Summary: Mrs B complained the Council wrongly granted planning permission for a development at the back of her property and failed to take enforcement action. We did not fault with the Council.

The complaint

1. Mrs B complained the Council wrongly granted planning permission for a development at the back of her property. She said the Council:
• used the wrong measurements;
• did not adhere to planning guidance and regulations;
• did not secure an environmental impact assessment;
• failed to upload her objections on to the Council website.
2. Mrs B also complained the Council failed to take enforcement action and its communication with her was poor.

What I have investigated

3. Mrs B complained about the Council’s actions in relation to two planning applications, one made in 2019 and one made in 2020.
4. Mrs B complained to the Council about the first planning application in 2019. In September 2019, the Council signposted her to the Ombudsman. Mrs B did not bring her complaint to us until May 2021, over a year after the Council signposted her to us. This complaint is late and there is no good reason for me to exercise discretion to investigate. Therefore, I did not investigate Mrs B’s complaint about the Council’s actions relating to the 2019 planning application, including her concern the Council failed to upload her objections on to the Council website.
5. My investigation considered the Council’s actions in relation to the 2020 planning application.

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The Ombudsman’s role and powers

6. 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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)
9. 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

10. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
11. Mrs B and the Council had the opportunity to comment on a draft decision. I considered the comments I received before making a final decision.

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What I found

Legislation and guidance

Planning

12. The planning system in England is ‘plan-led’. This means councils should decide applications in accordance with the local development plan unless other material planning considerations suggest they should not. Development plans set out how an area should look in the future by deciding the type and scale of development and where buildings should be allowed. (Planning and Compulsory Purchase Act 2004)
13. Material planning considerations must have a planning purpose and can include:
• Overlooking or loss of privacy
• Loss of light or overshadowing
• Layout and density of building
• Government policy
• Proposals in the Development Plan
• Nature conservation
14. Matters such as perceived loss of property value, the loss of a view and private rights to light are not material considerations and cannot be considered. The Council must be able to show it has considered the material planning considerations engaged by the planning process. (Town and Country Planning Act 1990)
15. Councils must provide reasons for its planning decisions. These can be in the planning officer’s report or in the decision notice or in a combination of both. Reasons may be brief, but they “must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved.” (South Bucks District Council and Another v Porter (No 2) 2004)

Enforcement

16. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

Ashfield local plan

17. In deciding whether planning permission should be granted for certain types of major development, the Council will, where appropriate, require an Environmental Assessment (EA) to be carried out in accordance with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and DETR Circular 02/99.

What happened

Background

18. In April 2019, the Council granted planning permission for a property to be built on land that bordered Mrs B’s home.

Planning

19. In February 2020, the applicants submitted an amended planning application. They changed the positioning of the development from their 2019 application. The applicants said they would build a wall on the boundary to ensure Mrs B's home was not damaged by the construction of their property.
20. The Council wrote to neighbouring properties to tell them about the application and to invite comments. Mrs B submitted a formal objection. She said:
• The property was too close to her home.
• The Council had not confirmed the height of the building.
• She would lose privacy because of the location of the property’s windows and skylights.
• Construction of the property could cause damage to her home.
21. The Council’s delegated officer assessed the application and wrote a report in May 2020. They considered:
• National and local policy, including the local plan
• Material considerations
• Information from a site visit
22. The officer also considered representations the Council received. They addressed the matters raised by Mrs B. The officer confirmed the distance between the proposed property and Mrs B’s home was 11 metres. The officer explained the Council’s residential design guide stated there had to be 21 metres between habitable rooms facing each other but the windows facing Mrs B’s home were not habitable rooms. The officer advised to position the skylights would reduce any potential for Mrs B’s home to be overlooked. The officer decided because of the topography of the site, positioning of windows and skylights, and the existing boundary fence, any potential overlooking would be negligible. The report confirmed the height of the property. The officer explained because the property sat below the floor level of Mrs B’s home and it would have a pitched roof that leaned away from her home, the existing boundary fence would reduce any potential overlooking.
23. The officer decided the property was not significantly detrimental to the amenity of neighbouring properties. The officer recommended the Council grant planning permission subject to the condition the applicants submitted a scheme of proposed boundary treatment to ensure Mrs B’s property was not damaged during construction. In May 2020, the Council granted planning permission subject to conditions. These included that no development would take place until it had received full details of the proposed treatment of the site’s boundaries and a phasing scheme for the implementation of the agreed boundary treatment.

Enforcement

24. In December 2020, Mrs B told the Council the development was not being carried out in accordance with approved plans. She said the building was higher than it should be. The Council undertook a site visit. It checked the floor level and found it to be half a metre lower that shown on the plans. The Council wrote to Mrs B and confirmed there was no breach of planning.
25. In April 2021, Mrs B complained again about a breach of planning. The Council visited Mrs B’s property in April 2021. It checked the height and dimensions of the property and the distance from Mrs B’s fence to the property. The Council and Mrs B agreed the distance between the property and Mrs B’s fence was 11 metres. This matched the approved plans and the delegated officer’s report. The Council found no breach of planning control.

Analysis

Planning

26. When considering complaints about how a council has decided a planning application, we look for evidence that a proper process was followed before a decision was made. We expect to see evidence the Council identified the material planning considerations, such as impact on neighbours’ amenity, raised by the application and they were 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.
27. The delegated officer’s reports showed they considered the Council’s Policies and the National Planning Policy Framework. They also considered and commented on the objections the Council received, including Mrs B’s objections. They found there would not be an unacceptable impact on Mrs B’s amenity in terms of overbearing, overlooking or overshadowing. I am satisfied the Council properly considered the relevant material considerations and the objections it received.
28. The delegated officers May 2020 report confirmed the distance between the property and Mrs B’s home was 11 metres. This distance matched the approved plans. There was no fault with the measurement used by the Council to assess the impact of the property on Mrs B’s home.
29. As the planning application was for one property and not a major development, an environmental impact assessment was not required.

Enforcement

30. Each time Mrs B raised a concern about a breach of planning, the Council visited the site. It checked the height and dimensions of the property against the approved plans to decide if there was a breach of planning control. On each occasion, the Council decided there was not a breach and therefore enforcement action was not needed. This was a decision the Council was entitled to make.

Communication

31. The Council investigated and updated Mrs B each time she raised a concern about a potential breach of planning.

Conclusion

32. The Ombudsman is not an appeal body. We look for fault in the process by which decisions are made and do not criticise judgements made by councils if there is no fault. Mrs B may disagree with the Council’s planning and enforcement decisions, but it does not mean they were wrong. The Council followed the decision-making process we would expect when it granted planning permission and investigated alleged breaches of planning and so I find no fault.

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Final decision

33. I have completed my investigation and do not uphold Mrs B’s complaint.

Parts of the complaint that I did not investigate

34. I did not investigate Mrs B’s complaint about the Council’s actions in relation to a 2019 planning application. This complaint was late and there was no good reason for me to exercise discretion to investigate.

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Investigator's decision on behalf of the Ombudsman