Summary: We will not investigate this complaint about the Council’s consideration of a planning application and associated enforcement matters relating to a development next to the complainants’ home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault causing injustice to the complainants, and the Council has apologised for the delay in responding to their complaint.

The complaint

1. The complainants, whom I refer to as Mr & Mrs X, complain about the Council’s determination of a planning application for a residential development next to their home, and its consideration of an associated enforcement issue. In summary, they say:
• The Council failed to properly consider the loss of privacy to their garden, and the ground and first floor windows which serve habitable rooms.
• The new dwellings have been built closer to their property than shown on the approved plans, but the Council has decided not to take enforcement action.
• The Council delayed in responding to their subsequent complaint.

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The Ombudsman’s role and powers

2. The Ombudsman can investigate 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 an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• the Council has already taken satisfactory action in response to the complaint.

(Local Government Act 1974, section 24A(6) & (7))

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How I considered this complaint

3. I considered information provided by Mr & Mrs X and the Council, which included the Council’s complaint responses.
4. I also considered our Assessment Code, the recording of the Planning Committee meeting, and information about the planning application on the Council’s website.

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My assessment

5. I recognise Mr & Mrs X are very unhappy about the Council’s decision to grant planning permission for this development, and that it decided not to take enforcement action when the ‘as-built’ separation distance was found to be less than shown on the approved plans.
6. But the Ombudsman does not provide a right of appeal against these kinds of decisions. Rather, our role is to review the process by which planning and enforcement decisions are made, and to consider if any fault is likely to have affected the outcome.
7. With regard to the determination of the planning application, there is not enough evidence to suggest fault has affected the outcome, so Mr & Mrs X have not been caused an injustice by the alleged errors. We will therefore not investigate this part of the complaint. In reaching this view, I am mindful that:
• Although the Council accepts the Committee report incorrectly referred to a 26m separation distance, the 22m separation distance shown on the proposed plans, and referred to at the Committee meeting, does comply with the Council’s planning guidance.
• Mr & Mrs X’s relative spoke at the Committee meeting, with references being made to the affected windows and the use of the rooms. Photographs of the existing outlook from these rooms were also shown. As such, the Committee would have been aware of Mr & Mrs X concerns and the proximity of the proposed development to their home.
• The Planning Committee referred to Mr & Mrs X’s privacy during the debate/discussion on the proposal.
• Conditions were imposed which restrict the installation of new windows in the first-floor side elevation of the nearest new dwelling, and require the submission of boundary treatment details.
8. There is also not enough evidence of fault by the Council in the way it considered the associated enforcement case to justify the Ombudsman investigating this matter either. Enforcement is discretionary, and government guidance advises planning authorities to act proportionately in response to breaches of planning control. The Council found the ‘as-built’ separation distance was 21.68m instead of 22m. It was entitled to reach a professional judgement that it was not expedient to take enforcement action against a discrepancy of 32cm.
9. Finally, the Council has apologised for the delay in providing responses during the subsequent complaints process. This was a satisfactory way to address this part of the complaint, so the Ombudsman will take no further action on it.

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Final decision

10. We will not investigate Mr & Mrs X’s complaint because there is not enough evidence of fault causing injustice, and the Council has apologised for the delay in responding to their complaint.

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Investigator's decision on behalf of the Ombudsman