was not enough to justify a refusal.
19. The Council approved the application subject to planning conditions, including one requiring a construction management plan.
20. After construction work began, Mr and Mrs X complained there had been breaches of planning conditions, including:
• the new building was not the same design, dimensions or in the same location as was approved in the plans;
• a window facing their property should be non-opening;
• construction work was creating dust;
• construction vehicles were parked on the pavement and highway;
21. Mr and Mrs X also complained that:
• the case officer report had specified the width of the carriageway but had wrongly included the width of a vehicle parking space in its measurement;
• the builder had excavated too close to the boundary wall without their permission; and
• the Council had not dealt with their complaint in accordance with its published procedure.
22. The Council’s planning enforcement officer said that he had visited the site to investigate these and similar allegations many times but had found no breach of planning control. The Council shared copies of its emails with Mr and Mrs X in which it explained what it had done to investigate their concerns and why it had not found breaches of planning control.
23. A planning manager said that:
• The reference in the case officer’s report to the width of the carriageway would include any area in which a vehicle could park. This is because the normal meaning of carriageway includes any area of a highway between pavement kerbs over which vehicles have access.
• The condition controlling the window at the side of the new house nearest Mr and Mrs X states that it should be ‘non-opening or top opening’, and it is top opening, so there is no breach of condition.
• There are some design details that are either not shown on the plans or are different to those shown on the plans. The relate to things like guttering or guttering support. As the changes are slight, the Council considers them to be de minimis.
• The construction management plan had required on-site parking space, but it was recognised that the space they occupied would be built over as construction continued. The plan allowed for on-street parking for when on-site parking was no longer available. Delivery vehicles may have parked on the pavement on some occasions, but that was a matter for the police, not the planning authority.

My findings

24. We are not a planning appeal body and third parties, such as those who live next to planning application sites, do not have a right of appeal on the judgments officers and members of councils make when carrying out their functions.
25. 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.
26. Before the Council made its decision to approve the planning application, it considered comments from the public and other consultees, the application plans, planning policy and guidance and the case officer’s recommendations. This is the decision making process we expect and so I find no fault.
27. Before the Council made its planning enforcement decisions, it considered Mr and Mrs X’s allegations, its powers and what it found on site. It has followed the decision making process we expect and so I find no fault.
28. Mr and Mrs X also raised concerns that are outside the Council’s control. These are:
• alleged unlawful parking on the pavement, which would be a matter for the police; and
• digging near to their boundary, which is a private matter between the complainants and the builder.

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Final decision

29. I completed my investigation as there was no fault in the way the Council made its decisions.

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Investigator's decision on behalf of the Ombudsman