Summary: Ms X and Ms Y complain about the Council’s decision to grant planning permission for a new business development close to their homes. We will not investigate. Part of the complaint is late, and we have not seen evidence of fault in the way the Council made its decisions to approve the planning applications.

The complaint

1. The complainants, who I shall call Ms X and Ms Y, says the Council failed to consider the impact of a development on their homes when it granted planning permission.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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)

Back to top

How I considered this complaint

5. I have considered the information Ms X have provided. I have also considered the Council’s information about the planning application which is available on the Council’s website.
6. Ms X commented on the draft version of this decision.

Back to top

What I found

Planning law

7. All decisions on planning applications must be made according to a council’s development plan unless material considerations show otherwise.
8. A council planning officer will normally visit the application site and write a report assessing the proposed development. The report will refer to relevant planning policies and the planning history of the site; summarise peoples’ comments; and consider the main planning issues for deciding the application. The assessment often involves the planning officer in balancing and weighing the planning issues and judging the merits of the proposed development. The report usually ends with a recommendation to grant or refuse planning permission.
9. A senior planning officer will consider most reports, but some go to the council’s planning committee for councillors to decide the application. The senior officer (or councillors at committee) may disagree with the case officer’s recommendation because it is for the decision maker to decide the weight given to any material consideration when deciding a planning application. Development usually gets planning permission if the council considers it is in line with planning policy and finds no planning reason(s) of enough weight to justify a refusal.
10. When considering planning applications, councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.
11. Councils have a statutory duty to publicise applications and to consider representations (either for or against the application) which people make. But that is not the same thing as consulting with the public.
12. The volume or strength of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission. However, councils must consider any material planning considerations raised in comments from local people.

What happened

First planning application

13. In 2018 the Council received a planning application for a site close to Ms X & Ms Y’s homes. The plans were for a new office building, refurbishment of existing buildings and new external stairs and windows.
14. The Council says it erected three site notices, therefore complying with the statutory requirement for publicising the application.
15. Ms X & Ms Y says they did not see the site notices, so they did not object to the proposal.
16. A planning officer visited the site and prepared a report on the proposal. The report considers the impact of the proposed scheme on nearby property, including the complainant’s homes.
17. Having considered the proposal and impacts, the planning officer decided that overall, subject to conditions, the impact of the development would not cause significant loss of residential amenity. He recommended approval.
18. A senior officer agreed with the recommendation and the application was approved in February 2019, according to the Council’s scheme of delegation.
19. Ms X and Ms Y complained to the Council. In October 2019, the Council provided its final response which included details of their right to ask the Ombudsman to investigate their complaint.
20. The law says a complaint must be made to the Ombudsman within 12 months of the person becoming aware of the matter. We also require the complainant to have exhausted the council’s complaints procedure.
21. In this case the complainants were aware that planning permission had been granted in 2019 and they exhausted the Council’s complaints procedure in October. The Council advised of their right to complain to the Ombudsman at that time. Their complaint about the granting of planning permission in 2019 is therefore late.
22. Having reviewed the planning information, I have seen no evidence of fault in the planning process leading to the Council’s decision to approve the application. I therefore will not exercise discretion and investigate this part of the complaint as it is late.

Subsequent planning application

23. In 2020, the developer applied to the Council to vary a condition attached to the previous planning permission. The proposed changes were to:
• reduce a boundary wall height
• reduce the pitch height of the boundary studio roof; and
• revise and amend the design for an external staircase and screening
24. Ms X and Ms Y objected to the application saying:
• the design of the external staircase brings it closer to residential properties and would impact on resident’s privacy and security; and
• any extra height to the existing wall will impact on access to natural light and impact on resident’s quality of life and health.
25. The case officer prepared a report on the scheme. This includes the objections received.
26. The report shows the case officer considered the objections. It notes the proposal was to reduce the proposed increase to the height of the wall. And reduce the pitch and overall height of the studios behind the boundary wall. Both of which were permitted under the previous development.
27. As the new application is for reduction in height of the wall and the studio from the height permitted in the previous application, the case officer concluded this would not have a detrimental impact on neighbouring properties.
28. The officer also considered the proposed change and location of the external staircase. The report acknowledges the staircase will be closer to the rear wall of the existing houses. However, the officer considered that because of the style of the screening and position of the staircase it would not cause significant overlooking or overshadowing. Again, the case was approved under the scheme of delegation.
29. We look at procedural fault in how decisions have been made and do not consider planning appeals. I cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
30. The case officer’s report provides a detailed assessment of the plans and the impact of the proposals on the complainant’s residential amenity before recommending approval. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so including the objections from Ms X & Ms Y. I have seen no evidence of fault in the way the Council reached its decision to grant planning permission for the development.
31. Having reviewed the planning information, I have seen no evidence of fault in the planning process leading to the Council’s decision to approve the application.

Possible breach of planning control

32. Ms X & Ms Y have recently reported to the Council the developer has breached planning control. They say the external staircase screening seems lower than anticipated and will not protect their privacy.
33. The planning permission requires screening for the staircase is installed before the building is occupied.
34. The Council has confirmed the building is not yet occupied. It says as soon as the screen is installed, or the site is occupied, an officer will inspect the work and an enforcement case will be raised if there are any concerns that it does not comply with the condition.

Back to top

Final decision

35. I will not investigate this complaint because:
• any complaint about the decision to grant planning permission in 2019 is too late and I have not seen any good reason to exercise discretion
• I have seen not evidence of fault in the way the Council considered the subsequent planning application to amend the original permitted development; and
• screening to the external staircase must be installed before the building is occupied. A breach of planning control will not exist until the building is occupied without screening.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman