Summary: Mr X complained about the Council’s decisions relating to development behind his home, which he said affects his amenity. We did not investigate this complaint further because we are unlikely to find fault, recommend a remedy or achieve any other meaningful outcome for Mr X.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application for a house on land behind his home. Mr X also complained about the Council’s delay in taking enforcement action, after he reported breaches of planning control to it.
2. Mr X said he wants compensation for the impact the new development has had on his amenity.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

4. 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)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X and a planning officer. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
14. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
15. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
16. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

17. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

Background

18. Several years before Mr X complained to us, a developer applied for planning permission to build two houses on land behind Mr X’s home. Mr X said the nearest house is over 21.5 metres from his home and the land rises, so he is lower than the development.
19. Mr X complained that the development was not built in accordance with the plans. He said that the Council failed to respond effectively.
20. More recently, the developer applied to vary the permission relating to use of the garage and on-street parking, as well as retrospective permission for a new rear fence and decking area.
21. The Council’s planning case officer visited the site and wrote a report. The case officer report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to refuse the application because the information relating to on-street parking was inadequate.
22. The case officer said that the fence and the decking did not cause a significant impact on neighbouring amenity and was acceptable.
23. The developer appealed against the Council’s decision and the appeal will be decided by a planning inspector.

My findings

24. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
25. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
26. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
27. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
28. I did not investigate this complaint further, and my reasons are as follows:
• The original permission was granted several years before Mr X complained to us. I have seen no evidence to suggest it was not possible for Mr X to bring any concerns about the original approval to us sooner.
• Even if we were to have investigated the original application, it is unlikely we would find evidence caused by the new houses. This is because the separation distances are within limits normally considered to be acceptable.
• The Council refused the recent application to vary the plans it had approved years ago. An appeal is now with the Planning Inspectorate who will decide the matter. The appeal process allows for representations from people like Mr X. We do not investigate decisions made by the Inspectorate.
• Even if we were to investigate the Council’s recent involvement, it is unlikely to result in a different outcome. The issues that most concern the Council (on-street parking and garage space) do not have a direct impact on Mr X as an individual. We also know that the Council do not consider the fence and decking cause a significant impact on his amenity, and this is a judgement it is entitled to make. In these circumstances, it is unlikely we could provide a meaningful remedy for Mr X.

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Final decision

29. I ended my investigation as it is unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman