Summary: X complained about the Council’s decision to approve development on land near X’s home. We did not investigate this complaint further, as we were unlikely to find fault, recommend a remedy or achieve any other meaningful outcome.

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 an extension on a house near X’s home. X said the Council:
• did not follow the Council’s parking standards policy;
• allowed development that was in breach of a covenant;
• allowed development to close an important gap or view to the countryside;
• did not answer their questions about the development and its application of planning policy.

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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 fault has not caused 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 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.
5. 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

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:
• private rights to 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. 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.
11. Councils usually have local development plans, that set out their planning policies which show their usual approach to development proposals in their area.
12. Some councils also issue guidance on how they will usually apply planning policy. The guidance is found in supplementary planning documents and the policy and guidance can be found on council websites.
13. 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.
14. Covenants and easements set out private rights and obligations between landowners and are found within title deeds to land. They are not planning considerations and councils cannot give any weight to them when making their planning decisions.

What happened

15. X lives on an estate of houses. The neighbour behind X applied for planning permission to extend their home by building a room over a side garage and changing the shape of the roof.
16. X sent objections to the Council, which included concerns about:
• parking, as there would not be enough spaces for the number of bedrooms;
• overlooking and privacy;
• loss of outlook;
• development that would be in breach of a covenant restricting the landowners use of their land.
17. 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 X and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
18. In relation to X’s comments, the case officer said:
• because of the design and distance, the development did not cause a significant impact on neighbouring amenities;
• the loss of outlook caused by the development was not significant;
• because of on and offsite parking spaces, the proposal was acceptable; and
• the covenant was a private matter and not a planning consideration.
19. The Council approved the application subject to the conditions recommended by the case officer.

My findings

20. 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.
21. 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?
22. 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.
23. I should not investigate this complaint further, and my reasons are as follows;
• Before it made its decision, the Council took account of the plans, relevant policy, and the concerns of X and other consultees. This is the planning decision-making process we would expect, and so further investigation is unlikely to result in a finding of fault.
• X complained the Council did not apply and follow its policy before making its decision. Councils are not obliged to follow policy as if it creates a binding rule. Instead, they must consider relevant policy and decide whether and how to apply it. Generally, an application will raise a number of policy issues that go for or against approval. The role of the planning authority is to balance planning considerations and decide how to use its discretion.
• Even if I found some fault in process, it is unlikely that I would recommend a remedy for X. This is because I have no evidence to show the outcome of the decision would be different and the development does not cause a significant injustice.
• The Council’s policy relating to outlook and gaps between buildings does not give rise to a private right to a view. Policies like this are intended to protect the general public rather than the rights and interests of individuals. There is no private right to a view over another’s land.
• Covenants and easements are private land ownership rights found in deeds of title to land. The rights and obligations they include are private rights and not planning considerations. Councils cannot give any weight to private rights when making their planning decisions.

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Final decision

24. I ended my investigation because I was unlikely to find fault, recommend a remedy or achieve any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman