Summary: We will not investigate this complaint about the Council’s decision to grant planning permission for a development behind the complainant’s home, or its decision that the development commenced before the planning permission expired. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to have contacted us sooner, and there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council failed to follow its own guidance about separation distances when granting planning permission for a residential development which impacts on his privacy and residential amenity. Mr X also questions the Council’s decision that the development commenced within the planning permission’s 3-year time limit.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Ombudsman can investigate 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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)
5. And 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 considered:
• information provided by Mr X and the Council, which included their complaint correspondence.
• information about the planning application on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

7. The 12-month time restriction detailed in paragraph 5 above appears to apply to the part of Mr X’s complaint about the Council’s decision to grant planning permission for the development. This is because permission was granted in July 2018, yet Mr X did not contact the Ombudsman until May 2023. I see no good reasons why we should exercise discretion to consider this late complaint now.
8. And even if this time restriction did not apply, there is insufficient evidence of fault in the way the Council determined the application to warrant the Ombudsman pursuing the matter further.
9. This is because decisions on planning applications are made in accordance with the council’s development plan, unless material considerations indicate otherwise. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities), and it is for the decision-maker to decide the weight to be given to any material consideration in determining a planning application.
10. Here, the officer’s report demonstrates the Council had regard to the relevant material planning considerations, including the non-compliance with its guidance on separation distances, and it explains why the development was still considered to be acceptable. Whilst I appreciate Mr X disagrees with the Council’s decision, we cannot question this if there is insufficient evidence of fault in the way it was made. I have seen no evidence that fault affected the decision-making process.
11. Mr X also questions whether works undertaken on the site amounted to a material operation sufficient to implement the planning permission before its expiry date.
12. Section 56(2) of the Town and Country Planning Act 1990 says a development development shall be taken to have begun when a material operation comprised in the development begins to be carried out. Section 56(4) goes on to explain a material operation means (in summary):
• any work of construction in the course of the erection of a building;
• any work of demolition of a building
• the digging of a trench to contain the foundations of a building
• the laying of any underground main or pipe to the foundations of a building or to any such trench as mentioned above
• any operation in the course of laying out or constructing a road
• any change in the use of any land
• a material change in the use of the land.
13. In practice, very minor works are usually sufficient to commence development. This could be as simple as putting in footings or even just pegging out a roadway.
14. In correspondence with Mr X, the Council said it had received notification that a drain had been installed on the site, therefore it was considered that work had begun to be carried out to install pipe work, along with wider work to clear the site and prepare it for development. In the absence of sufficient evidence to the contrary, it had therefore taken the position that the development commenced lawfully within the required timeframe. This is a professional judgement the Council was entitled to make, and I find there is insufficient evidence of procedural fault that would allow me to question that judgement.

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Final decision

15. We will not investigate Mr X’s complaint because it is reasonable to expect him to have contacted us sooner, and there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman