Summary: Mr X complained about the Council’s decision to grant planning permission for development of a property near his home, and how it handled his complaint about this. There was no fault in how the Council made its planning decision, but it was at fault in how it handled Mr X’s complaint. This caused Mr X confusion for which the Council agreed to apologise. It will also review its complaints procedure and issue guidance to its staff.

The complaint

1. Mr X complains about the Council’s decision to grant planning permission for development of a property near his home in 2021. He says it applied its planning consultation policy inconsistently and did not consult him on the application, so he only found out about the development after the works had started. He also says the Council did not properly consider his complaint about this.
2. Mr X says the development overlooks and devalues his property, affecting his amenity and privacy, and its appearance is not suitable for the local area. He wants the Council to:
• apologise;
• revoke the planning permission or impose conditions on it retrospectively. If this is not possible he wants it to fund screening measures to mitigate the impact on his home and provide compensation for the loss of value to his property;
• compensate him for the distress these issues caused;
• ensure it applies its planning consultation policy consistently; and
• ensure it responds to complaints in good time.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation from the Council’s planning portal;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning law and guidance

8. Councils may grant planning permission for the development of land (including its material change of use), subject to conditions.
9. Councils are required to publicise planning applications. The publicity needed depends on the nature of the development and a council’s own policies. This is usually set out in a council’s “Statement of Community Involvement”. All applications must be published on a council’s website. In this case, the requirement was also for a site notice, or notification of “any adjoining owner or occupier”. The legislation defines an adjoining owner or occupier as “any owner or occupier of any land adjoining the land to which the application relates”. (The Town and Country Planning (Development Management Procedure) (England) Order 2015, section 15)
10. The National Planning Policy Framework (NPPF) sets out the government’s planning policies for England and how it expects these to be applied. The NPPF does not change the statutory status of a council’s local development plan as the starting point for decision making. A council should approve planning applications that accord with its local development plan unless material planning considerations show otherwise. Material considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.

Material considerations do not include things like:

• impact on views from another property;
• the impact of the development on property value; and
• private rights and interests in land.
4. Before planning decisions are made, council planning case officers often write reports to set out their views and recommendations to inform the decision maker. The purpose of the report is not merely to facilitate the decision, but to show decisions were properly made and due process followed. The courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

The Council’s planning policy

12. The Council’s Statement of Community Involvement says for applications of this type it will consult on the application for a period of 21 days. It will:
• place documents and information considered to be relevant on its website; and
• either display at least one site notice near the proposal site or notify occupiers of “adjoining properties”.
13. The Council’s local plan documents include a ‘Design Supplementary Planning Document’ (SPD). This “provides guidance on how a high standard of design can be met”, which it says, “shall be used as material considerations in the determination of planning applications”. This SPD says:
1. “not all proposals will necessarily need to address all the guidance in the [SPD]. Some of the guidance will be more relevant for certain proposals than others”;
2. “the size, style and proportion of new doors and windows are [an] important consideration in the design of new extensions… Windows with different proportions and patterns of panes on the same wall create an unsettling and unbalanced appearance”;
3. “unless there are existing dormers in the area, new dormers are likely to be out of character with its surroundings… If dormers are used, they should be as small as possible…”; and
4. “when considering the layout of dwellings on a site, developers should consider the distance that separates rear elevations of individual dwellings in the interest of protecting the privacy and avoiding overbearing impact for both existing and future residents”. It says where “rear building elevations” contain “main habitable room windows”, the following distances “provide a guide to protect the loss of privacy”:
• 21 metres for 2 storey dwellings;
• 27.5 metres where main habitable room windows above ground floor level would overlook existing conventional dwellings; and
• the separation distance should be increased by 1 metre for every 0.4 metre difference in floor levels between dwellings.

It says it “is important to note that these do not serve as strict requirements. The distances will be applied having regard to the wider design issues and site context but will generally be more important considerations when developing sites that are close to existing buildings.”

The Council’s complaints policy

14. The Council’s complaints policy gives examples of issues it will not consider via its complaints procedure because “there are other processes more suitable for dealing with them, or because they are outside the Council’s control”. This includes complaints about:
• “matters of law or central government policy”; and
• “the correct application of Council policy, or… matters for which there is a right of appeal (an appeal within the Council or to an independent tribunal)”.

Background

15. In early 2021, the Council granted planning permission for development of a property near Mr X’s home. A year later, the building works began, and Mr X became aware of the development for the first time. He contacted the Council raising concerns that it overlooked his back garden and property, and it had not consulted him during the planning approval process.
16. Four days later, the Council responded to Mr X and explained how it had applied its planning consultation policy. Mr X sought further clarification from the Council and it responded at Stage 1 of its complaints procedure three weeks later. It apologised for its delay in responding and said it did not uphold Mr X’s complaint.
17. Seven weeks later, Mr X responded to the Council to provide more detail about his concerns about the appearance of the development and the impact on his amenity. Mr X said he considered this to be his first formal complaint. The Council responded six weeks later. It apologised for its delay in responding and said Mr X’s complaint fell outside the scope of its complaints procedure. It said, “The Complaints Policy excludes matter[s] relating to the correct application of Policy” and “it has been confirmed that the Officers have followed Council Policy and therefore, the matter should not have been progressed through the complaints process”. Mr X came to the Ombudsman six months later.

My findings

How the Council consulted about the planning application

18. The Council publicised the application for 21 days by publishing it on its website and notifying relevant neighbours. It consulted in line with both statutory requirements and Council policy. Mr X’s property does not sit on land which adjoins the applicant’s land. Therefore, he is not an “adjoining owner or occupier” according to the definition set out in planning law, as described at paragraph 9. Therefore, he was not consulted.
19. Mr X also said the Council applied its planning consultation policy inconsistently because he:
• was previously consulted about other local planning applications where he did not share an adjoining boundary with the applicant, and which he considers had less of an impact on him; and
• is aware of other local planning applications, where the Council consulted properties which did not share a boundary but were otherwise close to the application site.
20. I accept the Council may have gone over and above the minimum requirements of the law and/or its policies when consulting on other applications in the past. It may have judged it appropriate to do so, in different circumstances. I understand Mr X views this as unfair and believes it demonstrates a lack of consistency in the Council’s application of its policy. However, since the Council consulted about this application in line with the law and its own policies, there was no fault in how the Council consulted about the application. Our role is to review the process by which planning decisions were made. Planning officers may use their professional judgment when deciding which nearby properties to consult, so long as they do so within the law and Council policy. We cannot question the professional judgment of planning decision makers where this was not affected by fault.

How the Council considered the planning application

21. The planning officer considered the final application and wrote a report which included:
• a description of the proposal and site;
• details of planning policy and guidance considered relevant;
• a summary of relevant planning history;
• confirmation it received no comments from those it consulted;
• an appraisal of the main planning considerations, including the development’s design, scale and appearance, its impact on neighbouring amenity, and its impact on local highways and parking; and
• the officer’s recommendation to approve the application, subject to planning conditions requiring the developer to complete the works using specified materials, within a certain timescale, and in accordance with the approved plans.
22. Mr X said the planning application was not compliant with the Council’s ‘Design Supplementary Planning Document’ (SPD). He said:
• the development works included a new dormer window, which overlooked his garden and property, affecting his privacy and amenity. He said this did not comply with the part of the SPD referred to at paragraph 13d; and
• the appearance of the development was not suitable for the local area and was not compliant with the parts of the SPD referred to at paragraphs 13b and 13c.
23. We are not a planning appeal body. Our role is to investigate the process a council followed, to assess whether it made its planning decision properly. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of planning decision makers where the process was not affected by fault. I am satisfied there was no fault in how the Council considered the planning application because:
• the planning officer’s report showed the Council took account of the main planning considerations before making its decision. It considered the plans, planning history, relevant policy, impact on neighbouring amenity including privacy, and noted it had received no comments from consultees. This is the decision-making process we would expect;
• the Council considered the impact on the amenity of closer neighbouring properties, and its SPD. It decided any effects on these neighbouring properties would be acceptable. We cannot question the Council’s professional judgment about this. I note the report did not refer to Mr X’s property. It is important to note the distances set out in the Council’s SPD are guidance only and not strict requirements. Nevertheless, I considered what the SPD says about separation distances. I do not consider the distance between Mr X’s property and the applicant’s to be close enough that I would find fault with the Council for not considering this specifically in its report; and
• the Council considered the design of the development, and its SPD. It decided the development would “not be harmful to the character or appearance of the street scene”. We cannot question the Council’s professional judgment about this. I also note the applicant had withdrawn a previous application for the same development a few months earlier following advice from the Council that the proposed appearance of the design would not be acceptable. They had therefore made changes in this later application.
24. Furthermore, I do not consider the Council’s decision to approve the development caused Mr X an injustice, because my view is the development did not cause a significant change to Mr X’s existing amenity. This is because:
• Mr X and the applicant do not occupy adjoining properties. Although there is a difference in ground levels between the properties, they are separated by a road, a fence, and a line of mature trees which provide some screening;
• the applicant’s property already included a window on the elevation facing Mr X’s property. Although the works included a new dormer window on this elevation, this was in a similar position to the existing window and the total building height remained the same;
• another nearby property already includes a dormer window on the same elevation facing Mr X’s property. This is the same distance from Mr X’s property, if not closer; and
• in response to Mr X’s complaint the Council provided its view on the impact on Mr X’s amenity specifically and said it did not consider the impact to be unacceptable. This suggests had the Council considered Mr X’s property specifically in its report this would not have changed its decision to approve the application.

Complaint handling

25. Mr X said he did not consider his first contact with the Council to be a complaint. In this email Mr X said, “Please can you look into what has gone wrong here” and said he was “extremely unhappy about not being consulted”. I do not consider the Council was at fault for treating this as a complaint, as Mr X was expressing dissatisfaction with Council services.
26. Mr X also said the Council took too long to respond to his complaint and he had to spend time chasing this. I have considered how long the Council took to respond to Mr X’s concerns and do not consider it took an undue length of time for which I would find fault. I note the Council apologised to Mr X at the time for any slight delays.
27. However, my view is the Council was at fault when it told Mr X his complaint fell outside the scope of its complaints procedure because it related to “the correct application of Council policy”. It is my view that for any complaint, the Council would need to properly consider a complainant’s concerns through the complaints procedure in order to establish whether it had applied its policies correctly or not. People should also be able to complain to the Council if they think its policies are wrong, for example if they think they are unlawful. Furthermore, our view is all councils should have a complaints procedure to consider planning complaints such as Mr X’s. There is no other route by which Mr X could have pursued his concerns. In the absence of any separate planning complaints policy, the Council should have considered this through its main corporate complaints procedure. I consider the information provided to Mr X was unhelpful and confusing, and the Council should apologise for this. However, I do not consider it changed anything in Mr X’s case because the Council had already responded to his concerns about the impact of the development on his property in its earlier communications with him. The Council correctly signposted Mr X to the Ombudsman and he was able to come to us within the required timescales.

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Agreed action

28. Within one month of our final decision, the Council will apologise to Mr X for the confusion it caused when it wrongly told him his complaint was outside the scope of its complaints procedure.
29. Within three months of our final decision, the Council will review its complaints procedure and issue internal guidance to relevant staff to clarify:
• planning complaints such as Mr X’s are within the scope of its complaints procedure; and
• what is meant by the statement in its complaints policy that complaints about “the correct application of Council policy” are out of scope.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. There was no fault in how the Council made its planning decision, but it was at fault in how it handled Mr X’s complaint. This caused him confusion for which the Council agreed to apologise. It will also review its complaints procedure and issue guidance to its staff.

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Investigator's decision on behalf of the Ombudsman