Summary: Mr X complained the Council’s decision to grant planning permission on a neighbouring property has resulted in a loss of privacy for him. Mr X also said he had no opportunity to make objections to the plans. We do not find fault with the way the Council notified Mr X of the planning application or decided to approve it.

The complaint

1. Mr X complains the Council’s decision to grant planning permission on a neighbouring property has resulted in a loss of privacy in his home and garden.
2. Mr X has said the Council did not notify him of the planning application and so he had no opportunity to make his objections. Mr X wants the Council to amend the planning permission to require smaller windows and a row of evergreen trees to provide screening.

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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. 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 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

7. I spoke to Mr X about his complaint and considered information he provided. I also considered information received from the Council.
8. Mr X and the Council commented on a draft decision, and I considered their comments before making a final decision.

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What I found

Decision making and material considerations

9. The Council must make all decisions on planning applications in accordance with its development plan unless material considerations indicate otherwise.
10. 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.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded on valid material planning reasons.
12. Government statements of planning policy are material considerations.
13. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
14. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.

Publicity for planning applications

15. Councils are required to publicise planning applications. The minimum requirements are set in law, but councils may go further in their own policies. This is usually set out in a council’s “Statement of Community Involvement”.
16. For this type of development, the law states the minimum a Council must do is post either a site notification or a neighbour notification letter and publicise the application on its website.

The Council’s local development plan

17. The Council publishes its local development plan on its website, and this sets out how it considers issues of potential overlooking when it comes to new planning applications.
18. The plan explains new dwellings should be sited to prevent any direct overlooking of habitable rooms of the existing neighbouring properties. The plan does not specify a need to protect against potential overlooking into existing gardens.

The Council’s statement of community involvement

19. The Council’s statement of community involvement explains it will notify the immediate neighbours whose property adjoins the application site. It explains people will have 21 days to make comments and the case officer will then consider any representations made.
20. The statement also states the Council will publicise all planning applications on its website.
21. The statement explains ultimately the Council is responsible for deciding on planning applications and for deciding how much weight to give to representations it receives.

What happened

22. In 2019, a developer made a planning application relating to land that neighbours Mr X’s property.
23. The Council has said it publicised the planning application by writing to Mr X and inviting any comments. While there was no requirement for the Council to put up a site notice, it says it also did this.
24. The case officer’s report on the application refers to the Council’s local plan when considering if there were likely to be any unacceptable overlooking issues. It explains the separation distances from the properties means there would be no overbearing impact, loss of light, or sense of enclosure.
25. The Council approved the planning application in 2020 and work started in 2021.
26. Mr X complained to the Council in September 2021. He explained the Council never notified him of the planning application, so he had no chance to submit his comments. Mr X explained the new building was close to his property and has created a loss of privacy to two of his bedrooms and his garden. Mr X explained he had been having issues with the developer and that they had removed a tree from his garden without permission and deposited soil on his property. Mr X said the work would result in his home losing value.
27. The Council responded to Mr X explaining it sent a letter notifying him of the plans in 2019 and placed an advert in a local paper. It explained it considers overlooking and loss of privacy as part of planning applications, but these are not automatically reasons to refuse plans.
28. The Council explained there were no specific distances needed between windows of new homes and existing gardens. It explained the new development was at an angle to Mr X’s property and there was a distance of 17m and 24m between it and his rear windows. The Council said the distance was reasonable and it could see no reason to reject planning permission. The Council also explained the issues with the developer were a civil matter.
29. Mr X responded to the Council in October 2021. He explained he felt it had not properly considered the issue of overlooking. Mr X also said he had not received a written notice and nor had his neighbours.
30. The Council replied the following month repeating it had sent letters to notify Mr X of the planning application in 2019. The Council explained it was not unusual for planning applications to mean a change in the living environment of neighbours. The Council agreed the development would reduce Mr X’s privacy but not enough that the Council could justify rejecting the application.
31. Unhappy with this, Mr X brought his complaint to the Ombudsman in November 2021.
32. In response to our enquiries on this complaint, the Council explained it does not hold a copy of the letter it sent to Mr X notifying him of the planning application. However, it has provided the template it uses for these letters as well as screen shots of its internal systems to show the date it sent the letter to Mr X and the due date for a response.
33. The Council confirmed it was incorrect to tell Mr X it had placed an advert in the local paper, and this was stated in error. However, the Council provided an email from a former employee confirming they did post a site notice near to the proposed development, but they no longer had photos to evidence this.

Analysis

12 Months

34. We cannot investigate complaints that have been brought to us more than 12 months after the complainant ought to have been aware of reason to complain. We are only able to exercise discretion if there are good reasons to do so.
35. The planning application was publicised and approved more than 12 months before Mr X contacted the Ombudsman which means this is a late complaint. However, Mr X has said he was not aware of the planning application until work started in 2021 and he raised his complaint within 12 months of this.
36. If Mr X did not receive notification of the plans, it is reasonable to say he would not have been aware he had cause to complain until work started. For this reason, I have exercised discretion to look into Mr X’s complaint.

Publicity

37. On receiving the planning application, the Council was required to publicise it on its website and write to Mr X giving him an opportunity to comment. There is no dispute the plans were posted on the Council’s website, but Mr X says he did not receive a letter notifying him of them.
38. The Council has provided me with the template it uses, and a screen shot of its internal systems to show the date this was sent to Mr X.
39. I accept, on the balance of probabilities, the Council sent the letter to Mr X. I also accept Mr X did not receive it, however that may be through no fault of the Council. For example, it could be the result of issues with the post. I am therefore unable to find fault by the Council.
40. Even if I were to find fault here, it is unlikely I would be able to conclude this fault has caused Mr X an injustice. I say this because in response to Mr X’s complaint, the Council confirmed it assessed the planning application in line with its usual process and his objections would not have been sufficient to change the outcome.
41. The Council was not obliged to do more than write to Mr X and publicise the plans on its website, but it has said it also displayed a site notice near to the proposed development.
42. Although I have seen nothing to evidence this other than the email from a former employee, I would not be able to say the Council was at fault even if it had not posted a site notice as it was not required to do so.
43. The Council was wrong when it told Mr X it had placed an advert with a local paper but it did not need to do this anyway so I would not say it was at fault for failing to do so.

Overlooking and loss of privacy

44. 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. Rather, we look at the processes a council has 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 a complainant disagrees with it.
45. I have considered the steps the Council took to consider the issue of overlooking and a loss of privacy to Mr X when looking at this application. I am satisfied the Council ensured it had sufficient information to reach a sound decision and properly considered the material planning considerations when deciding to approve the application.
46. The case officer’s report shows consideration was given to the overlooking issues. Although they did not receive Mr X’s objections, they addressed the same points he later raised but the officer decided the development was acceptable in line with the Council’s local plan. The Council did not need to consider the overlooking to Mr X’s garden as this was not part of its planning policy.
47. I appreciate Mr X disagrees with the case officer here, but there appears to be no fault with how the Council made its decision so I cannot question whether it was right or wrong. I find no fault in the Council’s decision making process.

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Final decision

48. I find no fault with the way the Council notified Mr X of the planning application or the steps it took to reach its decision to approve it.

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Investigator's decision on behalf of the Ombudsman