Summary: Ms 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. Ms X complained about the Council’s decision to approve a planning application to vary the layout and design of houses behind her home.
2. Ms 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 privacy.

Back to top

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)

Back to top

How I considered this complaint

5. I read the complaint and the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Ms X and the Council an opportunity to comment on a draft of this decision.

Back to top

What I found

Planning law and guidance

Considerations of applications

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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

12. Where planning permission is granted, developers sometimes find it necessary to make changes.
13. 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.
14. 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

15. 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

16. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
17. 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.
18. 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

19. Ms 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.
20. 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 Ms 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.
21. The application was approved by a senior officer using delegated powers.
22. Ms X was unhappy with the Council’s decision, because:
• the buildings are closer than was originally approved;
• her home is 16 metres to the nearest of the new houses, and normally accepted separation distances of 21 or 22 metres (or more with raised levels) have not been applied.
23. 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.
24. I checked the Council’s website, but did not find a supplementary planning document giving guidance on design and separation distances.
25. I looked at Ms X’s home on an ariel photo and compared it to the block/layout plan for the new development. Ms X’s house is offset at an angle and so will not have direct views towards the nearest of the new houses.

My findings

26. 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.
27. I am satisfied that before the Council made its decision, it took account of the main planning considerations, including the plans, differences in land levels, comments from neighbours, including Ms X, planning policy and guidance.
28. Because the Council followed the decision making process we expect, I find no fault in its decision to approve the application.
29. 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.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman