Summary: Mr F complained the Council failed to properly consider the impact his neighbour’s proposed development had on his amenity. He also said it failed to consult enough neighbours and consider land stability as set out in its Policies. We found no fault in how the Council considered and handled the planning application. It reached a decision it was entitled to make, and we cannot therefore criticise the merits of its decision. However, it was at fault for causing delays in its complaints handling. It has apologised to Mr F, which was enough to remedy any injustice this caused.

The complaint

1. The complainant, whom I shall refer to as Mr F, complained the Council wrongly granted planning permission for his neighbour’s single storey garden room. He said it failed to:
• notify enough residents about the planning application;
• properly consider Council Policy and the development’s impact on his property; and
• respond to his complaint as set out in its Policy.
2. As a result, Mr F said he experienced distress as his views and objections were not properly considered. He had time and trouble to understand his rights, meet with neighbours and communicate with the Council. He also said he had financial costs for a structural engineer’s survey.

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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. As part of my investigation, I have:
• considered Mr F’s complaint and the Council’s responses;
• discussed the complaint with Mr F and considered the information he provided;
• considered the planning documents available on the Council’s website; and
• considered the relevant law, guidance, and Council Policy.
7. Mr F 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

Relevant law and guidance

8. A council must decide on a planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Examples of material planning considerations include:
• Local and national planning policies.
• Layout, density, design or appearance of the proposal.
• Overshadowing, overlooking or loss of outlook and privacy.
9. Boundary disputes and damage to property are a private matter between neighbours and are not material planning considerations. Impact on the value of another person’s home is also not a matter for planning considerations.

Council’s Policy

10. The Council’s Statement on Community Involvements says when it receives a planning application it may:
• place the application on its website for the public to make comments;
• write to properties neighbouring the application site, and relevant statutory and non-statutory consultees;
• display a site notice;
• place advertisements in local newspapers.
11. The Council’s Local Plan, the Site Allocations and Development Management Policies – DM37, sets out the process that should be followed in areas where there are reasons to suspect unstable land may materially affect the proposed development or neighbours. If the Council finds this to be the case, it will require a desk-based study of the previous use of the land. It may also require a sit investigation assessment to be completed.
12. The Council’s Drawing Standards 2017 sets out the details and plans a valid planning permission should contain. It says in some circumstances a Street Scene or a Context Plan assessment may be required. It may require this when the works is visible from the street, in particular if the proposed development is large and will be near the boundary of neighbouring buildings.

What happened

13. Mr F lives in a terraced house with a garden. The property is at a significantly lower level compared to adjacent properties. In the end of his garden there is a retaining brick and rubble wall which is over 2 meters tall and separates his property from his adjacent neighbour’s garden.
14. In 2020 Mr F’s adjacent neighbour (Mr X), applied for planning permission for a single storey garden room with a roof dormer. The development would be at the end of the garden on the boundary of the retaining wall.
15. The council added the planning application and plans to its website. It also wrote letters to the neighbours whose properties bordered the proposed development, which included Mr F.
16. Mr F and 7 other nearby neighbours objected to the development. They said the planning application should be refused because:
• it was overbearing and overshadowing neighbouring properties;
• neighbouring properties would have a loss of privacy, and experience noise during and after the development;
• the development was out of character with the local area;
• its waste pipe may leak into neighbouring properties and the boundary walls may not be structurally stable enough for the development;
• not enough neighbours were consulted on the proposal; and
• it would devalue neighbouring properties.
17. The Council considered Mr X’s planning application and the objections received and discussed the application with him. This led to Mr X submitting revised plans which reduced the height of the development and the roof dormer profile.
18. The Council found the development would not cause unacceptable harm and approved the revised application. The Planning Officer’s report set out a summary of the objections received and explained why he found the proposed development acceptable.

Mr F’s complaint

19. Mr F was unhappy with the Council’s decision and complained to the Council. He said the Planning Officer had failed to properly:
• (Process) consult enough neighbour on the development, which was evident as the Council received more objections than the number of people it had consulted;
• (Use) consider the development could be used as an independent dwelling, and neighbours would experience significant harm due to noise from the development;
• (Structural stability) consider the stability of the boundary walls as these may not be able to safely retain the proposed development. He also said the land was likely to be unstable and the Council should have completed a desk-based study to assess the risk of the development as set out in its Policy;
• (Neighbouring amenity) consider the development’s overbearing and overlooking impact on his property, including his loss of privacy and light. He said the Officer’s report referred to neighbouring properties which were 17 meters away from the development, but failed to consider his property which was only 5 meters away; and
• (Character of local area) consider the development was out of character in the local area.
20. In response the Council found it had properly considered Mr X’s planning application. It said it had consulted neighbouring properties as set out in its Policy and considered the comments it received. It found the development would not cause a detrimental impact on neighbouring or adjacent properties, including their amenity. It explained future potential noise issues were not a planning matter and the structural stability of the retaining wall was a matter for building control.
21. In early 2021, Mr F asked a structural engineer to complete a survey of the retaining wall between his and Mr X’s property. The surveyor found the wall to be in a satisfactory condition and it could retain the current level of earth. However, he did comment the development’s piles should be placed at least 0.6 meters from the wall.
22. In Spring 2021, Mr X paid for a party wall surveyor to make a determination under the Party Wall etc. Act 1996 to address the concerns about the development’s impact on the boundary wall. This included how the development should be completed and how potential damages to the wall or property should be dealt with. Both Mr X and Mr F agreed to be bound by the findings and the process set out in the report.
23. Mr F remains unhappy about the Council’s handling of the planning application and its decision to approve the development. So, he asked the Ombudsman to consider the matter.

Analysis

24. When considering complaints about how a council has considered a planning application, we look for evidence that a proper process was followed before a decision was made. We expect to see evidence that the Council has identified the material planning considerations, such as impact on neighbours’ amenity, raised by the application and that they have been properly considered. The weight the Council gives to them is a matter for its judgement. We will not come to our own view on the merits of the planning application.

The Planning application

25. I acknowledge Mr F’s concerns due to the significantly different ground levels between his and Mr X’s property. However, I found no fault by the Council for how it handled or considered Mr X’s planning application and the objections it received. This was because:
• (Process) the Council’s Policy says it will consult neighbouring properties to a proposed development. I understand Mr F feels more neighbours should have been notified. However, the Council consulted all the properties which bordered the proposed development. It was therefore not at fault for failing to follow the process set out in its Policy.
• (Structural stability) the Council’s Local Plan sets out how it will consider proposed developments on unstable land. Mr F believes the significant difference in ground levels between his and Mr X’s property meant the Council should have carried out a desk-based study to assess the risk of the development. I have not found the Council at fault for failing to do so. This is because this part of its policy is relevant for impact of previous coal mining operations which has caused unstable land. This was not a concern on Mr X’s land. I therefore agree with the Council’s view, any matters about the stability of the retaining wall were a matter for Building Control, which is separate to planning. In addition, Mr F’s own survey and the Party Wall determination has found no significant concerns to be considered.
• (Neighbouring amenity) the Planning Officer’s report shows he considered the Council’s Policies and the National Planning Policy Framework. He also considered and commented on the objections the Council received, including Mr F’s objections. He found there would not be an unacceptable impact on neighbouring amenity in terms of overbearing, overlooking, loss of privacy, loss of light. I acknowledge most of the Report refers to the impact on neighbouring properties. However, it also refers to the impact of adjacent properties such as Mr F’s. I am satisfied the Council properly considered all the properties bordering the proposed development and the objections it received. It made a decision it was entitled to make, and I cannot therefore criticise its decision.
• (Character of local area) I understand Mr F feels the approved development will be out of character with the local area. However, the Council explained the development would not be visible from the street, and it found other similar structured had been approved in the area. As the Council considered the proposed development’s impact on the character of the local area, I cannot criticise the merits of its view.

Complaint’s handling

26. The Council’s Complaints Policy says it will respond to complaints within 15 working days, and within 20 working days for stage two complaints.
27. The Council failed to respond to Mr F’s complaints within the deadlines set out in its Policy. This is because there was a long delay in its stage one and a small delay in its stage two responses to Mr F. This is fault.
28. The Council apologised to Mr F for the delays it caused but did not give any reasons for the delays. I am satisfied its apology was enough to address any injustice this cause Mr F. This is because this fault did not cause any additional injustice as I have not found fault on the substantial matters complained about.

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Final decision

29. I have completed my investigation with a finding of no fault on the substantial matters of the complaint. There was some fault in the Council’s complaints handling which it has already apologised for.

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Investigator's decision on behalf of the Ombudsman