Summary: Mr X complained about the Council’s decision to approve his neighbour’s planning application. We did not investigate this complaint further, as we were unlikely to find fault, evidence of a significant injustice or achieve any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision to approve his neighbour’s planning application for a large house extension. Mr X said the Council failed to protect his amenities, particularly the use of his garden patio area, which is close to where the extension would be constructed.
2. Mr X would like the Council to revoke its approval of the development.

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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 or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged 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
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

4. 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.
5. 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

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. 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.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. 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.
11. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
12. However, 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.
13. Regulations set out the minimum requirements for how councils publicise planning applications.
14. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
15. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
16. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

Background

17. Mr X’s neighbour submitted a planning application for a proposal to build a large wrap around extension at the rear and side of their home. The side extension is planned to be on the elevation closest to Mr X’s home. The extension has not been built yet.
18. The application was publicised by neighbour notification letter. I checked the Council’s SCI, which allows discretion on whether neighbour notification letters or site notices are used to publicise applications. Mr X was aware of the application and sent comments in with his objections to the proposed development.
19. The Council’s planning case officer considered the application, visited the site and wrote a report. The case officer’s report included:
• a description of the proposal and site;
• a summary of comments from the public;
• details of relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and design and appearance; and
• the officer’s recommendation to approve the application, subject to planning conditions.
20. The Council approved the application, including conditions controlling a hedge on the shared boundary and windows on the first floor of the side elevation facing Mr X’s home.
21. Mr X believes the application was not properly considered, and that because of this, the impact on his garden was not taken into account. Mr X believes this should have been one of the key planning considerations.
22. In its response to his complaint, the Council accepts that the case officer’s report was imperfect, particularly in the way it:
• implied the new extension would be partly built above a single storey porch; and
• the way parking arrangements were explained.
23. However, the Council does not consider these matters made any difference to the outcome of its decision.
24. In response to an earlier draft of this decision, Mr X said the Council had also failed to put up a site notice to advertise the application.
25. The case officer report refers to neighbour notification letters being sent, but makes no reference to a site notice. The regulations do not require a site notice and neighbour notification letter, and neither does the Council’s SCI
26. I asked the case officer whether a site notice was put up, and whether they had considered the impact the development would have on Mr X’s garden.
27. The case officer said the Council did not put up a site notice, but this was a judgement that was within its discretion.
28. The case officer said they did consider the impact the development would have on Mr X’s house and garden, though made no direct reference to the impact on the garden in the report. The case officer said that, as this was a rear extension, the existing gap between the buildings was maintained, and a hedge was retained using a planning condition. In their view, the impact of the extension on Mr X’s amenities was not excessive and refusal or further planning controls were not justified.
29. The officer said with hindsight, it might have been better to explicitly separate consideration of the impact on Mr X’s house and garden, though they had both in mind when expressing their views about residential amenity.

My findings

30. 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.
31. 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?
32. 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.
33. 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.
34. I should not investigate this complaint further, and my reasons are as follows:
• The case officer report shows the main planning considerations were taken into account. The evidence shows the case officer knew what was proposed and where Mr X’s home was in relation to the site. In these circumstances, it is unlikely we would find evidence of significant fault that would lead us to conclude the outcome would have been different.
• Mr X believes the impact on garden amenity areas should have been treated as one of the key or principal planning considerations. He believes the Council was at fault for not referring to the impact the development would have on the use of his garden. Though this issue was a material planning consideration, it is not clear to me that it was such a key or controversial matter that I should say it should have been explicitly referred to it in the report. Also, after speaking with the case officer, I am satisfied they did take account of the impact on the garden before making their recommendation to approve the application subject to conditions.
• Mr X would like us to compare this approval with other decisions the Council has made, as he believes this decision is unusual. Again, we are not a planning appeal body and would not be able to use our own judgement to decide whether this or other proposals are acceptable in planning policy terms. Our focus is on evidence of fault in the decision making process that is likely to have caused a significant injustice we should remedy. For the reasons given above, I consider it unlikely that further investigation would result in such a finding.
• In relation to Mr X’s complaint about the failure to post a site notice, I find no evidence of fault. The regulations and Council policy in its SCI both allow discretion, so either a site notice or a neighbour notification letter were acceptable choices.

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Final decision

35. I ended my investigation as it is unlikely to result in a finding of fault, a significant injustice to Mr X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman