Summary: Mr X complained the Council failed to consider local residents when it approved plans for a new housing development. We found no fault in the Council’s decision-making.

The complaint

1. Mr X complained the Council failed to consider local residents when it approved plans for a new housing development.
2. Mr X considers his, and other resident’s, objections were ignored by the Council and planning committee. He said the Council did not consult with, update, or feedback to residents about the plans.
3. Mr X said the plans include high-rise apartments which will result in overlooking and loss of privacy for existing residents. He also said it will add to the parking issues that already exist.

Back to top

The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future 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)

Back to top

How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
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.

Back to top

What I found

Planning permission

9. Planning permission is required for the development of land (including its material change of use).

Outline planning applications and reserved matters

10. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’.
11. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
12. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.

Decision making and material considerations

13. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
14. 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.
15. 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.
16. Government statements of planning policy are material considerations.
17. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
18. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Site Visits

19. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.

The Council’s complaint procedure

20. Details of the Council’s complaint procedure can are on its website. Residents can make a complaint ‘about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents.’
21. The procedure lists the Council departments or services a resident can raise a complaint about. One of which is ‘planning applications’.

What happened

22. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
23. Mr X lives next to a site which was formerly an office building.
24. A housing developer (the developer) applied for outline planning permission to change the site to residential use and build a mixture of houses and apartments. The apartment blocks were planned to be several storeys tall.
25. Five residents objected to the plans, including Mr X. The objections included:
• Not enough off-road car parking, adversely impacting on-street parking.
• Adverse impact on air quality.
• Lack of local of amenities, including schools and medical facilities, to support the proposed development.
• Adverse impact on highway safety through inadequate access arrangements and increased traffic.
• Excessive height proposed for the apartments.
• Adverse impact on neighbouring residential amenity from loss of light, outlook and privacy, as well as increased noise.
• Adverse impact on existing trees and landscaping with not enough replacement planting proposed.
26. A sunlight and daylight assessment accompanied the application. It found the development would have limited impact, with only minor harm identified to two neighbouring properties.
27. A noise and vibration assessment also accompanied the application. It identified no harm to existing neighbours.
28. The application was supported by a tree survey and protection plan. This showed about half existing trees and hedgerows would be removed. New tree planting was proposed, with a two to one replacement ratio.
29. The Council’s tree officer had no objections. They recommended the line of leylandii trees should be removed, due to maintenance issues, and replaced with new tree and shrub planting.
30. The application also included a travel plan. The Council consulted the local highway authority. It confirmed, in its view, traffic at peak periods would be less.
31. The district parking services raised no concerns on highways access or parking.
32. The Council’s report to the planning committee states privacy to neighbours would be safeguarded by obscure glazed windows. It also states there would be enough separation distance.
33. The Council said its assessment concluded positively that the amount of development proposed can be accommodated. It said there were some points of reservation, such as relationship to trees and hedges and parking spaces, but these can be reconciled at the reserved matters stage. There was also some outstanding information on noise, trees, and highways matters. The Council said, subject to the outcome of those matters, it supported the proposals.
34. The planning committee granted outline planning permission for the development in July 2020.
35. The developer made a reserved matters application in April 2022.
36. The police commented on the plans. While they had no major concerns, they said communal parking areas for the apartment blocks must be within view of an active room within the property (such as the kitchen or living room).
37. This led the developer to move the position and orientation of some apartment blocks.
38. Mr X objected to the application in August 2022. He said the updated plans were unacceptable for the following reasons:
• The developer moved the apartments closer to residents to the north, and oriented them to face neighbouring houses, causing overlooking.
• The developer increased the height of the apartment blocks, with pitched roofs, cutting out light and causing overshadowing and loss of privacy to existing residents.
• The developer proposed to remove trees to the north and replace them with new ones, which will be no benefit in the short term.
• The developer’s plans had changed many times without input from residents.
39. The developer’s reserved matters application went before the planning committee in September 2022.
40. The Council’s report to the planning committee confirmed the changes to the developer’s plans (with apartment blocks now closer to the north eastern boundary) will not cause a noticeable impact to surrounding residential properties. Gardens of nearby properties will continue to see 2 hours sunlight, and this was considered complaint with Building Research Establishment guidelines.
41. A tree officer commented that some trees on the site could have a tree protection order. They suggested pruning other trees and did not express any objections.
42. The Council told the planning committee it was pleased with the amended site layout as it allowed for passage across the site. Officers considered the separation distance was enough not to require a change in design due to overlooking.
43. The planning committee decided to delegate authority for the final decision on the reserved matters to the Council’s head of planning and development, subject to satisfactory comments from environmental health on noise.
44. An environmental health officer confirmed the developer’s noise survey and mitigation proposals were acceptable. They welcomed the developer’s inclusion of an acoustic boundary fence.
45. The Council approved the reserved matters in November 2022.
46. Mr X complained to the Council in April 2022.
47. The Council acknowledged Mr X’s complaint. It said the new buildings will be 40 metres away from rear boundaries of existing properties, more than the 28-metre distance in the Council’s design guidance, and would therefore not result in unacceptable overlooking.
48. A planning officer told Mr X the developer increased the roof height to incorporate a pitched roof, for better design. They said the Council told residents and Mr X commented on this. An officer also visited Mr X’s home to view the site from his garden. The Council suggested to the developer it should keep the roof of one apartment block flat, but the developer preferred a pitched roof.
49. The officer also told Mr X the police commented on the location of the car park. The police said the car park should be visible from active rooms within the apartments. The developer therefore moved parking space to the south and moved the apartment block to the north.
50. Mr X asked why the apartments had to face north, when they could face east and not overlook existing residents. He said it is unacceptable there will be any overlooking and asked why the apartment blocks needed to be so high.
51. Mr X said the developer cut down a tree that was not dead or overgrown. He said it provided privacy screening and questioned why it was cut down.
52. Mr X criticised the Council for a lack of neighbourhood visits and for not discussing their objections at the planning committee meeting.
53. The planning officer sent a final response to Mr X on 11 May 2023. The officer said:
54. The planning committee granted permission for the development and was aware of Mr X’s concerns about overlooking. The officer said the committee decided the application having regard to all material considerations. One of which being the distance between the development and Mr X’s home exceeds 40 metres.
55. They acknowledged the development is higher than Mr X’s two storey home. They said this was acceptable as the development is next to a railway station and there are higher buildings already present.
56. The developer added a pitched roof (rather than the originally planned flat roof) for visual reasons. The Council considered the scheme was in accordance with its local plan and national policies. It addressed concerns about overlooking in the committee report. The officer also said the revised plans were to increase the amount of open space and provide a better layout for apartments and parking spaces.
57. The development is subject to conditions on tree protection and the Council will monitor this during construction.
58. The Council was not dealing with Mr X’s complaints through the complaint process as his concerns were about the fact the Council granted planning permission. The officer said the planning committee considered all material considerations and they could not see any fault in the decision. The officer said the only way Mr X could challenge the decision was by judicial review.

Analysis

59. Mr X wanted the height of the apartment blocks to be limited to two or three storeys. He also wants them to be moved to face east, or at an angle from existing residents.
60. The Ombudsman is not a planning appeal body. We cannot revoke or make changes to planning permission. Our role is to consider the Council’s decision-making process.
61. Mr X’s is unhappy with the Council’s level of engagement with residents. Given the number of changes the developer made to their plans, Mr X expected more site visits by the Council and more dialogue with existing residents.
62. Residents are not a party to the planning application, so we would not expect the same level of engagement with residents compared to the applicant. While the Council must take account of objections, it has no duty to engage with residents at each stage of the process or keep them updated. The Council is also under no duty to carry out site visits.
63. I found residents could comment on the developer’s plans, and on some of the changes made. I found Mr X submitted comments to the Council on a few occasions. The fact the developer made several changes to their plans shows the Council had a good level of communication with them about suitable design.
64. I found the Council considered objections from residents, including Mr X. This is mainly detailed in the Council’s report to the planning committee about the outline planning application. I also found evidence of this consideration in the Council’s report to the planning committee for the reserved matters application, and in the planning committee’s minutes of the meeting.
65. When considering planning applications, the Council is not under a duty to prevent any and all harm to neighbouring residents. Its duty is to prevent unacceptable harm.
66. Officers considered the impact on existing residents, in terms of overlooking, loss of privacy, and loss of light, was acceptable. While they did acknowledge there would be some impact and some harm, officers did not consider this was significant enough to refuse the application. While I appreciate Mr X disagrees, that decision is for planning officers, and the planning committee, to make. Officers considered the material planning issues, including comments from consultees and residents. I found officers followed the correct process. In those circumstances, I cannot question the merits of the decision the Council and the planning committee reached. The Ombudsman cannot substitute his view for that of planning officers.
67. When Mr X complained to the Council, it decided not to put his complaint through its formal complaint process. Instead, it referred his concerns to its planning department.
68. I found the Council’s complaint process suggests it can consider complaints about planning applications. It does not state you cannot complain about a planning decision. While I appreciate officers in the planning department were familiar with the issues, and the complaints process cannot change the decision, it can address any flaws in the process, or any injustice caused to the complainant.
69. In addition, when a planning officer sent their final response, they only told Mr X about his right to judicial review. They did not tell him he could complain to the Ombudsman.
70. I found this was poor practice by the Council but falls short of being fault. That is because the Council did consider the issues Mr X raised. Also, Mr X did bring his complaint to the Ombudsman, and I did not find he suffered any significant injustice from not having his complaint formally considered by the Council.

Back to top

Final decision

71. I completed my investigation. I did not find evidence of fault in the Council’s decision-making.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman