Summary: Mr D complains the Council failed to properly consider a planning application or his reports about whether the development was built in accordance with the approved plans. Mr D says he suffers from an overbearing development and unacceptable levels of overlooking. We have found no fault in the Council’s consideration of the application or Mr D’s reports but there was undue delay in its complaint responses. We consider the agreed action of an apology and review of procedure to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr D, complains the Council failed to properly consider a planning application to replace an existing bungalow with a two-storey house next to his property. In particular, Mr D says the Council did not properly consider the impact on his privacy. Mr D also says the Council did not properly consider or take appropriate action in response to his concerns about whether the development was built in accordance with the approved plans.
2. Mr D says because of the Council’s fault, he suffers from an overbearing development and suffers unacceptable levels of overlooking to his property.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault 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)
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)
5. 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

6. I read the papers provided by Mr D and discussed the complaint with him. I have considered some information from the Council and provided a copy of this after removing third party details to Mr D. I have explained my draft decision to Mr D and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Planning applications

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
9. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Planning enforcement

11. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
12. Section171A of the Town and Country Planning Act 1990 (the Act) provides that 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.

Key events

Consideration of planning application

13. The Council received a planning application to replace an existing bungalow and garage with a two storey house and garage. Mr D’s property is a bungalow next to the development site.
14. Mr D made representations to the Council about the application which included his objections about the replacement of a bungalow with a house, a large property being out of character for the area, being too close to his boundary and issues of overshadowing, loss of light and outlook.
15. The case officer’s report for the application set out the material planning considerations and provided a summary of the representations received which included the objections received from Mr D. The case officer provided a detailed assessment of the above and referred directly to Mr D’s property and the impact in terms of overlooking, loss of light and whether it would be overbearing. It was noted that in terms of loss of light to some windows a 2 metre fence could already be erected (under permitted development rights) which would impact light levels. In conclusion, the case officer considered there would be an impact on Mr D’s residential amenity but that it was not significant enough to warrant refusal. The Council granted planning permission subject to conditions in March 2019.
16. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
17. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so. I have seen no evidence of fault in the way the Council reached its decision to grant planning permission for the development.

Consideration of subsequent reports

18. Mr D contacted the Council in November 2019 to say the windows of the new development overlooked his living room windows. The Council responded to Mr D to note that the approved plans included a 1.8 metre boundary fence which would screen any such overlooking. Mr D said he was unhappy as the fence was not permanent and it did not cover the complete height of the window and suggested the development was higher than permitted. The Council confirmed in early December that the landscaping condition required the fence to be retained and maintained in this location and it generally considered a fence of 1.8 metres was enough to provide adequate screening.
19. Mr D contacted the Council again in November 2020 to report the fence height of the development was under the required 1.8 metres by approximately 15 centimetres which allowed overlooking to his kitchen and living room. The Council visited the site in mid-November and photographed the fence and measured the fence as being 1.8 metres high from ground level. The photograph shows a small difference in the ground level between the two properties and that the top of the windows in Mr D’s property were visible. The case officer noted they could not view into Mr D’s property from the development. The Council sent a holding reply to Mr D. Mr D responded to say the problem had been caused as his neighbour had raised the ground level around their property since his previous contact with the Council.
20. The Council confirmed in mid-November that following its site visit where it measured the fence at various points it had found the fence was the correct height of 1.8 metres and was in accordance with the approved landscaping plan. The Council confirmed there was no breach of planning control and it would close the case. Mr D replied to say the height on his side was only 1.65 metres and this allowed overlooking to his property.
21. The Council further responded to Mr D to confirm it considered the fence was built in accordance with the approved plans. The Council also explained that it did not consider it would be expedient to take enforcement action even if there was a breach in these circumstances given the level of planning harm. The Council further explained that the original proposals had included gravel alongside the development next to Mr D‘s boundary which would mean no change in levels and a 1.8 metre fence would be sufficient. This surface treatment was changed to paving when the applicant submitted details to discharge the landscaping condition which the Council considered to be acceptable and was approved. This meant the fence was 1.8 metres from ground level rather than the top of the paving. The Council noted that once the development was substantially complete it would benefit from permitted development rights which would include hard surfacing. The Council confirmed it did not propose enforcement action about the boundary treatment.
22. I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to Mr D’s reports. When deciding whether enforcement action would be appropriate, the test is whether, in the interests of public amenity, enforcement action would be expedient. In effect an authority applies two tests: the ‘amenity’ test and the ‘expediency’ test. Firstly, who or what is harmed by the development and secondly, if the breach does cause harm, consideration of whether it is expedient to take action. Councils have power to enforce but they have no duty to do so. Moreover, if a council decides that enforcement action is appropriate, it is obliged to follow government guidance which says that any action it takes should be proportionate and commensurate with the breach of control to which it relates.
23. The Council has provided evidence that it responded to Mr D’s reports of alleged breaches of planning control at the site. The Council visited the site and provided cogent reasons for its decision not to take formal enforcement action. I have seen no evidence of undue delay or other fault that would allow me to question the Council’s decision. It is appreciated that Mr D would have preferred the Council to take different action but this is not in itself evidence of fault.

Complaint handling

24. Mr D complained to the Council in January 2020 about its consideration of the original planning application and sent a reminder in February. The Council responded at the first stage of complaints procedure in May and apologised for the delay. I note the delay between Mr D’s complaint in January and the Council’s response in May and that there did not appear to be a holding reply during this period. This is fault but I consider the apology already provided by the Council to Mr D provides a suitable remedy and the Ombudsman would not seek more.
25. Mr D contacted the Council in August after the windows had been fitted at the development. Mr D noted the site visit during the Council’s consideration of the planning application was before the development was built and he considered the Council should have required a 2 metre fence. Mr D provided a photograph of the fence and the top of the window overlooking his property.
26. The Council failed to provide a response to Mr D’s contact in August 2020 which referred directly to its stage one response in May.
27. Mr D contacted the Ombudsman about his complaint in January 2021. We asked the Council to complete its complaint procedure in February.
28. The Council provided Mr D with a detailed response at the final stage of its complaints procedure in March.
29. The Council’s failure to provide a reply to Mr D’s August 2020 correspondence or ensure the matter was escalated to the final stage of the Council’s complaint procedure at that time was fault which I consider requires a further remedy.

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Agreed action

30. The Council will:
1. write to Mr D to apologise for its failure to reply to his August 2020 correspondence or escalate his complaint at that time within one month of my final decision; and
2. review its procedure and staff training to ensure complaint correspondence is treated in line with its complaints procedure within three months of my final decision.

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Final decision

31. I have completed my investigation as I have found fault but consider the agreed action above is enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman