Summary: Mr X complained about the Council’s decision to approve a retrospective planning application for development on land behind his home. We did not investigate the complaint further because we are unlikely to find fault, recommend a remedy or achieve any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application for a car park, retaining wall and fence behind his home.
2. Mr X said the fence caused an overbearing impact on his home and construction work resulted in damage to a drain which caused an increase in flooding and rat infestation in the area.
3. Mr X would like the Council to quash the planning decision and for its planning enforcement officers to require the lowering of land levels near his home.

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The Ombudsman’s role and powers

4. 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
• we cannot show that any alleged fault has caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

5. 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.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I will consider their comments before making a final decision.

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What I found

Planning law and guidance

7. Planning applications are usually made before development begins. However, sometimes applications are submitted afterwards, and these are known as ‘retrospective planning applications.
8. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
10. 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.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
13. The impact development might have on land drainage can be a material planning consideration. If land drainage is judged to be an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
14. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.

What happened

15. The land behind Mr X’s home was raised to extend a car park area for a business. The Council received complaints and planning enforcement officers visited the site. The developer submitted a retrospective planning application so the changes could be considered against local plan policies.
16. The Council’s planning committee visited the site to assess the impact the development would have on the amenities of neighbouring properties. A planning case officer wrote a report setting out the main planning considerations and their recommendations.
17. The planning case officer report included:
• A description of the proposal and site;
• A summary of planning history;
• Details of planning policy and guidance considered relevant;
• A summary of comments from neighbours and other consultees;
• An appraisal of the main planning considerations, including impact on amenity, highway safety and drainage; and
• The officer’s recommendation to approve the application, subject to planning conditions.
18. The report referred to the impact the development would have on neighbouring properties. The case officer said that, in their view, the impact would be acceptable. The Council approved the application subject to planning conditions.
19. Mr X said that because of what has happened:
• The outlook from his home is badly affected, as the wall and fence are high and overbearing;
• During development works, a drain was damaged, and this caused surface water run-off problems on his land. Mr X also said that rats from the drain have infested the land around it; and
• Because of delay in responding to him, he was too late to take legal action for judicial review of the Council’s decision.

My findings

20. 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.
21. 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?
22. 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.
23. 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.
24. I should not investigate this complaint further, because:
• The remedies Mr X wants are not of the kind we can recommend. We are not a court and cannot quash planning decisions. Where there is a breach of planning control, we cannot decide what enforcement action should be taken – that is a matter for the discretion of the planning authority.
• Before it made its decision, the Council considered the application plans, the development as it affected its surrounding, relevant policy and guidance and the comments of neighbours and other consultees. This is the decision-making process I would expect and so I am unlikely to find fault.
• In relation to the development as it affects Mr X, I can see that impact on amenity of the wall and fence was considered by the planning committee but thought to be acceptable. Because of this, even if there had been evidence of some fault in the decision-making process, it is unlikely we would be able to show the outcome would have been different in so far as the development affects Mr X.
• Drainage issues were considered before a decision was made. If the developer has indeed caused damage to neighbouring properties, this would be a private matter between the landowners. Councils are not responsible for the acts of individual landowners.
• Regarding the rats, it is difficult to see how the source of any increase could be proven or how this could be a direct consequence of the Council’s planning decision.
• Councils are not obliged to provide legal advice to individuals who challenge their decisions. It is up to the courts to decide whether the legal time bars for judicial review challenges do apply or should be applied in particular circumstances.
25. For these reasons, I am not satisfied that further investigation is likely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

Final decision

26. I ended my investigation as it was unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman