Summary: Mr X complained about the Council’s decision to approve a planning application for development on land behind his home. We ended our investigation as it was unlikely to result in a finding of fault or achieve a meaningful outcome for Mr X.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application for development on land behind his home. Mr X was also concerned the developer had brought a large amount of hardcore onto the site but did not declare this on the planning application.
2. Mr X said that his privacy is affected by the approved use, and the raised land level near his boundary may be unstable and dangerous. Mr X would like the land to be restored to its previous state.

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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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. 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.
5. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. 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.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. 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.
11. The Royal Town Planning Institute issues guidance through its Planning Advice Service. It has issued guidance on material planning considerations that is based on decisions made by the courts. The guidance states that a misrepresentation by a planning applicant or an error on an application plan, is not necessarily a material planning consideration. Where a discrepancy in a plan has not been noticed, the Ombudsman will only criticise a council if the discrepancy would have:
• been obvious to any reasonable planning officer; and
• would have been material to its consideration (i.e. made a difference to the outcome).
12. Where planning considerations have been taken into account and a decision has been made, we cannot comment on them, unless there was some fault in the decision making process. This is because we are not a planning appeal body. Our role is to review the process by which planning decisions are made. We may investigate fault in the decision making process, if we can demonstrate it caused an injustice to the complainant.
13. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
14. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
15. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

Background

16. Mr X’s home has land behind it, which had been used for storage purposes, without planning permission.
17. The developer submitted a retrospective planning application and the Council’s planning case officer considered it. The case officer visited the site and wrote a report which included:
• a description of the proposal and site;
• comments from neighbours and other consultees, including Mr X’s objections;
• details of planning policy and guidance that were considered relevant;
• an appraisal of the main planning considerations, including impact on residential amenity, visual amenity and highway safety. The case officer referred to Mr X’s objections about raised levels, but said the land did not appear to have been raised; and
• the officer’s recommendation to approve the application.
18. The Council approved the application subject to planning conditions.

My findings

19. 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.
20. Before we begin or continue our investigations, we consider two, linked questions, which are as follows:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
21. 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.
22. 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.
23. I decided not to investigate this complaint further, because of the following reasons:
• It is unlikely further investigation would find evidence of fault. This is because, before it made its decision, the Council considered the application plans, relevant policy, objections and comments from consultees and the case officer’s recommendations. This is the decision making process we expect.
• Mr X believes the applicant misled the Council by not declaring the fact that a large amount of hardcore had been brought onto the land. He also said that it has since been accepted that land levels were raised. We do not investigate the actions of third parties. Our focus is on the Council, its decision making process, and the information available to it at the time it made its decision. It is clear from the case officer report that Mr X’s concerns were taken into account. The case officer visited the site and noted that the trees near the boundary did appear to have had the ground raised around them. The officer was not persuaded there was evidence of a significant change in levels, or that there was a significant impact on privacy.
• The case officer considered the development’s impact would have on neighbouring amenity and was satisfied it was acceptable. Even if Mr X is correct, and large quantities of hardcore were deposited near the boundary, we cannot know the outcome of the planning decision would have been any different. We are not an appeal body to judgements like this, and in the absence of fault, cannot say whether we agree or disagree with them.
• Mr X would like the land restored to the state it was in before land levels were raised. Even if we found fault, this is not a remedy we can recommend, because the change of use of the land has been approved and is now lawful. Where we find fault, our remedies focus on practical measures, like planning or fences, or compensation for loss of amenity.
• Mr X is concerned about the safety of the land, as he fears the raised land may slip and endanger his property. He can report his concerns to the Council’s building control officers, who may choose to act if there is evidence to show the public is at risk from unsafe buildings or structures. However, responsibility for land lies with landowners.

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Final decision

24. I ended my investigation as it is unlikely to result in a finding of fault or a meaningful outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman