Summary: Mr X complained about the Council’s decision to approve development on land behind his home. There was some fault in the way the Council made its decision because some of the information relied upon was not shown on the Council’s website. The Council has agreed to apologise to Mr X for the confusion it caused him and to correct its records.

The complaint

1. Mr X complained about the Council’s planning decision to approve houses on land behind his home.
2. Mr X said that his amenity is affected and that access arrangements for the site could be unsafe.

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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. We must also consider whether any fault we find 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)
5. We may decide not to start or continue with an investigation, or any part of a complaint, if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. 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.
7. I gave Mr 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

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
13. 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.
14. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
15. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.

Openness in local government

16. The Openness of Local Government Bodies Regulations 2014 require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made.
17. The 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.
18. The 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.
19. The written records should include the following information:
• the date the decision was made;
• the record of the decision and its reasons;
• details alternative options, if any were considered and rejected; and
• a record of any relevant conflict of interest.

Background

20. Mr X lives near a site that has had planning permission to build houses. The house nearest him is over 23 metres from the original building line at the rear of his home.
21. The application was considered by a case officer. The case officer wrote a report that included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant 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.
22. The case officer’s report shows that the impact on neighbouring amenity was considered. The report refers to the Council’s policy guidance, which would normally expect 21 metres between facing habitable rooms, and 13 metres between habitable rooms and blank walls.
23. The case officer’s report refers to some existing houses that have less than these distances, but goes on to explain why, on this site, he considers the layout acceptable. Mr X’s home is not referred to, but I have measured the separation distance on the layout plan using a measuring tool on the Council’s website. I found the separation distance between the rear building line to be more than 23 metres. Mr X told me that he has a rear extension which brings him closer to the new houses.
24. Mr X said that the Council’s Highway Authority (HA) officers had concerns about access to the site, particularly on how refuse lorries might enter and exit it safely.
25. The report states that the HA had no objections to the application, subject to the inclusion of conditions it recommended.
26. The Council publishes its decisions and background documents on its website. The comments from the HA are not included with other responses from consultees.
27. The case officer explained he exchanged emails with a HA officer, who was eventually satisfied with the plans, providing the developer controlled the land necessary to ensure safe access and egress to and from the site. The case officer shared these emails with me, to confirm this and stated that the HA officer’s final comments related to the highway access layout plan the Council approved.

My findings

28. We are not a planning appeal body. Our role is to review the process by which planning decisions are made.
29. We need evidence to show it is likely there was fault in the decision-making process that caused the individual complainant a significant injustice by the Council’s actions.
30. Mr X complained about how the development affects his amenities. Mr X has more distance than is normally expected to ensure adequate protection of amenities, such as privacy, loss of light and noise disturbance. Mr X said he has a rear extension to his home, but councils normally measure separation distances from original building lines.
31. For these reasons, I cannot say Mr X was caused an injustice by the development itself, because he has more separation distance than would normally be considered necessary to protect his amenities.
32. Mr X also complained about access arrangements from the site. Mr X said the correspondence he had seen had not shown that the HA was satisfied and so he did not understand how the Council had made its decision.
33. We would expect the Council’s planning decision and relevant background papers to be included on its website. Planning decisions are carried out openly and the documents, plans and reports that show how the decision was made need to be accessible.
34. The HA comments on the proposed plans are not available on the Council’s website and this is fault, and it has caused Mr X unnecessary confusion. The Council should take action to remedy this part of the complaint.

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Agreed action

35. To remedy the injustice caused by the fault I have found, the Council has agreed to:
• apologise to Mr X for the confusion caused by its failure to publish HA comments on its website along with other consultation responses; and
• correct its record and place a comment on the development plans from the HA on its website, so the public can see and understand how the Council made its decision.
36. This remedy will be carried out within four weeks from the date of this decision.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman