Summary: Mr X complained about a Council’s planning decision for development on his neighbour’s land. Which he said affected his residential amenity and loss of bats. We found some fault in the way the Council made its decision, but we have seen no evidence to show it has made a difference to the outcome.

The complaint

1. Mr X complained about a Council's decision to approve his neighbour’s planning application. Mr X said the development would be out of character with the local area, he would lose privacy, and that the developer may have harmed bats during demolition. He complained that:
• planning committee should have made the planning decision;
• the bat survey data was out of date; and
• bats were lost because of lack of enforcement.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

3. I read the complaint and discussed it with Mr X and the Council. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, bat reports and the case officer’s report. I also considered the Council’s policies, relevant law and guidance.
4. 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

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations say they should not.
6. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
7. 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.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
9. 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.
10. 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.
11. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
12. 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.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. The planning enforcement process we expect is for councils to consider allegations and decide what, if any, investigation is necessary. If the council decides a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
14. Not all planning decisions are made by Council planning committees. Councils may delegate decisions to planning officers to make, that are restricted to circumstances set out in delegation schemes. Delegation schemes are found in a Council’s constitution.
15. Certain species (including bats) are protected by law. It is a criminal offence, to:
• deliberately injure or kill a protected species;
• intentionally or recklessly disturb them; or
• damage or destroy a place used for breeding or resting, even if the protected species is not occupying it.

Background

16. Mr X’s neighbour applied for planning permission to demolish an existing dwelling and garage, and to build a new dwelling and garage.
17. Mr X said the proposed development was too high and overbearing and would cause him a loss of privacy. He said the Council delayed acting on the information he gave it about bats on the application site, and this resulted in a loss of bats. He thought the planning application should have gone to planning committee to decide.

Delegated decision

18. The Council’s constitution is set out in its Charter. It says when planning decisions should be made by the planning committee, and when they can be delegated to the Council’s officers. Decisions about delegation may be made by a panel, made up of the Assistant Director for Planning, in consultation with the Chair and Vice Chairs of Planning Committee.
19. Planning officers referred the planning application to the panel. The referral was made because of:
• the number, strength and issues raised in public representations; and
• the characteristics and sensitivity of the site or adjacent sites, including amenity and heritage considerations.
20. Before making its decision, the panel considered comments from a Councillor, a planning consultant and neighbours relating to the development’s scale, loss of privacy, light pollution, visual amenity and wildlife concerns. The panel decided the application did not warrant referral to planning committee.
21. Before a decision on the application was made, the Council’s planning case officer wrote a report which included:
• a description of the proposal and site;
• comments from neighbours and other consultees, including a local councillor and planning consultant;
• relevant planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on visual and residential amenity, highway safety; impact on landscape setting, impact on ecology and biodiversity; and
• the officer's recommendation to approve the application, subject to planning conditions.

Bat protection

22. The applicant submitted a bat risk assessment with the application because the application site was within 200 metres of a Wildlife Improvement Corridor.
23. The applicant’s ecologist surveyed the proposal site including the existing buildings. The ecologist carried out two dusk emergence survey’s undertaken fourteen days apart. The bat report confirmed, a bat entered the roof, but did not remain for long. There was no record of roosting bats. The bat report recommended an ecologist undertake a bat method statement due to the presence of bats.
24. The applicant’s ecologist completed a bat method statement. The buildings were assessed as having low suitability for roosting bats. No evidence of roosting bats was found. The bat method statement set out procedures for the demolition process including:
• the preferred construction period, between early spring and autumn;
• a recommendation relating to roof tile removal, that either a re-entry survey was carried out to confirm no bats were roosting or site supervision by a licensed ecologist.
25. The case officer recommended a condition that all demolition works should be undertaken in accordance with the bat method statement.
26. Mr X said he told the Council five times in fifteen days bats were present in the application site and updated the Council when works started on site. He complained the Council acted with delay and the bat survey was out of date.
27. The Council’s enforcement protocol sets out the procedure and timescales for the enforcement process. Bats are a protected species and so should be a priority 1 enforcement case. For priority 1 cases, the first site visit will be within one working day from the receipt of the complaint.
28. The Council’s ecologist reviewed the application and was satisfied with the applicant’s survey work and recommendations. Conditions about bats were attached to the planning application. In response to the complaint the Council said it had considered the Chartered Institute of Ecology and Environmental Management guidance and the lifespan of an ecological report. The Council’s ecologist confirmed the applicant’s report was not out of date.
29. The Council said the demolition started in the summer and the case officer asked the Council’s ecologist for advice two days later. The case officer spoke to the applicant’s agent to ask work stopped on site four days later.
30. A re-entry bat survey was not conducted before the roof tiles were removed and an ecologist was not on site. The applicant’s ecologist explained they spoke to their client while the roof tiles were being removed. They considered this an adequate and precautionary method of site supervision.
31. The Council decided there was no breach of condition because no bats were found in the property and there was no evidence of roosting bats. The Council found no evidence to show bats were disturbed because of the demolition works.
32. The Council did accept there was delay in considering the alleged breach of condition and has reminded staff of the importance of acting quickly with protected species complaints in line with its enforcement protocol.

Residential amenity

33. Mr X complained the scale of the new dwelling would impact on his residential amenity. In particular, he said it would be overbearing and lead to a loss of privacy. The new dwelling is 51 metres to the north of Mr X’s house. The case officers report noted the distance and said it would accord with the space standards within the Council’s informal spacing standard guidance.

My findings

34. 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.
35. I have considered the processes by which the decisions were made and my findings are as follows.

Delegated decision

36. Mr X wanted the planning application to go to planning committee. The case officer referred the application to the panel to decide if it should be referred to committee. The panel agreed the application fell within the Council’s delegation criteria, so could be decided by officers. The panel followed the process we would expect and so I find no fault.

Residential amenity

37. The distance between the new dwelling and Mr X's house is in line with the Council’s informal spacing standard guidance. The distance is also significantly greater than is generally considered acceptable. The officer report says the distance protects Mr X's privacy within his dwelling. I am satisfied the Council have considered this part of the complaint properly and so I find no fault.

Bat protection

38. Mr X told the Council bats were present at the application site five times over a 15 day period. Bats are a protected species and are classed a high priority enforcement case in the Council’s enforcement protocol. The Council did not undertake a site visit within 1 working day of the complaint, as is required by the protocol. This is fault.
39. The Council found no bats roosting on the site and decided there was no breach of planning control. The Council has reminded its staff to act quickly and in accordance with its protocol in future. I have no further recommendations to make. I cannot show that, even if the Council had acted more quickly, the outcome would have been any different.
40. The bat method statement recommended a preferred time of year for construction work. The work did not happen during these times. It also recommended a new survey or site supervision. The applicant’s ecologist chose to supervise the site by speaking to the contractor and explaining how to strip the roof.
41. The Council considered what happened, taking account of relevant guidance. It found no evidence of a breach of planning control. It followed the decision-making process we would expect. This is a judgement it was entitled to make.

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Final decision

42. I have completed my investigation. Although I found some fault, I could not show it made any difference to the outcome of the planning decision.

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Investigator's decision on behalf of the Ombudsman