Summary: Mr X complained about the Council’s approval of his neighbour’s planning application and its failure to take effective action against several breached of planning control. We did not found fault with the Council’s actions.

The complaint

1. Mr X complains the Council failed to properly consider the amenity of his property when approving his neighbour’s planning application and during enforcement action. He also complains about the Council’s general handling of this matter, including his complaint.
2. Mr X says this has severely impacted the privacy and enjoyment of his home, especially his master bedroom. He says it has also significantly reduced the value of his property.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

4. 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)

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 read the information provided by Mr X and discussed the complaint with him.
7. I made written enquiries of the Council and I considered its response and any supporting documents it provided.
8. 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

Relevant law and guidance

Planning applications

9. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
10. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. Council officers are not obliged to carry out site visits before deciding on a planning application. Officers will often be able to identify the impact of a proposed development using maps, ariel photographs and other tools such as Google Streetview.
13. A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
14. The Ombudsman will consider whether the decision-makers had enough information in front of them to make an informed decision.
15. The Town and Country Planning Act (1990) allows planning applicants the option to submit an application seeking minor-material amendments (MMA) once planning permission has been granted. There is no statutory definition of a minor-material amendment. However, the government’s ‘Planning Practice Guidance: Flexible Options for Planning Permissions’ says a MMA “… is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved”.

Planning enforcement

16. Government guidance explains how councils should use their powers. Enforcement action should only be taken if it would be a proportionate response. In reaching a decision, councils should consider what harm is caused to the public by the unlawful development. If a council decides it would approve an application for the development, further enforcement action is not likely to be in the public interest.
17. Councils can ask applicants to regularise breaches by submitting a retrospective planning application, including an application for a MMA.

What happened

18. Below is a summary of the relevant facts pertinent to this complaint. It is not meant to be a full chronology.
19. In late 2021, Mr X’s neighbour (Mr P) submitted a planning application to the Council to construct an additional storey to his property. Mr P started construction before planning permission had been granted.
20. Mr X reported this to the Council. The Council investigated the matter and advised Mr P to stop construction.
21. Mr X also submitted comments on the pending application. Whilst he did not object to the development in principle, he wanted the Council to be aware of its overbearing nature and dominance. He asked the Council to attach conditions to the planning permission, including privacy screening and obscured glass.
22. The case officer’s report acknowledged there were windows in the side elevations but “could be conditioned where appropriate to prevent any adverse effect on neighbouring properties”.
23. Planning permission was granted in April 2022 without conditions relating to Mr X’s privacy.
24. In May 2022, Mr X became aware the development did not comply with the permission that had been granted. In particular he was concerned about a large window overlooking his master bedroom that was not on the approved plans.
25. Again, the Council investigated and found there were some deviations from the planning permission. In July 2022, Mr P was advised to submit a Minor Material Amendment application to regularise the breach. Mr P initially submitted the wrong type of application. The correct application was finally submitted in April 2023. The application sought approval for several additional windows.
26. This application was approved in July 2023. This included conditions that certain windows would have obscure glazing.

Mr X’s complaint to the Council

27. Mr X complained to the Council on 25 May 2022 about the processes that had been followed when approving Mr P’s first planning application and how the breaches had been dealt with. He raised the following concerns.

• The planning process was outsourced to an external agent who was not local to the area and had not visited the site.
• As the extension was near completion and its enforcement had been involved, the Council was aware of the negative impact it already had on Mr X’s property. This should have been reflected in the case officer’s decision.
• The submitted plans were inaccurate.
• The Council failed to recogise the significant impact on Mr X’s amenity.

28. In response the Council explained:

• there was no duty to carry out a site visit; and
• the case officer properly considered the impact on Mr X’s properly but decided the degree of overlooking was acceptable in the urban context it did not have a material adverse impact.

29. Overall, the Council said it was satisfied Mr P’s application was correctly approved and it had properly considered the impact the development would have on Mr X’s privacy.
30. Mr X asked for his complaint to be reviewed in September 2022. He was particularly concerned about the significant overlooking from the roof terrace that was now in situ and overlooked his bedroom. He asked the Council to take action to mitigate the impact on his amenity, including a privacy screen. He also raised concerns about the Council’s failure to tale enforcement action against the various unauthorised aspects of the development.
31. The Council failed to log Mr X’s request for a review and did not respond until June 2023
32. In response, the Council made the following points.

• It accepted there was delay in responding to Mr X’s complaint.
• The roof terrace was in keeping with the urban setting. The Council was also satisfied its siting and relative position to Mr X’s property did not give rise to a detrimental impact on Mr X’s amenity to an extent that it would have justified refusing the application.
• It Council accepted a privacy screen would improve the situation.
• It would seek to negotiate a voluntary agreement from Mr P to erect a privacy screen. However, this could not be a condition of the outstanding planning application because the roof terrace was acceptable in planning terms.

33. Dissatisfied with this outcome, Mr X brought his complaint to the Ombudsman.
34. Soon afterwards the Council contacted Mr P and asked if he would voluntarily erect a privacy screen on the side of the roof deck facing Mr X’s bedroom.
35. Mr P has agreed to do so.

Analysis

The original planning application

36. We are not an appeal body and so do not take a second look at a planning decision to decide if it was right or wrong. Our role is to consider whether the Council acted with fault in reaching its decision. This means we look at how the Council makes a decision. If we find it followed the correct process, we cannot question the resulting decision however strongly people may disagree with it.
37. In reaching my decision, I have carefully considered the case officer’s report. I accept the report is brief, but it is adequate. I say this because 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.

38. With this context in mind, I have not found the Council to have acted with fault for the following reasons:

• The case officer’s report included a summary of the consultation responses that had been made by Mr X and another neighbour. She was therefore aware of the material planning conditions she had to consider, including loss of privacy and loss of light.
• It is up to the case officer’s professional judgement to decide the weight to be given to any material consideration in determining a planning application. It is not my role to come to a view about the degree of overlooking/privacy or decide whether it is significant.
• The case officer acknowledged the potential for overlooking but explained this could be mitigated by conditions. Conditions can only be included if the application would have been rejected if they were not imposed on the applicant. While it would have been helpful for this to be made clearer in the report, I cannot say this omission amounted to fault.
• Mr X also said Mr P’s development would reduce the value of his property. This is not a key material planning issue the Council has to consider, and the planning process is not intended to protect property values.
• As the Council has correctly said, there was no duty to carry out a site visit. For this reason, I cannot criticise the Council for not doing so, even though the development was partly built and there was ongoing enforcement action. Nor is there any obligation on case officers to personally know the local area. Again, for this reason, I cannot criticise the Council for outsourcing its planning function.
• The Council was not responsible for the accuracy of plans submitted with the application. It is only obliged to consider the application as it has been submitted.

39. I accept Mr X believe the Council reached a poor planning decision. But there is no evidence its decision was flawed by administrative fault. In these circumstances, the Ombudsman cannot criticise the merits of the decision itself.

Enforcement action

40. I appreciate Mr X’s frustration that Mr P repeatedly failed to comply with planning permission and time scales. But I can only investigate how the Council responded to his reports.
41. The case records show the Council responded promptly to all Mr X’s reports of breaches of planning consent. It carried out site visits and contacted Mr P to advise him of what action he needed to take to regularise the breaches. It also provided Mr X with updates about what action it had taken. This was the process we would expect to see.
42. The chronology above shows there was a long delay between the Council advising Mr P that he needed to submit another application to address the breach caused by the additional windows. I can see this will have caused Mr X considerable frustration. But this was not due to fault by the Council. In the first instance, Mr P submitted the wrong application and then Mr P’s agent was taken ill and had to be replaced. Once the correct application was submitted, the Councill dealt with it relatively quickly. While clearly unfortunate, I cannot hold the Council responsible for this delay.
43. Nor am I able to infer fault from the Council latterly trying to negotiate a compromise with Mr P. I do not interpret this as the Council attempting to correct the previous decision. Instead, I see it as the Council acting in good faith in an attempt to address the Mr X’s understandable privacy concerns.
44. For these reasons, I do not find the Council to have acted with fault.

Complaint handling

45. The Council has accepted it took too long to respond to Mr X’s stage one and stage two complaints.
46. Under the Council’s complaint handling policy, complainants can expect to wait 20 working days for a response at stage one and 15 working days at stage two.
47. In this case it took the Council two months (44 working days) to reply to his stage one complaint and over eight months to respond to his request for a review of this decision. The Council has explained the latter request was not logged upon receipt and was not picked up by its internal systems.
48. However, the Council did address all the issues raised in its second and final complaint response. Mr X has therefore received a full response to his complaint.
49. As there was no fault on the Council’s part in granting planning permission, I am satisfied, on this occasion, it is not proportionate for us to pursue this issue further.

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Final decision

50. I have not found Council to have acted with fault. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman