Summary: Mrs T says the Council told her and her neighbours it would consult them about the effect on their privacy of a development near their houses before discharging a planning condition. However, she says, it did not do so. She says this has caused them injustice because occupants of new flats can look into their properties. The Council was at fault for raising Mrs T and her neighbours’ expectations and then disappointing them. The Council should pay each of them a sum in recognition of that fault and train officers to prevent a recurrence.

The complaint

1. The complainant, who I have called Mrs T, complains on behalf of herself and five neighbours, Mr U, Mr V, Mr W, Ms X and Mr Y about the actions of the Council before and after it granted planning application for a development near their houses. She says:
1. When the application was first proposed, the Council held a public consultation about it. She and her neighbours attended the consultation because they were concerned that the development would affect their privacy. She says a planning officer, Officer O, told them that the Council would put a condition on any grant of permission which would require screening measures along the perimeter of the development and that the Council would consult them before this condition was discharged. She says this did not happen.
2. The Council took no steps to make the developer remove dangerous pieces of debris left in neighbouring gardens after the development was complete.
2. She says, as a result, she and her neighbours have suffered an injustice as there is no or no adequate screening in place and their gardens are now overlooked.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. 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

5. I spoke to Mrs T. I wrote an enquiry letter to the Council. I considered the response. I considered all the evidence and wrote a draft decision.
6. Mrs T and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

What should happen

7. The central government has made laws, regulations and guidance to control planning in England. The general rule, set out in the National Planning Policy Framework, is that a local planning authority must always grant planning permission unless there are sufficient reasons not to do so. Such reasons include a finding that development would interfere with the ‘amenity’ of local people and that the development does not comply with local planning policy and guidance.
8. Councils are the planning authorities for their areas. Those wishing to carry out development in the area must usually ask their council for planning permission.
9. On receipt of an application for planning permission, councils must process the application correctly. They must notify local people affected by the development. An officer must write a report considering the application and making a recommendation either for a grant or a refusal of permission.
10. Sometimes councils impose conditions on planning permissions requiring developers to seek and receive approval for specific aspects of a development which are not provided in the original application. If the council approves the way a developer has carried out the required works, it will discharge the condition. If the developer fails to comply with the condition, the Council can take enforcement action to force compliance.
11. The National Planning Policy Framework says that planning conditions should be kept to a minimum and only used where they are:
1. Necessary
2. Relevant to planning,
3. Relevant to the development,
4. Enforceable,
5. Precise and
6. Reasonable.
12. If a planning condition is unenforceable, the courts cannot enforce it.

What happened

13. In 2016, developers applied for permission to erect a block of flats on a brownfield site near Mrs T’s house. Mrs T and her neighbours were not opposed to the development in principle but had concerns about their privacy. She and others therefore attended a public consultation organised by the Council in early 2016.
14. Mrs T and the others said they were worried some balconies in the development would overlook their gardens and habitable rooms. Officer O told them a condition would be attached to a grant of permission to deal with their concerns.
15. The development was of sufficient size to be referred to the Council’s planning committee. Officer O wrote an officer’s report recommending a grant of permission. In it, she said ‘neighbours were worried about balconies having direct views into gardens and habitable rooms. (Condition 3 is recommended which will ensure that residents are consulted on the screening’.) She later noted that ‘the community were delighted that a condition regarding screening was being recommended and residents being consulted’.
16. Mrs T says that she and her neighbours did not object to the proposal because of the undertaking to consult on the screening. Permission was granted with the condition attached (condition three) and the development went ahead.
17. The development was more or less completed by 2019. The developers applied to discharge condition three. Mrs T and her neighbours went to the Council, concerned that they had not been consulted and because they believed their privacy had been compromised. Officer O told them that the condition had not yet been fully discharged and that they would be consulted before it was.
18. In late 2020, Mrs T discovered that the condition had been fully discharged. She and her neighbours had not been consulted.
19. Mrs T complained to the Council. She complained about debris left around the perimeter of the development and about the Council’s decision to discharge condition three without consulting her and her neighbours. In its final, stage three, response to her complaint, the complaint handler said:
1. The debris and trenches left in neighbouring gardens was nothing to do with the Council. There was ‘no formal planning mechanism’ that would allow it to take enforcement action against the developer. It was a matter for civil resolution between the two landowners.
2. Condition 3, insofar as it dealt with ‘screening’ on the boundary of the property, was not concerned with privacy of neighbours.’ It is not common practice to consult on individual conditions imposed on a planning permission; although I do accept that there was an expectation of some form of consultation as per the wording of condition 3. This expectation stems from a misconception of what constitutes an appropriate planning condition in planning law. The condition as worded on the decision letter is not valid as it committed the local planning authority to enable the landscaping to be agreed by residents. In planning law, this is not possible as it is only the local planning authority that can agree (discharge) a planning condition. I accept that this created an expectation of consultation which could not have been fulfilled, although I acknowledge the planning officer could have consulted the residents informally.’
3. He continued, even so, had there been a consultation, it would not have led to a different result. This was, ‘a genuine misunderstanding on the part of the officer’.

Was there fault causing injustice?

Consultation

20. The Ombudsman, when dealing with complaints about planning permission, cannot consider whether a planning decision was right or wrong. The Ombudsman’s role is to determine whether there has been administrative fault in the way a decision was made.
21. In this case, I am satisfied that the Council was at fault for first making, and then breaking, an undertaking to local people that it would not discharge a condition on the grant of planning permission before consulting them. This raised Mrs T and her neighbours’ hopes that their concerns would be heard and prevented them from formally objecting to the proposal.
22. The Council accepts that it should not have made this undertaking and has apologised. An apology is insufficient and I have recommended a payment to each of the claimants in recognition of their distress and the fact that their faith in the planning system will have been reduced by the Council’s actions.
23. The Council later decided that the planning condition in question was unenforceable. This is not a question on which the Ombudsman can have a view. That is a matter for planning professionals and the courts. I do not, therefore, find the Council at fault for its decision not to attempt to enforce the condition. This was a matter of professional judgment.
24. However, I do find fault for the way in which the Council failed to communicate its decision to Mrs T and her neighbours. The fact that the Council first told one of them that they would be consulted and then discharged the condition without consulting them or even informing them was fault. I have recommended a remedy in recognition of the injustice this caused.

Debris

25. The Council has told Mrs T that it considers the fact that the developer has left the perimeter of the development site in an unsafe condition is not a planning matter and it cannot, therefore, become involved in what it sees as a private law dispute between neighbours.
26. I accept the Council’s position is correct. The Council is not, therefore, at fault. However, it says it has carried out remedial works around the perimeter which have dealt with most concerns.

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Agreed action

27. The Council has agreed that, within two weeks of the date of this decision, it will write to Mrs T and her fellow complainants, Mr U, Mr V, Mr W, Ms X and Mr Y and apologise and pay them £200 each in recognition of the fact that it made an undertaking which it then broke and the fact that it did not tell them that it had done so, damaging their faith in the planning system
28. The Council has also agreed to arrange training within one month to ensure that all officers understand what is and is not an enforceable planning condition.

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Final decision

29. I have found the Council at fault and have closed my investigation.

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Investigator's decision on behalf of the Ombudsman