Summary: X complained about the Council’s decision to approve a planning application for development on land behind X’s home. X also complained about the lack of planning enforcement relating to planning conditions. There was no fault in the way the planning application was decided. We did not investigate alleged failures relating to planning enforcement, because the planning enforcement investigation is ongoing.

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 for a large building on the land behind X’s home.
3. X said the building is too close and high, blocks light and reduces privacy.
4. X also reported problems once building began, because:
• construction noise disturbed their amenity; and
• it seemed the structure was not built in accordance with plans.
5. X would like the Council to rectify the problems caused by the new building and to pay them compensation for the impact the development has on the value of their home.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. We may not investigate a complaint or any part of a complaint, if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot show any alleged fault has caused injustice to the person who complained, 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

9. I read the complaint and discussed it with X and a planning enforcement officer. 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.
10. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. 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.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
15. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
16. While construction management conditions may help lessen the impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
17. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.
18. 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.
19. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
20. However, planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
21. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

22. The Council received a planning application for a proposal to demolish buildings and replace them on land behind X’s home.
23. 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 and other consultees;
• planning policy and guidance considered relevant, including SPD guidance, the Birmingham design guide;
• an appraisal of the main planning considerations, including the principle of development, design and layout, the impact on the area, the impact on residential amenity, trees and ecology issues and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
24. The case officer noted that the development was closer than distances recommended in its SPD design guide, but the relationships were similar to those that existed between the original buildings and nearby houses.
25. The application was considered by the Council’s planning committee, which granted planning permission subject to recommended conditions.
26. One of the conditions included a requirement to build in accordance with approved plans, and another requiring details of a construction management plan to be approved and followed during construction.
27. X complained to the Council about its decision and the impact the development will have on their home. X also complained the building does not accord with plans, and that the Council did not protect them from construction noise.
28. I asked a planning enforcement officer to provide me with an update on compliance with planning conditions on the site. The officer told me:
• there is an ongoing enforcement investigation, which is focused on whether the building accords with approved plans;
• X had written to the Council last September to say they would report noise issues to the Council’s Environmental Protection Officers and the Health and Safety Executive; and
• the construction management plan did not cover construction noise – this would be a matter for colleagues in Environmental Protection.

My findings

29. 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.
30. I find no fault in the way the Council made its decision on the planning application. My reasons are as follows:
• Before it made its planning decision, the Council considered the application plans, its policy and design guide, along with objections from the public. It realised the recommended distances in its SPD design guide were not met, and then explained why this was acceptable in the circumstances. In assessing the application, the Council followed the decision-making process we would expect. There was no fault in how it made its decision on the application, and it is not for the Ombudsman to comment on whether the judgement it has made is correct.
• The Council did not require noise level protections in the construction management plan. The scope of planning control through the use of conditions is up to the Council to decide. This was a matter for its discretion.
31. I decided not to further investigate X’s complaints about breaches of planning control, because the enforcement investigation is ongoing. If X is unhappy with the outcome of the enforcement action, and believes there was fault in the enforcement process, they may complain to the Council and then to the Ombudsman.

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Final decision

32. I completed my investigation because there was no fault in the way the Council made its decision to approve the application. I decided not to investigate other allegations relating to failure to enforce planning controls, because an enforcement investigation is ongoing.

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Investigator's decision on behalf of the Ombudsman