Summary: We will not investigate Miss X’s complaint about the prose the Council followed to determine a planning application by her neighbour for an extension. There is not enough evidence of fault in the way the Council determined the application to warrant us investigating. We also cannot achieve the outcomes Miss X seeks from her complaint which is a further reason for us not to investigate.

The complaint

1. Miss X lives next to a property whose owners sought and received planning permission for an extension. She complains the Council:
1. failed to give due consideration to her and the Parish Council’s objections to the development;
2. incorrectly allowed the extension when a planning condition on the permission allowing the host property to be built meant it could not be extended;
3. did not apply the correct planning policy guidance when determining the application.
2. Miss X says the extension will result in loss of light to her property. She says the location of the extension will mean she will be unable to maintain her house’s side wall, which may cause damp and affect the building’s structural integrity in future. Miss X says the extension creates a ‘terracing’ effect, which a covenant was there to stop. She has spent £300 to consult with a solicitor regarding the covenant. Miss X wants the Council to stop the development going ahead, or to amend the extension so it is further away from her side wall.

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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
• we cannot achieve the outcome someone wants.

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

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)

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How I considered this complaint

5. I considered information from Miss X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

6. We cannot go behind a council’s decision unless there is evidence of fault in its decision-making process and that fault would have resulted in a different decision being made. We therefore consider the process a council has followed when making its decision.
7. Miss X says the Council did not properly consider her and the Parish Council’s objections to the planning application. The evidence of the Council’s planning officer’s report shows it took account of all objections received, including those from Miss X and the Parish Council. Officers determined the objections did not give them material planning grounds to refuse the permission sought by the applicant. They made that decision after assessing the level of planning harm the development would have on Miss X’s property. The planning officer recognised there would be some impact on Miss X’s property’s amenity caused by the extension. But they took the view that the harm was not sufficient to justify a planning refusal. That was a decision they were entitled to make. There is not enough evidence of fault in the process the Council followed to consider this planning application, including its handling of the objections, to warrant us investigating. I realise Miss X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
8. Miss X appears to consider making an objection requires the planning authority to refuse an application, or amend it in line with what an objector’s suggestions or recommendations. That is not the case. Councils as planning authorities are required to determine applications in the final form received from the applicant and decide whether to grant or refuse them permission. They are also required to consider the objections and respond where they raise material planning matters. But there is no requirement for them to agree with those objections. This applies for all objections, whether from residents or other consultees such as parish or town councils.
9. Miss X says the Council should not have allowed the extension because a planning condition on the permission allowing the host property to be built meant it could not be extended. When the host property was built, the Council imposed a condition removing ‘permitted development’ (PD) rights from the site. PD rights allow many householders to develop their properties, to the extent allowed by the PD requirements in place at the time of development, without the need to apply for permission to the planning authority. Removal of permitted development rights from a site does not mean no further development can ever be allowed on that site. It does mean any proposed development can only be allowed by submitting an application to the planning authority. The applicant was complying with the requirement of the earlier PD removal condition by making such an application for their proposed extension. The Council as the planning authority was required to consider and determine it. There is not enough evidence of fault by the Council in considering and determining this planning matter to warrant investigation.
10. Miss X says the Council did not use the correct planning policy guidance when determining the application. The Council says its website explains previous policies which might have previously been relevant to the application had been withdrawn in 2018 by decisions made by its cabinet. The planning officer’s report refers to the active policies it used when determining the application. There is not enough evidence of fault on this issue to justify an investigation.
11. I recognise Miss X is concerned her neighbour’s extension may damage her property in future because it provides insufficient space to maintain her side wall. The Council has explained those matters are not material planning issues. If Miss X believes the development causes such damage, this would be a private civil matter between her and the neighbouring property’s owner.
12. I understand Miss X has consulted a solicitor regarding a covenant which aims to prevent works to properties on the estate leading to a ‘terracing’ effect on the street scene. As the Council has stated, covenants are not material matters which can form part of the planning process. They are agreements or undertakings between the properties’ owners. If Miss X considers her neighbour has breached a covenant held with her and other neighbours, that would be a matter between those parties, not for the Council.
13. The outcome Miss X wants from her complaint is for the Council to stop the neighbour building the extension, or to amend it so it is further from her side wall. Either of these outcomes would require a revocation of the permission as already granted. We cannot order councils to revoke planning permissions. That we cannot achieve the outcomes Miss X seeks from her complaint is a further reason why we will not investigate.

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Final decision

14. We will not investigate Miss X’s complaint because:
• there is not enough evidence of fault in the Council’s planning decision‑making process to warrant an investigation; and
• we cannot achieve the outcomes Miss X seeks from her complaint.

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Investigator's decision on behalf of the Ombudsman