Summary: Mr X complained the Council did not properly consider his objections to a planning application. Mr X says the proposed application will cause him a loss of sunlight and privacy. Mr X also says a proposed pedestrian access will cause him inconvenience. The Ombudsman does not find fault with the Council.

The complaint

1. Mr X complained the Council did not properly consider or address his objections to a planning application for a site next to his property.
2. Mr X says the approved planning application would impact his amenity by causing him a loss of sunlight and privacy. Mr X also says the proposed pedestrian access will cause a loss of parking and cause him inconvenience.

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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 have considered all the information Mr X provided. I have asked the Council questions and requested information, and in turn have considered the Council’s response.
7. I have also considered the planning application and related documents, the planning officer’s report and decision notice.
8. Mr X provided comments on my draft decision which I considered before making my final decision.

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What I found

The Law

9. When a council makes a decision on a planning application it can only take certain issues into account. These are often referred to as “material planning considerations.” Examples of material planning considerations include:
1. Local and national planning policies.
2. Loss of sunlight
3. Overshadowing or loss of outlook
4. Highway issues
10. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.

Council planning policies

11. The Council outlines its planning policies within its Local Plan. The Council calls its Local Plan the Joint Core Strategy.
12. Section CP27 of the Joint Core Strategy outlines the Council will not allow a development if it has an “unacceptable effect on the amenity of the occupiers of neighbouring properties through loss of privacy or through excessive overshadowing”.
13. Section CP31 of the Joint Core Strategy outlines the Council’s policy on Transport. The Council will try to promote public transport, walking and cycling links above reliance on cars. The Council also says it should ensure the type and volume of traffic created would not harm the countryside or rural character of local roads.

What happened

14. A commercial site, the Applicant, next to Mr X’s property applied for planning permission to redevelop the site into a residential area on 20 August 2019.
15. The Council sent consultation letters to residents near the site on 12 September 2019, including Mr X.
16. Mr X objected to the planning application on 9 October 2019. Mr X said:
• The planning application would make existing traffic issues worse on the road proposed to be the main entrance to the site.
• A block of flats, for the purpose of this decision I will refer to this as Flat Z, the Applicant proposed to build near his property concerned him. Mr X said the Applicant had not provided elevation drawings or details of how far these flats would be from his property. Mr X said the flats could overlook his property and cause him a loss of sunlight and privacy.
• The proposal to include a pedestrian crossing to access his road would cause inconvenience to existing residents through a loss of parking and increased footfall.
17. On 25 October 2019, the local highways authority provided comments on the proposal. The local highway authority said the plan provided pedestrian links from the development on to pre-existing footways which provide links to local facilities. The local highway authority also commented the location of the proposed site was near to pre-existing bus and rail services. The local highway authority sought answers to questions from the Applicant before it made a recommendation.
18. The Council considered Mr X’s comments, and all other comments, and completed an assessment of the planning proposal. The Council told the Applicant about the concerns over the planning proposal. The Council asked the Applicant to amend the design of Flat Z from a gable roof to a hipped roof and to provide further details about elevations and the site plan.
19. On 30 July 2020, the Applicant put forwards changed plans for the planning application. The Applicant included amended designs for Flat Z which included a hipped roof. The Applicant also provided elevation and street scene drawings of Flat Z showing the proposed height and outlook comparative to Mr X’s property. The new plans also included a site plan detailing shrubs around Flat Z’s car park and between Mr X’s property and Flat Z.
20. The Council sent further consultation letters to residents, on 30 July 2020.
21. Mr X objected to the planning application on 15 August 2020. Mr X said:
• There was already excessive care home facilities in the local area.
• The proposed community hub served no known requirement.
• The proposed road as the main vehicle access to the development already experiences traffic issues.
• The proposed pedestrian crossing attached to a private residential road, the road Mr X lives on, and not a public right of way. Mr X said the residents of his road had not agreed to this and this would cause inconvenience, loss of parking and a potential risk to safety.
• Flat Z was too close to his property at 5 metre distance. The mass of this building would result in a loss of light to the ground floor of his property and a loss of privacy.
22. On 26 August 2020, the local highway authority commented on the changed plans. The local highway authority said the changed plans answered its previous concerns. The local highway authority also considered the new TRICS (Transport Impact) assessment calculating the impact on traffic from the development. It said it did not consider the proposal would cause significant delay or safety issues on the local highway network and raised no objection to the application.
23. The Council officer completed his report on the planning application on 19 November 2020. The planning officer considered the full comments provided but overall recommended approval of the planning application. The planning officer confirmed Mr X’s concerns directly and addressed each concern within the report:
• In Sections 2 and 4 the Council officer outlined the need for the Community Hub and how this proposal was in line with the Council’s policy.
• The Council officer directly addressed Mr X’s concerns about the impact of Flat Z on his property in section 7. The Council officer said the street scene drawing showed the ground was lower for Flat Z compared to Mr X’s property so it would appear as a two-storey building. The Council officer said planting shrubs between Mr X’s property and Flat Z would obscure views from the ground and first floor windows to Mr X’s property. While the second-floor windows would only have oblique views which is comparable to Mr X’s current situation. The Council officer also noted the public footpath running alongside Mr X’s property already provides direct views into Mr X’s property.
• The Council officer addressed Mr X’s concerns about the impact on traffic in Section 8 of the report. The Council officer said the Applicant completed a suitable assessment of the impact on traffic and the local highway authority agreed this would not cause significant delays or safety issues.
• The Council officer also addressed Mr X’s concerns about the pedestrian access to his road in Section 8 of the report. The Council officer said the pedestrian access attaches the development to a right of way footpath which runs alongside Mr X’s road and the northern boundary of the development. While this pedestrian link would also allow access to Mr X’s road, historical links prove a pedestrian right of way exists on Mr X’s road.
24. The Council held a committee meeting on 26 November 2020 to discuss the development. As part of this meeting the Council considered the impact of Flat Z and the pedestrian access on Mr X’s property. The Council considered photographs taken of Mr X’s road and the public footpath running alongside his property as part of its consideration. The photographs showed an existing hedgerow about 1-metre from Mr X’s property providing full coverage up to at least the first floor of Mr X’s property. The Council recommended approval of the planning permission subject to conditions at the committee meeting.
25. Mr X complained to the Council on 29 December 2020 about its recommendation to grant planning permission subject to conditions. Mr X said the Council had not correctly considered his objections to the planning application. Mr X raised concerns about the ridge height of Flat Z, his loss of light and privacy from Flat Z and raised questions about the pedestrian access on to his street.
26. The Council provided its Stage 1 complaint response to Mr X on 7 January 2021. The Council said:
• It had considered the impact of the mass of Flat Z on Mr X’s property in 2019. When it considered this, it asked the Applicant to amend Flat Z from a gable roof to a hipped roof to reduce the mass from Mr X’s viewpoint.
• The street scene drawing showed the eaves of Flat Z would be roughly in line with the eaves of Mr X’s property. While the ridge is taller this pitches away from Mr X’s property resulting in an acceptable impact.
• It had considered the loss of light on Mr X’s property and had proposed the hipped roof to reflect this. The Council also noted that Mr X’s ground floor windows are also directly opposite a hedgerow which significantly restricts light so Flat Z would have a minimal impact.
• The report considered Mr X’s loss of privacy and considered Flat Z impacted his privacy less than from the footpath which already runs alongside his property.
• It had considered the pedestrian access correctly within the report and answered Mr X’s questions about the pedestrian access.
• It did not uphold Mr X’s complaint and advised him how to make a Stage 2 complaint.
27. Mr X asked the Council to consider his complaint at Stage 2.
28. The Council provided its Stage 2 complaint response on 15 February 2021. The Council reiterated its position about the eaves of Flat Z and Mr X’s property and the view into Mr X’s property from the public footpath. The Council also said it had considered the loss of light to Mr X’s property and access to Mr X’s road in both the report and the committee meeting. The Council said it had considered the matter correctly and directed Mr X’s to the Local Government and Social Care Ombudsman.
29. The Applicant provided further documentation to the Council for consideration on 13 May 2021. The Council approved the planning application on 19 May 2021.

Analysis

30. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define planning law.
31. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision to approve the planning application. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
32. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is: ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])

Community Hub and care home

33. Mr X disputed the need for a Community Hub or further care homes in the development.
34. The site plan locates the proposed Community Hub at least 200 metres away from Mr X’s property and the proposed care home about 250 metres away. Both are on the opposite side of the development to Mr X’s property and at least four rows of proposed residential properties separate Mr X’s property from either building.
35. Because of the location of the community hub and the care home in comparison to Mr X’s property, neither presents a personal injustice to Mr X, let alone a significant personal injustice.
36. The lack of significant personal injustice would mean that it would not be a good use of public money to justify the Ombudsman’s involvement to investigating this part of Mr X’s complaint.

Increase in traffic

37. Mr X raised concerns the planning application would cause added traffic issues on the road proposed to be the main entrance for the site.
38. Like the community hub and care home, the main entrance to the site is on the opposite side of the development to Mr X’s property. However, unlike the community hub and care home, changes to this road may cause Mr X a personal injustice. This is because Mr X would likely use this road given its importance and locality to his property. While this is unlikely to present a significant personal injustice, there is potential of this.
39. As part of the planning application process, the Applicant completed traffic impact assessments to consider the increase of traffic on the road by the proposed development.
40. The local highway authority considered the assessments completed by the Applicant and decided the proposal would not cause a significant delay or safety issues on the local highway network.
41. The local highway authority also considered CP31 of its Joint Core Strategy when assessing the planning application. It considered the access to bus and rail routes and considered this acceptable in line with its policy.
42. The Council officer has referenced the local highway authority’s lack of objection to the proposal in their report.
43. The Council has considered the relevant points about the impact on the local highway network when deciding to approve the planning application. There is no fault in how the Council reached its decision, even if I could justify a significant personal injustice.

Overshadowing and loss of sunlight

44. Mr X complained the proposed building of Flat Z would overshadow his property causing a loss of sunlight.
45. In 2019, the Council considered Mr X’s concerns about the mass of Flat Z and the potential impact on light to his property. The Council asked the Applicant to include a hipped roof on Flat Z to reflect this concern.
46. When the Applicant provided the changed plans this included a hipped roof. This meant the eaves of Flat Z were at a similar level to the eaves of Mr X’s property and the ridge of Flat Z’s roof was further away from Mr X’s property.
47. The Council officer’s report considered the changed proposal in the report and detailed that Flat Z would appear as a two-storey building because of the drop in ground level by 2.8metres. The Council officer’s report considers to the potential overshadowing by Flat Z.
48. The Council has considered the relevant factors about overshadowing and massing, and required the Applicant to change the plans to reflect this. When the Applicant changed the proposal, the Council considered any impact again and considered this acceptable in the report. There is no fault in how the Council reached its decision.
49. The Council also considered the impact on Mr X’s light during the committee meeting. The Council presented photographs of Mr X’s property showing the ground floor windows facing the proposed development and the hedgerow about 1 metre from his property. The Council considered the hedgerow significantly restricts light to Mr X’s ground floor and sits closer than the proposed development to Mr X’s property. The Council decided Flat Z would cause minimal change to Mr X’s access to light.
50. The Council has considered CP27 of the Joint Core Strategy by considering the potential overshadowing of Mr X’s property by Flat Z. There is no fault in how the Council made its decision. I also do not consider the Council’s decision is so outrageous that no other sensible person could reach the same decision. I do not find fault with the Council’s decision about overshadowing and light.

Loss of privacy

51. Mr X complained Flat Z would cause a loss of privacy in his home and garden.
52. The Council officer’s report detailed consideration of the impact of Flat Z on Mr X’s privacy. The Council officer’s report considered the shrub planting between Mr X’s property and Flat Z would obscure views from the ground and first floor windows of Flat Z. The Council also outlined that any views from the second-floor windows of Flat Z would only be oblique into Mr X’s property.
53. The Council officer’s report also detailed the public footpath that runs alongside Mr X’s property already allows people a direct view into his ground floor windows.
54. The Council decided that any overlooking into Mr X’s property or garden would not be cause an impact on Mr X’s privacy more than he already experiences from his adjoined neighbour and the public footpath.
55. The Council has again considered CP27 of the Joint Core Strategy about the impact on Mr X’s privacy. The Council has fully considered any potential impact on Mr X’s privacy and decided this would not be enough to prevent the planning application. This is a decision the Council was entitled to make. There is no fault in how the Council made its decision and do not consider this decision is so outrageous that no other sensible person could reach the same decision. I do not find fault with the Council’s decision about privacy.

Pedestrian access

56. Mr X complained the proposed pedestrian access to his street will cause him loss of parking and inconvenience.
57. The Council report directly addresses Mr X’s concerns about the pedestrian access from the development to his road. The Council considered the pedestrian access allowed access from the development on to a public right of way footpath. While this also unintentionally allowed access to Mr X’s road, a historic pedestrian right of way exists on this road.
58. The Council has considered CP31 of the Joint Core Strategy when considering the proposal to provide access from the development to a pre-existing right of way footpath. This promotes use of a public footpath in line with this policy.
59. The Council has considered the relevant factors in the Council officer’s report when considering the inclusion of the pedestrian access to the public right of way. The Council has also directly addressed Mr X concerns. There is no fault in how the Council handled concerns about the pedestrian access.
60. While Mr X expressed concerns about a loss of parking, he has no legal right to the spot the pedestrian access will border on his street. The proposed pedestrian access will not remove any parking available on the street.

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Final decision

61. I have completed my investigation as there was no fault in the Council’s decision to grant planning permission to the Applicant.

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Investigator's decision on behalf of the Ombudsman