Summary: Ms C complains the Council failed to properly consider a reserved matters planning application for a housing development which has resulted in unacceptable levels of overlooking and loss of light and outlook. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains the Council failed to properly consider a reserved matters planning application for a housing development. In particular, Ms C says the Council granted the original outline planning permission on the basis there was at least 21 metres between the proposed and existing houses and there was boundary screening from mature trees. However, Ms C says this is not the case as the separation distance from the nearest house to her property is less than 18 metres and there is no screening from mature trees.
2. Ms C says because of the Council’s fault, she suffers from unacceptable levels of overlooking and loss of light and outlook.

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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 an organisation’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. 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)
6. If we are satisfied with an organisation’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

7. I read the papers provided by Ms C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Ms C. I have explained my draft decision to Ms C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

8. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
9. Outline applications are used to establish the principle of a proposal, leaving the ‘reserved matters’ to be considered at a later stage. Applications may be made with some or all matters reserved until later.
10. If a developer is granted outline permission, they must apply for reserved matters approval within 3 years. The reserved matters can include:

• Appearance – the design and materials for a building or place.
• Access – details of how the development is accessed from roads and paths outside the site.
• Landscaping – showing how the development site will look, including details of plants and trees to be used.
• Layout – plans show where buildings, routes and spaces within the site are laid out in relation to each other as well as areas outside the site.
• Scale – information on the size of the development, such as the height width and length of a proposal.

11. Grant of a reserved application, together with plans and conditions included in an outline approval, amount to a full permission.
12. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
13. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
14. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities.
15. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Key events

Outline planning application

16. The Council’s Planning Committee granted outline planning permission for a housing development and its access towards the end of 2019. This established the principle of 30 residential properties on the site and the means of access only. All other matters were reserved for subsequent approval including the layout of the site although the applicant provided an illustrative layout.
17. The case officer’s report to the Committee for the outline application referred to the illustrative layout which showed distances between the proposed houses and the nearest existing residential properties of at least 21 metres but noted it was difficult to assess the relationships between properties that had the potential to be affected as the application was only seeking permission for the principle of development and the means of access. It was made clear the application was an outline scheme with the appearance, layout and scale of individual properties not being considered and these would need to be assessed at the reserved matters stage.
18. For clarity I have not investigated the Council’s consideration of the outline application and a complaint about this matter now would be caught by the restriction outlined at paragraph 5 above as Ms C complained to the Ombudsman in October 2021.

Application for reserved matters

19. The Council received an application for the reserved matters of appearance, landscaping, layout and scale towards the end of 2020. The Council’s ‘Scheme of delegation’ contained in its Constitution sets out that decisions on applications for ‘reserved matters’ are delegated to planning officers unless ‘called in’ to Committee by members. This application was not ‘called in’ and was determined using delegated powers in line with the Council’s Constitution.
20. The case officer had visited the site at the outline application stage in August 2019 and visited the site again at the reserved matters stage in January 2021. The Council has provided photographs from the case officer’s August 2019 visit. The Council has not provided any records for the subsequent visit. Although there is no requirement to complete a site visit, I would remind the Council that the Ombudsman considers it good practice to maintain an adequate record of any visits made.
21. The case officer’s report sets out the relevant policies and material considerations and provides a summary of the representations received including specific concerns about overlooking and the possibility of the removal of existing hedging that provided screening. The representations included an objection from the Parish Council on the grounds that there was not enough of a buffer zone between the development and existing properties and about the significant number of trees including protected trees that were due to be removed. There were also specific objections about the loss of privacy to gardens and the rear of properties along Ms C’s road and the potential impact from the loss of protected trees and hedging.
22. The report sets out the distances between the development and residential properties including those on Ms C’s road which was noted as 18 metres. The case officer assessed the distances as being acceptable and that there would not be significant harm to residential amenity to warrant refusal.
23. The report refers to comments received at the outline stage from the Council’s tree officer about the loss of protected trees. These noted the high number of trees being lost but assessed many of these as conifers of no merit or with a limited life span given the original protection order dated from 1990. It was considered that it would be preferable to secure new planting with longevity. For the reserved matters application, the Council's tree officer sought amendments to the landscaping detail to emphasise the provision of native species and was satisfied the revised documents addressed this issue. It was also noted that the detailed landscape issues would be considered further by the Council's arboriculturist as part of the separate condition discharge application.
24. The Council approved the application in early 2021.
25. Ms C says the case officer’s delegated report was amended after it was published on the Council’s website and the 18 metre separation distance between her property and the nearest plot was only noted the day before approval which meant she did not have a reasonable opportunity to comment on this aspect. The Council says the case officer’s report was published the same day as its decision and was the only version published. I do not propose to investigate this point further for the reasons below.
26. Section 7 of the Openness of Local Government Bodies Regulations 2014 requires a local authority officer to produce a written record of their decision and reasons when deciding on the grant of a permission ie planning permission or on a matter affecting the rights of individuals. There is no legal duty to specifically produce a case officer report but these remain the most common way for officers to record their reasons for a decision. Generally, case officer reports to committees are detailed, as they are aimed at advising members, who are unlikely to be planning professionals. We accept that delegated reports might be written differently, as their target audience is a professional planner, not a member of the planning committee, but they still need to demonstrate the core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated. The purpose of a delegated report is to demonstrate the core issue have been considered and set out the reasons for judgements on planning matters. I am satisfied that was the case here. There is no requirement to publish such reports in advance of the decision. It is also clear the proximity of the development to existing properties and issues of overlooking were raised by affected residents and considered during this process.
27. The Council completed a planning enforcement visit to the site after a report from Ms C’s partner that the development was not being built in accordance with the approved plans. The Council measured the distance between Ms C’s property and the nearest development plot as being 17.8 metres which was considered to be within acceptable building tolerances. The Council advised in August that it did not consider this constituted a breach of planning control.

My consideration

28. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.

29. I have considered the steps the Council took to consider the issues, and the information it took account of when deciding to grant planning permission. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.

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Final decision

30. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman