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

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to approve a planning application on land next to their home. X said the Council failed to notify them before it made its decision.
3. X said if the Council had consulted them, they would have objected because the new development will be overbearing, and it will affect a private right of way and a tree on X’s land.
4. The Council is a new unitary authority. The planning decision was made by one of the local councils whose roles and functions have been replaced by the unitary authority.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I read the complaint and discussed it with X. 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.
8. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. Regulations set out the minimum requirements for how councils publicise planning applications.
14. 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.
15. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.

What happened

16. X’s neighbour applied for planning permission to build an extension to their house. X said they did not get an opportunity to comment on the proposal, but they are concerned about the impact the development will have on:
• their amenities; and
• a tree and a right of way on their land.
17. X also said the application was misleading, because it said there were no trees within falling distance of the development, and this was not true.
18. The planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including trees and hedges on the boundary, the impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
19. The Council approved the application subject to the recommended conditions.
20. I asked the Council to provide me with evidence to show how it publicised the application. The Council said there was no site notice, but neighbour notification letters were sent to adjoining neighbours. It sent me a screenshot from its document management screen which showed dates when neighbour notification letters were printed.

My findings

21. 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.
22. X said they were not consulted about the application, and would have objected because it will be overbearing, and will affect a tree and a right of way on X’s land. They say they nor any of their neighbours received neighbour letters.
23. We would not be able to show whether a neighbour notification letter was actually posted or received. The nearest we can get to proving this, is evidence a letter was produced. The Council provided a computer record to show it produced a letter, and because of this I find no fault in the way it publicised the application.
24. X would like the Council to review its decision. There is no evidence to show the outcome would have been any different. This is because before it made its decision, the Council considered the plans and took account of the main planning considerations, including the impact the development would have on neighbouring properties. This is the decision-making process we would expect.
25. We do not investigate the actions of planning applicants, but I can see the Council was aware of trees on site and their locations. The case officer’s report does refer to mature trees on the site and boundary but as I understand it, none of the trees, including the tree on X’s land, are protected by a Tree Preservation Order, a Conservation Order or planning condition. Whether further protection measures for trees on or near development sites is necessary is a matter for the Council to decide at its discretion.
26. I should also add that the impact on a private right of way is not a planning consideration. If during development work the neighbour damages X’s property, including any trees on X’s land, this would be a private matter between landowners and not for the Council to resolve.

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Final decision

27. I completed my investigation because there was no fault in the way the Council made its planning decision.

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Investigator's decision on behalf of the Ombudsman