Summary: We will not investigate Mr X’s complaint about the Council’s decision to discharge a landscaping planning condition on a nearby development. There is not enough evidence of fault by the Council to warrant our investigation.

The complaint

1. Mr X lives near a recent residential development. Between his property and the new housing is a piece of open land with paths running through it, an area which forms part of the development.
2. Mr X complained the Council wrongly discharged a landscaping planning condition on the open development land which was required to prevent loss of privacy to his property.
3. Mr X says people on the open land paths can see into his bathroom window when it is open. He wants the Council or the developer to fix the problem by planting up the land as he believes is required by the planning permission.

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The Ombudsman’s role and powers

4. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council.

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

5. 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)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• viewed relevant online planning documents and maps;
• issued a draft decision, inviting Mr X to reply, and considered his responses.

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What I found

7. The Council refused permission for the original planning application in 2013. The developer appealed to the Planning Inspectorate (PINS). The inspector visited the site in early 2014 and granted conditional permission in spring of that year. The Council made its decision to discharge the relevant landscaping condition (condition Z) in August 2018.
8. It is Mr X’s view that the planning conditions imposed by the PINS inspector on the development in 2014 includes one requiring the developer to plant screening between his property and the path on the open land. To support this view, Mr X refers to condition Z in the PINS decision. It required the developer to submit to the Council a scheme for the laying out, management and maintenance of the development’s open spaces. The condition says the proposed landscaping scheme must include ‘planting to protect the privacy of existing residents’. Mr X has taken this to mean there should be planting between the open land and his existing property, to protect his privacy when his bathroom window is open.
9. Ordinarily, overlooking is not a material planning issue when the room concerned is a non‑habitable one, such as a bathroom. Where the PINS inspector identified potential for material planning harm caused to existing properties by the new development, he included specific conditions in his decision to prevent it. There is no condition in the PINS appeal decision which required the developer to plant up the open space to prevent loss of privacy to Mr X’s bathroom, or those of other existing properties facing the land, when their windows are open. If the PINS inspector had considered this privacy concern to have required a condition to prevent any material planning harm, he would have included one.
10. Mr X says he spoke with the PINS inspector during his site visit conducted for the appeal. He says he pointed out the loss of privacy to his and others’ bathrooms from users of the path. But if the PINS inspector agreed at the visit to include in his report the landscaping Mr X wants, then did not do so, that would be an allegation of fault by the PINS. It would not be a claim of fault by the Council, because the Council did not produce the planning conditions.
11. The site visit happened in early 2014. We could not now determine what was said about this issue so long ago. Even if we could, I do not consider what a PINS inspector said during a site visit could form the basis for a finding of fault against the Council here. A council could not refuse to discharge a condition, or use its enforcement powers, based on something an inspector said but which then did not form part of the written planning conditions.
12. Mr X refers to the landscaping plan submitted by the developer as part of the application to discharge condition Z. He correctly notes the plan does not include any new planting between his property and the nearby open space. He interprets this as meaning the Council was at fault for discharging the condition using this plan, because it does not include the planting to protect his privacy as an existing resident.
13. But there was never any requirement for the developer to plant anything between Mr X’s property and the open land. The PINS appeal decision includes in the schedule of conditions the approved plans the developer must use to be compliant with the permission. One of those documents is the ‘Landscape Masterplan, Rev A’. That document set out the landscaping required by the PINS to be implemented by the developer. It was approved by the PINS inspector by its inclusion in the schedule of conditions. As with the 2018 landscape document, it involves no new planting between Mr X’s property and the open land. So the landscape plan permitted by the Council in 2018 when discharging condition Z is, by not including that planting, consistent with the masterplan approved by the earlier PINS appeal.
14. The evidence of these consistent landscaping plans, and the absence of any PINS condition to prevent material planning harm to Mr X’s property, shows the PINS inspector did not require the developer to include any new planting between his property and the open land. So there is not enough evidence of fault by the Council in how it decided to discharge condition Z, using a landscape plan without that planting, to warrant our investigation.

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Final decision

15. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council to warrant our investigation.

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Investigator's decision on behalf of the Ombudsman