Summary: We will not investigate this complaint about the Council granting planning permission for a development involving the raising of land and fencing next to the complainant’s 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 affecting the outcome, the Council has taken appropriate action to address the lack of communication, and there is another body better placed to consider the complainant’s concerns about the Council’s response to her subject access requests.

The complaint

1. The complainant, whom I refer to as Mrs X, says the Council should not have granted planning permission for a development involving the raising of land and a fence in order to erect an outbuilding at a neighbouring property. She says the works have caused drainage problems in her own garden.
2. Mrs X also says the Council failed to communicate with her about the planning application outcome and has failed to adequately respond to her subject access requests (SARs).

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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 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
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider the complaint, or
• the Council has already taken appropriate action in response to the complaint.

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

4. And 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. Finally, we normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection, including SARs. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered information provided by Mrs X and the Council, which included their complaint correspondence and documents on the planning application file.
7. I also considered our Assessment Code, and Mrs X’s comments on an earlier version of this statement.

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My assessment

8. I have decided we will not investigate this complaint for the following reasons.
9. Whilst I recognise Mrs X disagrees with the Council’s decision to approve her neighbour’s planning application, we do not provide a right of appeal against that decision. Rather, we consider if there was administrative/procedural fault in the way the decision was made, and whether any fault is likely to have affected the outcome.
10. I have seen nothing to suggest fault in how the Council has handled the case that is likely to have affected the overall outcome. In reaching this view, I am particularly mindful that:
• Private/civil issues between neighbours are not matters councils can take into account when determining planning applications. So, Mrs X’s concern about the impact of the development on drainage at her property was not something the Council could consider when assessing the planning merits of the scheme.
• Two council officers visited the application site, and the Council’s complaint response says the case officer was able to view Mrs X’s boundary and garden by looking over the fence. The notes of the visit also demonstrate the case officer was aware of Mrs X’s concerns about drainage. And there is no requirement for council officers to visit neighouring properties when determining a planning application.
• The case officer’s report also acknowledges Mrs X’s concerns about drainage, and considers the impact of the proposal on neighbouring amenity in terms of privacy.
• Although the raised fence is not referred to in the description of the development, the site visit notes demonstrate the case officer considered whether acceptable levels of privacy were afforded by the boundary treatments. So, even if a separate planning application was required for the raised fence on Mrs X’s side, it seems very likely the Council would find this acceptable in planning terms.
11. As the overall outcome is likely to have been the same, we cannot say Mrs X has suffered an injustice as a result of the alleged faults by the Council. An investigation by the Ombudsman is unlikely to lead to a different planning outcome either.
12. The Council has also apologised for failing to inform Mrs X about the outcome of the application. It says it has taken steps to ensure people who report an alleged breach of planning control in the future are informed of the decision on the case. I consider this to be a satisfactory way to address this part of the complaint.
13. Lastly, if Mrs X has concerns about the Council’s response, or lack of, to her SARs, then I consider it reasonable to expect her to contact the ICO, which has particular expertise in dealing with such matters.

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Final decision

14. We will not investigate Mrs X’s complaint because there is not enough evidence to suggest fault has affected the outcome, the Council has taken appropriate action to address the lack of communication, and there is another body better placed to consider any concerns about the SARs.

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Investigator's decision on behalf of the Ombudsman