Summary: X complained about how the Council handled a planning application for development on land near X’s home. We did not investigate further, because we were unlikely to find X was caused a significant injustice or show the outcome of the Council’s planning decision would have been different.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about how the Council handled a planning application for development on land near X’s home.

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The Ombudsman’s role and powers

3. We 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused significant injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I read the complaint and invited 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 took account of our guidance on planning remedies, which can be found here.
5. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of the comments I received.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. 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.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
11. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
12. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
13. Although SPD can set different limits, typically councils 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). Where the angle between the buildings is offset, the separation distance may be even closer. An ‘elevation’ is the face or view of it from one side shown in a plan.

What happened

14. The Council received an application to develop land near X’s home. The side of X’s home is about 50 metres from the corner of the nearest building on the proposed development, and their rear elevation does not face towards it. X’s home is 2 storeys with a pitched roof and the nearest proposed building is 3 storeys with a flat roof.
15. The decision was made by a planning committee. Before the committee met, 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 neighbours covering a wide range of issues, including the impact on amenity, the consultation process, nature conservation, construction noise and demolition waste, refuse collections, impact on on-street parking, transport links and highway safety;
• comments from other consultees, including transport development management, crime prevention, environmental protection, and tree protection;
• details of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the principle of development, ecology, contaminated land, impact on trees, the quality of the design, impact on residential amenity, construction management issues, refuse collection, transport management, parking and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
16. The Council’s planning committee approved the application subject to planning conditions.
17. X complained about the Council’s decision, and raised a large number of issues, including:
• concerns about consultation;
• alleged errors in the case officer’s report;
• committee members were misled;
• inaccurate plans;
• inaccurate parking survey;
• misleading information about bus routes;
• overlooking of most affected properties was not addressed;
• inadequate information about overshadowing and light loss;
• concerns about crime not considered;
• concerns about noise;
• the case officer did not answer a councillor’s question or correct mistakes;
• a member of the public was prevented from speaking;
• not all relevant information was included in the committee pack.
18. The Council responded to the complaint and addressed X’s main concerns. The Council explained its reasons for not upholding most of the complaints. The Council explained that the key issues had been covered during the planning process. The Council accepted there were some inaccuracies in the case officer’s report, but it did not agree this made any difference to the outcome. The Council also accepted that due to an administrative error, another individual was not invited to speak at the meeting before a decision was made.

My findings

19. 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.
20. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
21. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
22. I should not investigate this complaint further, and my reasons are as follows:
• I am not persuaded X is caused a significant injustice by the Council’s decision to approve the planning application. Our remedies focus on the impact development has on an individual’s amenities, and I consider it unlikely that any potential fault would result in a recommendation for a remedy. Without some significant injustice I can remedy, I should not investigate further.
• The courts have warned that review bodies should not adopt a hypercritical approach to planning decisions. We should not pick over decisions merely with the aim of finding fault. Our role is to check that there are no significant errors that made a meaningful difference. The Council has accepted some minor faults, but I cannot say that they are likely to have made a significant difference to its decision. It is quite clear that the committee considered the main issues, and if it needed more information or time to reflect, it could have deferred its decision. X raises a large number of complaints, but none of them are likely to result in a finding that the outcome would have been different.

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Final decision

23. I decided to not investigate this complaint further, because it was unlikely to result in a different outcome or remedy for X.

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Investigator's decision on behalf of the Ombudsman