Summary: Mrs X complained about the Council’s decision to approve a variation to a planning approval for development on land near her home. There was no fault in the way the Council made its decision.

The complaint

1. Mrs X complained about the Council’s decision to approve a planning application to vary the layout and design of houses behind her home.
2. Mrs X said that, because of the changes, new houses behind her home are closer and larger than shown on the original approval, and this will affect her outlook and privacy.

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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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, the decision to approve the application, and the case officer’s report. These documents, along with others, are available to view on the Council’s planning website.
7. I gave Mrs 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

Publicity of applications

8. Regulations set out the minimum requirements for how councils publicise planning applications.
9. 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.
10. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
11. 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.

Application types

12. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If the outline application is granted, remaining planning issues can be submitted and approved in a ‘reserved matters’ application.
13. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed.

Considerations of applications

14. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
15. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
16. 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.
17. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
18. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make, that are restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.

Variation of applications and approvals

19. Where planning permission is granted, developers sometimes find it necessary to make changes.
20. If the council decides the changes are ‘material’, it may require that the decision making process begins again with a fresh application, consultation and evaluation of the development.
21. 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.

Government guidance

22. The government can also issue planning guidance, and does so in a variety of ways, including:
• National Planning Policy Framework;
• Planning Practice Guidance;
• Planning Circulars; and
• other advice documents, including letters to chief planning officers.

Separation distances

23. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
24. 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.
25. However, it is important to remember that planning guidance and policy should not be treated as if it creates binding rules that must be followed. Councils must take account of policy and guidance, along with other material planning considerations.

What happened

26. Mrs X lives in a bungalow. The land behind her home was subject to an application to demolish an existing building and replace it with new houses. The Council approved the application.
27. The developer applied to alter the design and layout of the new houses. The case officer considered the application and wrote a report which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours, including Mrs X;
• comments from other consultees;
• details of relevant planning policy and guidance;
• an appraisal of the main planning considerations, including the principle of development, the impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
28. The application was approved by a senior officer using delegated powers.
29. Mrs X was unhappy with the Council’s decision, because:
• She did not receive a notification letter from the Council, though she did object after learning about the application from the developer.
• She later learned the site notice was placed near the entrance to the site, which was not near her home.
• The buildings are closer than was originally approved and closer than is normally considered acceptable. Mrs X’s home is 20 metres to the nearest house and other neighbours are even closer.
• The differences in levels, the close distance, the floor to ceiling windows in the new houses, and the low boundary wall/fence, affected her outlook and privacy.
• The planning case officer referred to suggested separation distances of between 15 to 20 metres in the governments National Model Design Code. However, Mrs X said she was told in a letter from the Department of Levelling Up, Housing and Communities, that the design code was meant to advise authorities on their production of design guidance and policies, not on how it should make its planning decisions.
30. I asked the Council to provide me with records from its document management system to show whether it had produced a notification letter for Mrs X and where it placed its site notice.
31. The Council provided me with a screenshot which showed a letter was produced, and a photo of the site notice outside the entrance to the site.
32. I read the case officer’s report and saw that the case officer took account of the National Model Design Guidance along with other factors, including the difference in levels and the height of the fence, before making a recommendation to approve the application. The Council also took account of its local plan policy on design matters.
33. I checked the Council’s website, but did not find a supplementary planning document giving guidance on design and separation distances.
34. Mrs X sent photos and wrote a detailed response to an earlier draft of this decision. The main points she raised, which I summarise as follows:
• There was no consultation before the Council made its decision to discharge planning conditions.
• The development that was originally approved three years ago was acceptable, but the variation of the plans the Council approved, was not acceptable because the changes they impact on her privacy is too close.
• Normally accepted separation distances of 21 metres were not applied, and it was wrong for the Council to take account of lower separation distances in the governments National Model Design Code.
• Because of the close proximity and the floor to ceiling window design in the new houses, her privacy is much reduced.
• Changes of material were inappropriate.
• The Council should have required a higher fence, and it took months before the builders provided a fence, but this was much lower than originally expected.
• A senior officer visited the site but did not consider our privacy was compromised.
• The design of the new properties does not fit with the local character of the area.
• The Council did not answer her queries and complaints satisfactorily.

My findings

35. 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.
36. I am satisfied that before the Council made its decision, it:
• publicised the application in accordance with its policy and the law;
• took account of the main planning considerations, including the plans, differences in land levels, comments from neighbours, including Mrs X, planning policy and guidance.
37. Because the Council followed the decision making process we expect, I find no fault in its decision to approve the application.
38. The Council did take account of the government’s National Model Design Code, which provides guidance for local authorities on plan and policy making. It was not fault for the case officer to mention this guidance in their report. The Council does not have its own supplementary planning document or design code, and may take account of the government’s view of what a reasonable separation distance might be.
39. I have carefully considered Mrs X’s complaint and her comments on my draft decision. The new buildings are close to her home, and I do understand why Mrs X is disappointed in the change in her environment. However, the evidence shows that the Council was fully aware of what it was approving. It took account of the key issues in the application to vary the plans – it had scaled plans showing the design of the buildings, their location and relationship to existing dwellings. Mrs X strongly disagrees with the Council’s decision, but I can see a planning judgment has been made and I cannot act as an appeal body to judgements that are made by a planning authority, or criticise the Council unless I find fault in the decision making process.
40. In her response to my draft decision, Mrs X referred to older planning decisions, but I decided to keep my focus on the Council’s more recent decision to vary the original approval. This planning decision has superseded earlier approvals.
41. Mrs X referred to decisions to discharge planning conditions, saying there had been no further public consultation on these issues. I decided not to investigate this further, because the discharge of planning conditions under previously approved planning applications is generally delegated to officers decide without restarting public consultation processes.
42. Mrs X also complained about how the Council dealt with her complaints and enquiries.
43. We do not generally investigate complaints about complaints procedures. There are several reasons for this, but the main reasons are as follows.
44. Our focus is usually on the issues and decisions that caused the original complaint. We are a stage beyond the Council’s own complaints processes and can remedy any injustice it has failed to address when it has had the chance to do so.
45. We do sometimes investigate complaints procedures, for example, if we think it is likely there are significant or systemic complaints process failures.
46. I have checked our complaints database, but found no evidence of systemic failure in the Council’s complaints procedure.

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Final decision

47. I completed my investigation as I found no fault in the way the Council made its planning decision.

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Investigator's decision on behalf of the Ombudsman