Summary: We found no fault on Mr D’s complaint about the Council failing to properly consider representations against a planning application for a nearby new development. He claimed this would affect his amenities. The Council properly considered the application. There was some delay by the Council when dealing with his complaint which caused frustration. The agreed action remedies the injustice caused.

The complaint

1. Mr D complains about the Council failing to properly:
1. consider representations against a planning application for a new property on land opposite his home; and
2. deal with his formal complaint.
2. As a result, his amenities will be affected as the property will be built too close to his property.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any 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)

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How I considered this complaint

5. I considered all the information Mr D sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr D and the Council. I considered their responses.

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What I found

6. Mr D lives in a bungalow across the road, and slightly higher, to a plot of land. The Council received, and approved, a planning application for a new single storey property (the development) on this plot. The plot is within an existing housing estate. A previous planning application was withdrawn. Building works have yet to start.

Complaint a): Consideration of planning application

Separation distance

7. Mr D argued the development was closer than it should be under Council policy. His bungalow was at a slight angle to the road to the front, but he complained his bedroom window will face the new development’s window.
8. He considered the separation distance shown on the approved plans was not correct. He noted the plans do not show a straight line between the development, his property, and his neighbour’s property, when marking the separation distance. This was because the line marking it has a right angle immediately before it reached his window. Instead of 20 metres, he measured the distance as 18.5 metres.
9. The Council did not accept the distances shown on the plans were wrong. It checked the submitted plans and found them correct. It also explained the 20 metres figure was guidance. It did not prevent building within that distance provided it was justified. On this application, the Council confirmed the development complied with the 20-metre separation distance as the separation distance was 19.928 metres from Mr D’s house.
10. The Council supported what it said with copies of screenshot evidence of plans showing how it measured the distance. The planning officer also explained how he calculated it. There was no site visit to take measurements. He measured the submitted plans from the distance from the edge of the footway to the development’s windows using a Council software system. He also measured the distance using an Ordnance Survey base map. The issue of the right-angle lines on lines marking distance were produced by the applicant’s agent. It was not discussed by the officer because he had already checked measurements from exact points.
11. The planning officer’s report referred to Council policy, ‘The Alterations and Extension to Residential Properties: A Supplementary planning Document’ (the Policy). This set out the separation distances to maintain adequate privacy distances and avoid overbearing relationships, undue loss of light, and outlook. Dwellings should maintain ‘a minimum distance of 20m between habitable room windows in properties that directly face each other’.
12. The report also referred to Council policy HS5 of its Local Plan. This stated the density of development should be in keeping with local areas and have no detrimental impact on the amenity, character, appearance, distinctiveness, and environmental quality of an area.

My findings

13. I found no fault on this complaint. This was because I am satisfied the Council checked the measurements shown on the drawings and explained how this was done. The separation distance was considered in the planning officer’s report to the planning committee. The minutes of the committee meeting show separation distances were considered.
14. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.

Height difference

15. Mr D complains his house is 1.74 metres above the pavement level to the front of his house. He was concerned this meant there should be an additional amount of separation distance between the two properties which the Council failed to consider.
16. The Council considered the height difference between the two properties of about 1 metre was not enough to justify further separation.
17. The Policy states its separation distance standards need to take account of significant change in levels or new accommodation provided at a higher storey which may result in main windows to a single storey extension having the same impact as a two-storey extension. In these cases, there needs to be a further three metres of separation for each 2.5 metre, or one storey of height difference.

My findings

18. I found no fault on this complaint. This was because this was not a situation where further separation distance applied. The Council decided the change in level of the land was not significant. Mr D’s house would be at a higher level than the development, not the other way round. Extra separation distance was only needed where the impact of the single storey development would be detrimental to a nearby property. As Mr D accepted, the development would be at a lower level than his property.

Flooding

19. Mr D has concerns about the impact the development would have on local flooding. This was because some land would be removed to make the site level. The number of trees remaining would be reduced. He has concerns about the risk to gardens below the site.
20. Mr D noted on a previous planning application, the investigation company said a full flood assessment had not been done. The survey it recommended was not done for the application the Council approved.
21. He noted the stream on site was almost bursting its banks when photographs were taken in January 2023.
22. The Council saw nothing referring to a flood assessment submission in either application as claimed by Mr D. The planning officer’s report referred to Standing Advice from the Lead Local Flood Authority where there was a low risk of surface water flooding for minor planning applications. This said it had no objection to a proposed development which was located in Flood Zone 1. This was the lowest level of risk of flooding from rivers and/or the sea at less than 0.1% annual probability of it flooding.
23. Applications within this Zone do not trigger requirements for a detailed flood risk assessment. Although there was a stream, it was behind the site and considered a low risk for surface land water runoff. This was all considered when it decided the planning application.

My findings

24. I found no fault on this complaint. The evidence shows the Council was aware of the concerns about the risk of flooding and took these into account when deciding the application.

Representations

25. Mr D complained when the Council approved this application, it failed to properly consider the representations it received about it. Their concerns were dismissed.
26. The Council explained the officer read each representation and summarised them in the report for the planning committee. Where representations made points that were planning considerations, these were considered when reaching the decision.
27. The planning officer’s report noted more than 16 representations were received. It provided a brief summary of the grounds they raised. These included the impact on ecology, the character of the area, privacy, impact on the watercourse, and visual amenity, for example.
28. It went on to consider the impact on residential amenity. It referred to policy which required it not to have an unacceptable adverse impact on neighbouring development by being over-bearing, oppressive, overlooking, or leading to an unacceptable loss of light. It noted it was over 20 metres from the existing dwellings on the road outside. The report also considered visual amenity, highway safety, ecology, trees, and character of the area. I have also seen photographs of the site and its surrounds, as well as the representations received.
29. The minutes of the planning committee meeting show members discussed the lack of flood risk, trees, separation distances, property size, and Local Plan Policy.

My findings

30. I found no fault on this complaint. This was because I am satisfied the evidence shows representations making relevant points which were material planning considerations were considered. Material planning considerations relate to the use and development of land in the public interest, and not to private considerations such as an applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation, and noise.
31. All the representations were available to the planning committee had members decided they wanted to read them as they are available on the Council’s website for this application.
32. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless founded upon valid material planning reasons.
33. It was for the decision maker to decide the weight to be given to any material consideration when determining a planning application.

Complaint b): Complaint process

34. Mr D complained to the Council in September 2023 about the planning decision on this application which he wanted it to reconsider. He chased the Council up about it the following month and the Council responded a few days later.
35. Mr D responded to the Council’s letter in early December. He wanted to continue with his complaint and was told it would respond the following month. Hearing nothing further, he contacted the Council again in early February 2024. The Council responded the following week, apologising for the delay and said it would try to respond as soon as possible.
36. It sent him its final response under its complaints procedure in May, after he complained to us. The Council apologised for not responding to his follow up letter in December 2023.

My findings

37. I found fault in the way the Council dealt with Mr D’s complaint. This was because there was a period of delay of about five months responding to his December 2023 correspondence.
38. There was also a lack of clarity and information about whether the Council was treating Mr D’s September letter as a complaint. There was no information given about the complaints procedure stages.
39. The complaint procedure stated a manager would send a full response within 10 working days under stage 1 or explain why it would take longer. Should a complainant remain unhappy with the stage 1 response, they could ask for it to go to stage 2. Again, a full response would be sent within 10 working days, or an explanation given about why it would take longer.
40. I consider the delay, the lack of clarity, and lack of information caused Mr D some distress as he experienced uncertainty and frustration.

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Agreed action

41. I considered our guidance on remedies. I also considered the apology the Council already gave about the complaint handling.
42. The Council agreed to carry out the following action within four weeks of the final decision on this complaint:
1. Review why there was a delay responding to his complaint and act to ensure it cannot be repeated in the future.
2. Ensure the planning team are reminded about the timescales set out in the complaints procedure.
3. Ensure the planning team is aware of the need to make it clear to those complaining that it is being treated as a complaint under its complaints procedure and what that involves.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I found the following on Mr D’s complaint against the Council:

• Complaint a): no fault;
• Complaint b): fault with the agreed action remedying the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman