Summary: Mrs X complained about the Council’s decision to approve a retrospective planning application. There was no fault in the way the Council made its planning decision.

The complaint

1. Mrs X complained about the Council’s decision to approve a retrospective planning application for a new house on land next to her home.
2. Mrs X said the new house is overbearing, overshadows her garden and significantly reduces light inside her home.

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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. 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

5. I read the complaint and invited Mrs X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I also read planning committee minutes and watched a recording of the planning committee meeting.
6. 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

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. 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.
12. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed.
13. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
14. However, 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.

What happened

15. The Council had approved a planning application from Mrs X’s neighbour to extend their home. During construction work the building was demolished, and work began on a new building. The Council visited the site and decided there was a breach of planning control, because the work was no longer for an extension, but an entirely new building. The Council decided not to take formal enforcement action, because the new building was very close in size and design to what would have resulted if the original house had been extended in accordance with approved plans.
16. The Council invited the developer to submit a retrospective application. The developer continued building work and submitted a retrospection application, as requested.
17. An application was received and scheduled to be decided by the planning committee. A planning case officer visited the site and wrote a report setting out the main planning considerations and their advice to the planning committee.
18. The case officer report included:
• a description of the proposal and site;
• a summary of relevant planning history, including the earlier permission to extend the original house;
• the differences between the retrospective plans and the approved proposal to extend the original house;
• comments from neighbours and other consultees;
• details of relevant planning policy and guidance;
• an appraisal of the main planning considerations, including design matters, the impact on neighbouring and occupier’s amenity, outdoor amenity space, and parking and access arrangements; and
• the officer’s recommendation to approve the application, subject to planning conditions.
19. The case officer’s report went into detail on how the development would affect Mrs X. The case officer took the view that, while the impact was significant, it was acceptable, and a refusal was not justified.
20. At the planning meeting, the committee was addressed by a planning officer and Mrs X. The committee members were given an opportunity to comment and ask questions.
21. One member expressed concerns about the impact on Mrs X and suggested that the original application for permission for an extension might have been refused if it had come before the planning committee.
22. Another member pointed out that the original application was part of the planning history of the site, and the committee should focus on the differences between the original plans and these retrospective plans for demolition and new build.
23. The Council’s committee considered the application and voted to approve it subject to recommended conditions. One of the conditions required windows facing towards Mrs X’s home to be obscurely glazed.
24. Mrs X sent comments on an earlier draft of this decision. She said:
• the garage was measured by an independent surveyor, who found it to be 37cm wider than indicated to the committee;
• she now has a brick wall facing her, higher than a wall that was previously approved;
• her health has deteriorated, and she now has damp problems caused by her neighbour’s new building.

My findings

25. 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.
26. Before a planning decision was made, the Council’s planning committee considered the case officer report, the plans, comments from Mrs X, a planning officer, and others. The case officer’s report set out the main planning considerations, including relevant planning law, policy and guidance.
27. The Council has followed the decision-making process we expect and so I find no fault. I realise Mrs X is very disappointed with the outcome of the retrospective planning application but without evidence of fault in process we cannot comment on the judgements of officers and members.
28. In response to Mrs X’s comments on my draft decision, my views are as follows:
• The case officer report shows the garage was not of great concern to the planning officers. The report says it is lower than the original garage. It is single storey and has a flat roof. If it is built wider/longer than was approved in the retrospective plans, this would be a matter for the Council’s enforcement staff to consider. In any event, we would not be able to say this difference would have changed the outcome. The evidence shows the Council understood what it was being asked to consider before it decided to approve the retrospective application. The same reasoning applies to the wall Mrs X complained about.
• We do not expect planning authorities to provide remedies for injuries to health or problems caused by neighbouring buildings. The Council’s role is simply to consider whether developments and uses of land are acceptable in planning terms. By granting permission, councils do not become liable for the responsibilities of private individuals. If landowners cause damage to each other’s land or, through deliberate or negligent acts, personal injuries, these matters can only be resolved by private legal action in the courts.

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Final decision

29. I have completed my investigation as there was no fault in the way the Council made its planning decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman