Summary: Mr X complained about the Council’s decisions relating to development on land next to his home. Mr X said he has been caused stress and anxiety by what has happened. We ended our investigation, as it is unlikely to result in a finding of fault, a remedy for an injustice or any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision to approve an extension to his neighbour’s house.
2. Mr X also complained about the Council’s failure to take planning enforcement action, following his allegation that a planning condition was in breach.

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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 significant 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 or meaningful 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. There are areas of land designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
11. Government guidance sets out exceptions to development in the green belt, which include:
• buildings for agriculture and forestry;
• facilities for sport and recreation;
• alterations to or replacements of existing buildings;
• limited infilling or redevelopment of previously used sites (brownfield sites).
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. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. 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.
15. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
16. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
17. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the council may seek an order to restrain an actual or expected breach of planning control.
18. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
19. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Background

20. Mr X’s neighbour submitted a ‘retrospective’ planning application – this was an application to ask for approval of development that had already been built. The site is at the side of Mr X’s property and the development is single storey, with living accommodation in the roof. Mr X is concerned about the potential use of a flat roof as a balcony, as it might affect his privacy. Mr X would like the Council to refuse the application and take formal enforcement action against his neighbour.
21. Mr X said the difficulties and time spent on challenging the Council’s decision has caused a significant amount of stress and anxiety.
22. Before it made its original planning decision, the Council’s planning case officer visited the site and wrote a report, setting out their analysis and recommendations. The case officer’s report included:
• a description of the proposal and site;
• comments from neighbours and other consultees;
• a summary of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including green belt and area of special county value policies, impact on the character, appearance of the area and neighbouring amenities flood risk and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
23. The decision was approved by a senior officer using delegated powers.
24. Mr X alleges there is a breach of planning control, because it is possible to access the flat roof, as there is no metal bar in front of large, floor to ceiling sliding door windows opening onto the flat roof.
25. The planning approval included a condition that prohibited the use of the flat roof as a balcony without further, specific permission from the Council. A Council planning enforcement officer told me that the developer is required to ensure there is a metal bar across the window to restrict access to the roof, but it is not yet installed. However, the Council consider it is too early to take enforcement action because the development works are not complete.
26. Changes were made to the original plans and the developer submitted a retrospective planning application. This application has not yet been decided by the Council.
27. In his response to an earlier draft of this decision, Mr X said the Council failed to take enforcement action and had not used additional funding for planning enforcement to good effect.

My findings

28. 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.
29. 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?
30. 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.
31. 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.
32. I should not investigate this complaint further, and my reasons are as follows:
• Before it made its planning decision, the Council considered the main planning issues, including the impact on neighbouring amenities. From the evidence I have seen, the Council has followed the decision making process we would expect, so it is unlikely we would find fault in the way the decision was made.
• The Council’s case officer shows greenbelt and other policy was considered, before a judgement was made that, although the extension was large, it was acceptable. This was a judgement the Council was entitled to make.
• Because the Council has considered the main issues, it is unlikely that we would be able to conclude the outcome of its planning decision would have been any different. Unless we can show the outcome would have been different, we are unlikely to be able to find a significant injustice we can remedy.
• Mr X alleges a breach of planning control because it is possible to access the flat roof. The Council has explained it cannot consider enforcement action until the development is complete. It is aware of the issue and its powers, and it is making judgements about what has happened. This is the decision making process we expect, so we are unlikely to find fault. We are not an appeal body to judgements that are made during the planning enforcement process.
• Mr X said that he was caused a significant amount of anxiety and stress by what has happened. We do sometimes recommend remedies for stress and anxiety, but we do not normally do so for stress caused by responding to invitations to comment on planning applications or reporting breaches of planning control. Individual third parties are not obliged to take part in the planning process. Where there is no clear evidence to show significant fault in the way the original planning decision was made, or injustice caused by the development itself, it is unlikely we would recommend a financial remedy for stress or anxiety.
• The development was not built in accordance with original plans. The developer has since submitted a retrospective application for changes and amendments to the original plans, which is yet to be decided. The planning process is ongoing, and we cannot assess the Council’s decisions relating to the changes, as the outcome is unknown. It is up to the Council to decide whether to take enforcement action. We are not an appeal body to planning judgements.
• We investigate complaints of fault in the decision making process that cause injustice to individuals. Mr X is concerned about how funding for enforcement in his area is being spent. This is not a complaint we would investigate. Councils make their own decisions about how they use their funds, and their actions are overseen by councillors, officers and auditors.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman