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

The complaint

1. The person that complained to us will be referred to as X. X complained on behalf of themself and other residents.
2. X complained about the Council’s decision to approve a planning application for residential development on land next to their home.
3. X said the new development is too big on the plot and causes an adverse impact on privacy and loss of sunlight to garden space.

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The Ombudsman’s role and powers

4. 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 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

5. 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. I read the Council’s planning guidance as it related to separation distances. I discussed the complaint with a senior planning officer.
6. 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

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the Council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
12. However, the courts have made it 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.
13. 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.
14. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
15. 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.
16. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
17. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.
18. Planning enforcement is discretionary and formal action should happen only when councils decide 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

19. X and those they represent live either side of a site that has planning permission to demolish a house and replace it with another.
20. The planning application and plans were 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 the Council’s design guidance;
• an appraisal of the main planning considerations, including the principle of development, the impact on the character and appearance of the area, the impact on residential amenity, trees, ecology, access and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. The Council approved the application subject to the recommendation.
22. X was unhappy with the Council’s decision and complained through the Council’s complaint process before coming to the Ombudsman.

The complaint

23. X complained about the Council’s decision to approve the original application. X said:
• the design is out of character with other houses in the area;
• the planning committee was shown the wrong site access photo;
• the site plan (edged in red) included land that did not belong to the applicant;
• the presentation was poorly handled by the planning officer;
• the building was constructed higher than shown on approved plans;
• the Council failed to provide residents with clear or concise guidance in response to their questions;
• the Council failed to properly consider and apply its planning design guidance which sets out separation distances between dwellings;
• in its comments on a more recent application to vary approved plans, the Council was quite critical of what had been built.

The Council’s response

24. In its response to the complaint, the Council said:
• it had sought legal advice on its decision, and had been advised its decision to approve the original application was lawful and justified on planning grounds;
• an incorrect access photo had been presented to the planning committee, but this did not affect the outcome of its decision or the planning judgements it had made;
• the main planning considerations had been included in the case officer’s report;
• the applicant had not built in accordance with the plans and submitted an application to vary the original approval. Some of the changes were small and likely to be considered ‘de minimis’ if they were subject to challenge.
25. In response to other issues X raised, a senior planning officer told me the Council’s SPD planning guidance was considered, but was not directly relevant to this application, because:
• rooflight windows are not included in the design guidance examples, and do have less impact as standard windows;
• the rooflight windows did not serve habitable rooms and did not need to be obscured;
• officers had visited the site and in their opinion, there was no direct overlooking;
• the approved house was larger but on the same footprint as the original house;
• the relationships between the proposed and existing dwellings are not typical layouts.
26. Since the Council had responded to X’s complaint, the application to vary the plans it had originally approved had been withdrawn. Instead, the developer had used the Council’s non-material amendment process for minor changes to plans.
27. The Council had already approved the first of these applications. It was for changes to the design details for some windows, rooflights and materials, The second application was for changes to a flue and a roof vent, and this was still being considered.

My findings

28. 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.
29. 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?
30. 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.
31. I should not investigate this complaint further, and my reasons are as follows:
• Before it made its decision, the Council considered the application plans, relevant guidance and policy, comments from residents and other consultees and the main planning consideration. The Council followed the planning process we would expect, and it is unlikely further investigation would find fault but for which the outcome would have been different.
• The Council acknowledged an error during the process relating to a site access photo. Even if we were to make a finding of fault in relation to this error, I consider it unlikely we would be able to show the outcome of the planning process would have been any different.
• The developer did not build in accordance with the original plans, submitted a plan to vary the application but then withdrew it. There may be further applications, or if the Council considers it expedient, further enforcement action. These are matters within the Council’s discretion and so are for it alone to decide. If it does take enforcement action, the developer will have a right of appeal, but third parties do not have the right to challenge judgements made by planning authorities.
• X believes the development does not accord with the Council’s planning design guidance, but the senior officer explained why they do not agree. I have looked at the application plans and the design guidance and found no obvious fault in process. The case officer did not have to set out every possible planning consideration in their report for the committee. The main issues were included by the case officer, and this is enough to show the report was adequate for its purpose. If the committee had any doubt or further questions, they could have raised their concerns before a decision was made. Even if we found fault in relation to this part of the complaint, we would need evidence to show the outcome would have been different, and for the reasons I have set out above, I consider this unlikely.
• X is unhappy with the responses the Council has provided to their complaints and enquiries. Since X made their complaint, Council officers have visited the site, met X, taken legal advice and written to explain how the decision was made. This was a satisfactory response to X’s complaint.

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Final decision

32. I ended my investigation as it was unlikely to result in a finding of fault, a recommendation for a remedy for X or those they represent, or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman