Summary: Mr X said the Council did not properly consider the impact of development on his home before granting planning permission. We found no fault in how the Council reached its planning decision. However, there was avoidable delay in the Council’s response to Mr X’s noise reports and its complaints handling. In addition to the apologies already given, the Council agreed to make a symbolic payment of £400 to Mr X in recognition of the frustration and avoidable time and trouble he was caused by its delays.

The complaint

1. Mr X said the Council did not properly assess the impact of proposed development on his home. The Council also failed to deal with his reports of unsocial working hours while the development was built. The Council then repeatedly missed its own deadlines for replying to his complaint and failed to respond to his telephone calls.
2. Mr X said, during construction, the works were intrusive and the unsocial working hours affected his family’s sleep. Now built, the development was overbearing and significantly reduced light and privacy to his home. Mr X said he felt completely let down by the Council’s poor communication and complaint handling.
3. Mr X wanted proof the Council followed planning rules in granting the development planning permission. Mr X also sought compensation for loss of value to his home and to change its layout and windows to restore some privacy and light.

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The Ombudsman’s role and powers

4. 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)
5. Where we find fault, we must also consider whether that fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 have:

• considered Mr X’s written complaint and supporting papers;
• considered information about the development available on the Council’s website;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

8. Most development needs planning permission from the local council. Councils must consider each planning application on its own merits. They must also decide applications in line with relevant policies in their development plans unless material planning considerations indicate they should not. Material considerations concern the use and development of land in the public interest but not private matters. Examples of material considerations are traffic generation and overlooking. The developer’s behaviour, the view from peoples’ homes and potential changes to house prices are not material planning considerations.
9. Councils must publicise planning applications so people have an opportunity to comment on development proposals. Peoples’ comments on proposals that concern land use and planning matters will be material considerations, which councils must take into account when deciding the application.
10. A planning case officer may, but does not have to, visit the development site when considering a planning application. The case officer may also write a report assessing the proposed development against relevant policies and other material planning considerations. The report usually ends with a recommendation to approve or refuse the application. The courts have made 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.

11. Planning policies may pull in different directions, for example, promoting new housing and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application. A senior council officer will decide most of their council’s planning applications.
12. Councils may impose planning conditions to make development acceptable in planning terms. The Government’s National Planning Policy Framework (NPPF) says councils should keep conditions to a minimum. And councils should only impose conditions where they are necessary, relevant to both planning and the development, precise, enforceable, and otherwise reasonable (‘the six tests’). The Government’s Planning Practice Guidance (PPG) reflects the NPPF and refers to the “rigorous application of the six tests”. The PPG also says it is “good practice” to keep conditions to a minimum wherever possible.

The Council’s complaints procedure

13. The Council has a Corporate Complaints Policy (‘the Policy’) that says it aims to respond to most complaints within 20 working days. However, if a complaint is complex, the Council will contact the complainant about extending the response time target. The Policy says the Council will close a complaint once it issues its response. But, in limited circumstances, for example, if a complainant shows it has misunderstood the complaint, the Council will review it. The Policy recognises complainants may come to the Ombudsman if dissatisfied with the Council’s response to their complaint.

What happened

14. The Council granted planning permission for a substantive house extension. That planning permission remained valid but not implemented when Mr X moved into a nearby property. Mr X said he was unaware of the planning permission when he moved home.
15. The Council then received a second planning application to extend the house near Mr X’s home. The Council publicised the application and Mr X objected to it. The Council also successfully asked the developer to change the application proposals. A Council planning case officer visited the site and Mr X’s home. The case officer then prepared a report (‘the Report’) assessing the amended proposals (‘the Development’) against relevant planning policies, including Policy 9 (Local Environment) (‘Policy 9’). Policy 9 aimed to protect and improve local environmental quality and amenity. Policy 9 said development should not cause ‘significant harm to neighbouring amenities’ through impacts including privacy and access to daylight. The Report also took account of comments, including Mr X’s objections. The Council found the Development acceptable in planning terms and granted conditional planning permission. (The Council said there were no substantive differences between the proposed extensions approved by the two planning permissions.)
16. Work started and Mr X contacted the Council expressing concern about the grant of planning permission. Mr X said the building works were “VERY” close to his home and already significantly affecting his light, privacy and outlook. The Council replied saying, in summary most development had an impact. It had to decide when the impact was sufficiently significant to justify the refusal of planning permission. Here, it had successfully sought changes to the application to reduce the impact of the proposals before granting planning permission. The Council recognised Mr X disagreed with its planning decision. However, it had assessed the Development against relevant planning policies and taken account of representations, including those from Mr X. It had found insufficient harm to justify refusing planning permission.
17. Mr X again contacted the Council, further explaining how the building works impacted his home. The Council said it would consider Mr X’s concerns under the Policy. The Council also said a planning enforcement officer would visit the site to check the works complied with the planning permission.
18. Over the next 12 weeks, Mr X chased the Council for a response to his complaint and commented further on the impact of the building works on his home. The Council responded with apologies for its delay. Mr X then told the Council, when he first made contact, foundations were being laid but the extension was now almost complete. Mr X said he had been patient but the delay was unacceptable. Mr X also said there was no way to call anyone at the Council and the builders had consistently carried out noisy works at unsocial hours. Mr X said he had not bothered lodging a noise complaint as he felt nobody listened. (Mr X did report construction noise to the Council’s environmental health team that day). Mr X gave the Council a deadline for its complaint response. The Council again apologised.
19. The day before Mr X’s deadline, the Council gave a further apology as it was not yet ready to reply to his complaint. The Council said it would reply the following week.
20. Two weeks later, Mr X contacted the Council saying it had missed another deadline and its delay was frustrating. About a week later and 17 weeks after accepting Mr X’s concerns as a complaint, the Council replied. It repeated its initial response to Mr X’s concerns (see paragraph 16). It also said the planning application was processed correctly and so it did not uphold his complaint. However, the built extension did not comply with approved plans. The developer had now applied for planning permission for the extension as built. (The Council later refused planning permission for the built extension, which it says is significantly larger than approved and closer to Mr X’s home.)
21. Mr X told the Council he was disappointed. He had been led down a rabbit hole as, after months of waiting for a complaint response, he simply got another letter from the planning department. Mr X said the Council had not addressed his concerns about the impact of the Development on his home. And the developer seemed free to build what he wanted.
22. The Council said it would review Mr X’s complaint under the Policy within 20 working days.
23. A month later, a Council environmental health officer telephoned Mr X about his noise reports and left a message. Mr X said he returned the call and received an apology and was told the delay in responding to his noise reports was due to staff vacancies, which the Council was trying to fill.
24. After a further month, the Council sent its complaint review response to Mr X. The Council said it was satisfied its earlier responses had explained its position and it had assessed the application correctly. The Council referred to the apology from its environmental health team for overlooking Mr X’s noise nuisance reports. The Council also apologised for the delays in its complaint handling and the frustration caused to Mr X. It explained there had been staffing issues affecting its ability to respond to complaints. It had recruited new staff and intended to review the Policy and provide staff training on complaint handling.

The Council’s response to the Ombudsman

25. The Council said it had considered the impact of the Development on Mr X’s home. Policy 9 did not include separation distances or other rules about the impact of development on light to peoples’ home. Its officers visited application sites and used their professional judgment in each case to decide if a development would have an unacceptable impact. Here, the officer had taken photographs during the site visit. And the earlier planning permission was a material planning consideration. The Report expressly had referred to the distance between the Development and Mr X’s home. The officer found light to Mr X’s home would be adequate and the Development would not result in an unacceptable degree of enclosure.
26. The Council referred to the NPPF about keeping planning conditions to a minimum. It said it rarely imposed conditions limiting working hours on planning permissions for house extensions. While building an extension caused some noise and disturbance it was usually for a short time making a working hours condition unnecessary and unreasonable. But, its environmental health team would normally investigate any noise reports linked to house extension works.
27. Its website provided guidance about noisy construction work and indicated it should not take place on Sundays and Bank Holidays or after 1pm on Saturdays. However, working outside the guide hours was not automatically illegal. When it received complaints, an officer should contact the developer and remind them of the Council’s guidance on noisy works. If complaints continued, it would look to gather evidence and consider formal action to limit noisy working. Its failure to follow up Mr X’s reports was an isolated incident. It had now recruited staff, which should help prevent any future oversights.
28. The Council recognised its complaint response to Mr X was delayed. It said this was partly caused by its planning enforcement investigation into the extension, which did not comply with the approved plans. This led to the developer applying for planning permission for the as built extension and it had told Mr X about that application. Its first response to Mr X had communicated its position on his concerns about the grant of planning permission (see paragraph 16). The Council also accepted there was “a short delay” in reviewing Mr X’s complaint. The review had to consider Mr X’s concerns about his noise reports and complaint handling as well as the grant of planning permission. Its complaints team was now fully staffed. There remained some delays in responding to written complaints. However, its service review had identified where it could change its procedures, which would hopefully ensure it provided timely complaint responses in the future. It aimed to approve a new complaints policy and provide staff training before the end of 2024.

Consideration

Introduction

29. We are not an appeal body. Our role is to consider whether there is evidence of fault in how the Council reaches its planning decisions. Without evidence of fault, we cannot question the Council’s decision however strongly a complainant may disagree with it. Here, Mr X’s complaint concerned the Council’s decision to grant planning permission for the Development, which was near his home. And, during the complaint procedure, Mr X also raised concerns about noisy construction work and the Council’s complaint handling. Mr X’s complaint to the Ombudsman did not concern the Council’s planning enforcement investigation into the as built extension. So, the focus of my investigation was the decision to grant the Development planning permission and Mr X’s linked concerns about construction noise and complaint handling.

Impact of the Development on Mr X’s home

30. Mr X said the Council did not properly assess the impact of the Development on his home. The Development was overbearing and significantly reduced light and privacy to his home. Mr X referred us to the ’25 degree’ and ’45 degree’ rules for assessing light.
31. The evidence showed the Council acted correctly in publicising the planning application. A Council planning case officer also visited the site and went to Mr X’s home. The case officer therefore put themselves in a position to envisage the Development from Mr X’s home. The case officer also took photographs from Mr X’s home looking toward the nearby application site.
32. The Report provided evidence the Council acted correctly in taking account of Mr X’s objections in deciding the application. The Report also provided evidence the Council considered the impact of the development on nearby properties, including Mr X’s home. In assessing the proposals, the Report referred to Policy 9 and set out the separation distance between the Development and Mr X’s home.
33. I recognised Mr X strongly disagreed with the Council’s assessment of the impact of the Development. However, given the Report showed the Council correctly directed itself to Policy 9 and Mr X’s home as a nearby property, I could not find it acted with fault. Having assessed the Development against Policy 9, the Council could reach its own view on whether its impact was unacceptable. Unfortunately for Mr X, it did not. However, without evidence of fault in how the Council processed the application, I could not question the merits of its assessment and resulting planning decision (see paragraph 4).
34. In reaching my view, I considered Mr X’s references to the 25 degree and the 45-degree rules. Some councils use these rules to assess how development will affect light to existing buildings. However, councils do not have to use either rule. And the Council’s planning policies do not include or refer to either of the rules. I could not therefore find the Council at fault for not assessing the Development against those rules. What the Council needed to do, and did, was assess the Development against the relevant planning policies it had adopted. Here, in assessing the impact of the Development on neighbouring amenities, the key policy was Policy 9. I therefore found no evidence of fault in how the Council reached its decision to grant the Development planning permission.

Construction of the development

35. Mr X referred to contacting the Council about the Development during its construction. The Council’s records showed it received noise reports from Mr X one weekend, which its officers overlooked. The Council only contacted Mr X after he responded to its delayed response to his complaint, which was more than two months after Mr X reported noisy construction work. I recognised the Council said it was short staffed. However, the evidence showed avoidable delay in the Council’s failure to contact Mr X promptly on receipt of his weekend construction noise reports. This was fault.
36. Given the delay Mr X was already experiencing in getting a response to his complaint, the failure to quickly follow up his noise reports would likely have increased his frustration. I therefore found the fault identified at paragraph 35 caused Mr X injustice. However, Mr X’s written correspondence with the Council at the time he reported construction noise, indicated the development was almost complete (see paragraph 18). In the circumstances, it was unlikely that further substantive construction noise occurred in the two months between Mr X’s noise reports and the Council making contact. I therefore found the Council’s failure to make a timely response caused no greater injustice to Mr X.

Complaint handling

37. The Council recognised its complaint responses were delayed. It referred to staff vacancies and said it was considering planning enforcement matters. Mr X’s complaint was about the grant of planning permission. That was the complaint the Council needed to address and, under the Policy, respond to within 20 working days. If the Council linked the complaint with its enforcement investigation, it should have made this clear to Mr X and, in line with the Policy, agreed with him a longer time in which to respond. I saw no evidence it did so. Indeed, the evidence showed Mr X being put to avoidable time and trouble in repeatedly chasing the Council for its response. I therefore found avoidable delay by the Council caused Mr X injustice.

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Agreed action

38. I found fault causing injustice (see paragraphs 35 to 37). I did not find the apologies already given by the Council adequately addressed the injustice caused to Mr X. So, to reasonably and proportionately address the injustice, the Council agreed (within 20 working days of this statement) to also make a symbolic payment of £400 to Mr X. The payment was to recognise the frustration and avoidable time and trouble Mr X was put to by the Council’s delayed communication and complaints handling. The payment comprised £200 in respect of the injustice arising from the failure to respond to Mr X’s noise reports. And £200 for injustice arising from fault in the Council’s complaints handling.
39. The Council agreed to provide us with evidence of its compliance with the action set out at paragraph 38.
40. The Council said its complaints and environmental health teams were now fully staffed. And its complaints handling and the Policy were under review. I therefore made no recommendations for service improvements.

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Final decision

41. I completed my investigation, finding fault causing injustice, on the Council agreeing the action at paragraph 38.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman