Summary: There is no evidence of fault in the way the Council considered a planning application or planning enforcement complaint. The complaint is not upheld.

The complaint

1. Mr and Mrs X say the Council has granted planning permission for an extension to their neighbour’s property which will impact on their privacy and light. They also say the two-storey extension will be overbearing when viewed from their property.
2. Mr and Mrs X also say they have raised complaints about noise and dust from construction work but the Council have not responded or investigated their concerns.
3. Mr and Mrs X say their neighbour has now built an outbuilding in their garden as well as digging concrete pits. Mr and Mrs X say they believe these are for septic tanks and have raised this with the Council but nothing has been done.
4. Mr and Mrs X have raised concerns about damage to tree roots, their foundations, their boundary wall and drainage.
5. Mr and Mrs X say the whole situation has caused them significant distress.

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The Ombudsman’s role and powers

6. 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)
7. 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

8. I considered the information Mr and Mrs X have provided to the Ombudsman.
9. I have considered information about the planning application available on the Council’s website and the Council’s response to my enquiries. This includes information about investigations into Mr and Mrs X’s complaints.
10. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning law

11. All decisions on planning applications must be made in accordance with a council’s development plan unless material considerations indicate otherwise.
12. 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.
13. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

What happened

14. Mr and Mrs X’s neighbours applied for planning permission to build a two-storey side extension, single storey rear extension, rear dormer extension and a new basement extension. Plans also included new rooflights and windows. They and their neighbour live in a Conservation Area.
15. The Council granted planning permission. The decision was delegated to officers and not made by the Council’s planning committee (councillors). While there was a suggestion councillors may call in and decide the application, this did not happen. The Council explained in its complaint response of December 2020 this was because referrals are made to the committee on request from two councillors and if the request is agreed by the Committee Chair. The Chair did not agree to the referral so it did not proceed to committee.
16. Mr and Mrs X wanted an explanation from the Chair. I asked the Council why the Chair decided not to call the application in. The Council says a decision is primarily based on planning policy merit and consideration and the Chair’s decision in this case was that there were no planning policy considerations to be decided at a public meeting. I acknowledge no documents have been provided to evidence this decision and the complainants consider this is not transparent. The Council’s view was that this was a simple application. There is no basis for me to challenge that professional judgment.
17. The Council’s officer report found the extensions and other aspects of the plans would have no impact on Mr and Mrs X’s property or the Conservation Area. I have considered the officer’s report and can see no evidence of fault, the officer has considered the relevant policies, objections and material planning matters.
18. Mr and Mrs X disagree with the process of what reports were sought and the detail required. In particular, Mr and Mrs X are unhappy no basement impact assessment (BIA) was required from the applicant. I asked the Council when and why this decision was made. The Council told me when the application was submitted in spring 2019 the Council decided because of the size/scale of the basement a BIA was not required. The Council acknowledges this could have been addressed explicitly in the officer’s report and has told me that future reports will do so.
19. While Mr and Mrs X disagree with the Officer’s view on overbearing, outlook and privacy, the Ombudsman cannot question a decision just because the complainant disagrees with it. As I have found no fault in the decision process there is no basis for me to question the professional judgment reached.
20. Mr and Mrs X raised issues about flood risk, habitable rooms, light, ground levels, impact of light wells, a new obscured window and basement impact. I am satisfied the Council has properly considered all these matters and explained the reasoning for its views to Mr and Mrs X in detail in its response to their complaint. There is no basis for the Ombudsman to intervene in the professional views of officers where there is no evidence of administrative fault.
21. Mr and Mrs X’s view is that the Council should have sought more reports about flooding for example from a sewerage engineer. The planning file shows the Planning Officer consulted with the Flood Risk Management and Urban Drainage team in summer 2019 who advised the property was in Flood Risk Zone 1, which was low risk. No objections were raised to the application by the Flood Risk Team. There is no evidence the planning officer did not consult appropriately. It was a professional judgment for the Council what evidence it needed to make a planning decision.
22. Mr and Mrs X refer to a difference between a pre application enquiry and the planning application in terms of the separation distance between the neighbour’s extension and their boundary. This changed from 1 metre to 0.85 metres.
23. The pre-planning enquiry is just that, a request for a professional view about a proposed development, it is not a formal planning decision. The officer’s report refers to the shorter distance specified in the planning application, so this was considered in its decision. The Council considered the shorter distance to the boundary was acceptable in planning terms.
24. Mr and Mrs X refer to an error in the Council documents which state that there was an existing basement in the development property. The Officer’s report refers to the basement being the first in the road. There is no evidence the officer’s decision was based on incorrect information or plans. The Officer considered the proposed lightwells would not be particularly visible; the character and appearance of the dwelling not unduly harmed; and noted the applicant had submitted revised plans reducing the size of the proposed basement.
25. The Council has noted during the complaint process that Mr and Mrs X’s neighbour made significant amendments to the proposal to take into account their amenity including reducing the size of the extension significantly and changing window proposals.
26. Mrs X raised a new complaint about an outbuilding built at the far end of the neighbour’s garden. The Council investigated and found the structure fell within permitted development rules. It has issued a certificate of lawful development.
27. The officer’s report recommended a condition about tree protection measures as no information about trees was submitted with the original application. The Council has acknowledged this condition was missed off the decision notice. However, the Council’s Urban Forrester has now inspected tree protection measures on site and made recommendations which the Council says have been followed up. There is therefore no injustice arising from this error.
28. Mr and Mrs X say the Urban Forester only considered trees in the development site, not in their garden. The Council says Mr and Mrs X’s tree was considered.
29. The Council said concerns about damage to Mr and Mrs X’s property would be a private or party wall matter and not a planning concern. I agree.
30. Mr and Mrs X have raised a complaint that concrete pits are being dug in the neighbour’s garden that will lie below the outbuilding. Mr and Mrs X believe these may be septic tanks. The Council says it has been informed these are for storage, not for use as septic tanks, fall within permitted development and are not a planning matter.
31. Mr and Mrs X have raised these concerns again recently with the Ombudsman. As I understand it, use of the pits for septic tanks appears to be speculation on Mr and Mrs X’s part. The Ombudsman’s role is to look at fault and injustice (harm or loss) which has already happened. It is not our role to consider a future possible injustice that has not yet happened. If the neighbour were to build septic tanks this would be a planning enforcement issue and Mr and Mrs X would need to raise it with the Council as a fresh complaint at that point.
32. Mr and Mrs X complained the Council did not respond to concerns about construction noise. The Council explained to Mr and Mrs X a management plan was not required for a build of this size, but concerns could be raised with the Environmental Protection Team. The Council told me Mr and Mrs X raised concerns with its noise and nuisance team on five occasions from mid to late 2020. The Council issued a Section 60 notice to place restrictions on construction in summer 2020. The Council visited the site subsequently but found nothing of concern. In particular, the Council found no evidence of a statutory noise nuisance. Construction will inevitably cause some noise and disruption to neighbours but there is no evidence of fault by the Council, it has responded to the concerns raised and found no basis to take further action.
33. Mr and Mrs X say the Council only came once at lunchtime. The Council’s records show it visited three times in summer 2020.

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Final decision

34. I have completed my investigation. I have found no evidence of fault by the Council. Mr and Mrs X’s objections to the planning application were properly considered and their enforcement concerns considered and responded to. The Council has explained its reasoning for the decisions made. There is no basis for the Ombudsman to question the professional judgment of council officers. The Council has acknowledged its report could have included more detail and explanation and it has already taken steps to improve reports in future.

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Investigator's decision on behalf of the Ombudsman