Summary: Mr X complained the Council did not take enforcement action against a developer, who built houses closer than the distance set out in the planning case officer’s report. We found fault but could not show it caused a significant injustice we should remedy or made any difference to the outcome of the Council’s planning decisions.

The complaint

1. Mr X complained the Council did not take enforcement action against development on land behind his home, which was built closer than the distance set out in the planning case officer’s report.
2. Mr X said that his home and garden is now overlooked, and the Council should either require the developer to demolish the building or pay him compensation for the impact on his property’s value.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

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 considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. 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.
11. 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.
12. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
13. 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.
14. 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.
15. Councils have powers to enter land to investigate breaches of planning control and for other purposes, including production of local plan documents and producing local development plans. For considering planning applications, case officers usually restrict site visits to application sites and views visible from public areas. They are not obliged to carry out land surveys to measure or check the veracity of application plans. The onus is on the planning applicant to provide accurate and adequate information the Council will need to make its decision.

What happened

16. The rear of Mr X’s home faces towards a site that was subject of a planning application. The developer proposed to build housing on the land. The proposed building closest to Mr X was a single storey chalet style bungalow with accommodation in the roof void. There were rooflight windows fitted to the roof.
17. The Council’s planning case officer considered the application and wrote a report which included:
• a description of the proposal and site;
• comments from neighbours and other consultees;
• relevant planning policy and guidance, including separation distances in the Council’s local design guide;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions, including one that prevented further changes to the windows using permitted development regulation rights.
18. The application was approved subject to recommended conditions.
19. Mr X complained the new houses were not built in accordance with local design guide separation distances that were described in the case officer’s report. The report said the distance to the Mr X’s property ‘measures at 26m’ and this was incorrect.
20. The case officer’s report also notes that the first-floor window facing Mr X’s home is a rooflight set back a further 2.5 metres from the rear wall of the new building, so it will have less impact than a regular window or dormer window.
21. A planning enforcement officer considered this complaint but said the development was built in accordance with the plans i.e. in relation to the area edged in red on the location plan and the layout of buildings in the block plan. The planning enforcement officer did not comment on the distance to Mr X’s home, as this was not on the application site and so outside the control of the planning authority.
22. Mr X was unhappy with this response, so he complained to the Council through its corporate complaint procedure. In its stage 2 response, the Council acknowledged the discrepancy in the case officer’s report, as it considered the actual distance between Mr X’s home and the nearest of the new buildings was 24 metres, not the 26 metres set out in the report and annotated on drawings provided by the applicant. In its complaint response, the Council explains:
• why it can only control land within the application site; and
• that the discrepancy relates to how buildings are marked on the location plan, which is produced by the Ordnance Survey.
23. The Council went on to say that its planning enforcement decision, that there was no breach of planning control, was correct. This is because the buildings are in the correct locations within the site. It went on to say that despite the acknowledged discrepancy in the case officer’s report, there was more than 21 metres separation distance, which is the figure set out in its planning policy guidance as generally acceptable.
24. Mr X remains unhappy. Mr X says he used a laser measuring tool and found that the distance is only 22 metres. He also said that as the land on the development site is 2 or 3 metres higher than his home, the building should be set back further still, in his view, by 4 metres or more. Mr X would like the Council to compensate him for the impact the development will have on the value of his home. He would also like compensation for the time he spent in pursuing his complaint.
25. The development is now visible on aerial photographs, which include distance scales. I have estimated the separation distance between Mr X’s home and the new building to be about 22 metres, though I cannot provide an exact measurement.

My findings

26. The case officer’s report says that the separation distance ‘measures’ at 26 metres, but the Council now says this is not correct. It says the distance is 24 metres. Mr X said the distance is only 22 metres.
27. The description of the separation distance in the case officer’s report is incorrect and misleading. The case officer gives the impression that the 26 metre measurement is factually correct, yet the Council subsequently said it was not. This is fault.
28. Whenever we find fault, we have to decide whether it causes an injustice for which we can recommend a remedy. To do this, we need evidence that shows, on balance of probabilities, that the outcome would have been different. If we can show the outcome would have been different, we then compare what happened with what we conclude would have happened but for the fault, and then assess the injustice caused by the difference.
29. The Council’s policy normally requires 21 metres separation distance and proportionally more where there is a significant difference in ground levels. So while it is possible that, but for the fault I have found, the outcome might have been different, I need to have evidence to show it is more likely than not that it would have been different.
30. I cannot say that but for the fault I have found the outcome would be different. My reasons for this are as follows. The windows in the roof are set back from the rear wall of the nearest chalet bungalow, and as I understand it, planning authorities generally consider rooflight windows to cause less impact on privacy loss than other construction styles, such as dormer windows. Even though the separation distance is not as large as the officer’s report claimed, I cannot say it is so close or that the impact is so great that the most likely outcome would be a refusal or imposition of further controls.

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Final decision

31. I found fault but cannot show it caused a significant injustice we could remedy or made any difference to the outcome, so I completed my investigation.

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Investigator's decision on behalf of the Ombudsman