Summary: Mr X complained the Council failed to meet publicity requirements for a planning application which meant he missed his opportunity to make representations. We have found fault by the Council but consider the agreed action of an effective apology and symbolic payment provides a suitable remedy.

The complaint

1. Mr X complains the Council failed to meet the publicity requirements for a planning application.
2. Mr X says because of the Council’s fault he did not receive notice of the application and missed the opportunity to make representations about the impact of the development on his property particularly in relation to drainage and loss of privacy.

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The Ombudsman’s role and powers

3. 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)
4. 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 read the papers provided by Mr X and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and provided an opportunity for comment.

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What I found

Background and legislation

8. Regulations set out the minimum requirements for how councils publicise planning applications.
9. For major development applications, councils must publicise the application by:

• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.

10. For all other applications, including minor developments, councils must publicise by either:

• a site notice; or
• serving notice on adjoining owners or occupiers.

11. The Town and Country Planning (Development Management Procedure) (England) Order 2015 ‘the Order’ provides that “adjoining owner or occupier” means any owner or occupier of any land adjoining the land to which the application relates.

Key events

12. The Council received a planning application towards the end of 2022 for a house and associated works.
13. The Council publicised the application by sending notification letters to adjoining properties. The Council did not place a site notice for the application and did not send a notification letter to Mr X.
14. Mr X’s property was not completed at the time of the application but he owned land adjoining the application site. Mr X’s property is to the north of the application site.
15. The case officer’s report for the application sets out the site sloped from north to south and highlighted a newly constructed dwelling to the south and existing semi-detached dwellings to the north opposite the site entrance. The report also set out the site history which included a previous outline consent and reserved matters consent with the principle of a single dwelling being established. The report noted the proposed building was larger than the previous approval but considered the plot was sufficient to accommodate this. The case officer assessed the proposal would not result in any significant overlooking, overbearing or overshadowing for existing neighbours and that a 1.8 metre timber fence would form the boundary with the dwelling to the south. This was subject to a planning condition.
16. Mr X complained to the Council in early November 2023 that he had not been notified about the application which related to a site adjoining his property. Mr X noted ‘the Order’ required a site notice or notice to adjoining landowners/occupiers. Mr X noted a site notice had not been erected and he had not been sent a notification letter. Mr X explained he owned the property to the north of the application site and the land that adjoined the private access to the site on its east side. Mr X highlighted he had previously complained about not being notified about another application on an adjacent site and was told in September 2022 that lessons had been learned to prevent the same issue happening again.
17. The Council responded to Mr X’s complaint in mid-November. The Council noted Mr X’s property did not have a postal address until July 2023 which was after the approval of the application and so it would not have been possible to send a notification letter at that time. The Council also noted Mr X’s property was not completed at the time of validating the application and so the case officer did not question that a notification had not been sent. The Council stated a site notice had not been required as it had issued notification letters.
18. Mr X remained unhappy with the Council’s response and sought to escalate his complaint at the end of November. Mr X said the Council had disregarded that he had been the owner of the adjoining land since 2016 and provided details of the site history. Mr X reiterated the publicity requirements applied to all owners of adjoining land and the Council had failed to notify him which denied him the opportunity to make representations.
19. The Council provided a further response to Mr X towards the end of December. The Council apologised that Mr X did not receive notice for the application. The Council noted the application related to an amended design and there had been a previous outline permission in 2018 and subsequent reserved matters application in 2020 with a certificate of lawfulness confirming a lawful material start to the development in 2021. The Council confirmed it had updated its internal site visit guidance to make direct reference to ‘the Order’ and advise officers that adjoining owner or occupier meant any owner or occupier of land adjoining the land to which the application related. This meant that where the red line area of an application adjoined unidentified land such as a field, access track or partly constructed development a site notice was required. The Council noted it had advised Mr X in September 2022 in response to a separate complaint about the email notification service to never miss a planning application in his area and the application the subject of this complaint had been received in October 2022. The Council partly upheld Mr X’s complaint as it had not displayed a site notice for this application which would have met the publicity requirements. The Council apologised that this did not happen and explained it had updated its internal site visit guidance and publicity process and was also to amend the wording on its website to reflect this change.
20. Mr X complained to the Ombudsman in June 2024. Mr X accepted there had been changes to the Council’s policy to avoid a reoccurrence but highlighted that the response he had received did not address the impact caused. Mr X said he suffered from severe drainage and overlooking issues which could have been controlled through planning condition if he had been given the opportunity to make representations about the application. Mr X explained the developer had blocked an historic field drain and no condition had been attached to add screening and/or retain the existing hedge and screening along his boundary. Mr X was also unhappy the Council had sought to place responsibility on him to check applications online when there was no obligation on him to do so. Mr X wanted the issues resolved with a proper apology from the Council and a financial remedy for the stress, damage and inconvenience.
21. In responding to the Ombudsman, the Council has provided details of the planning history of the wider site at this location including earlier applications which raised the general issue of surface water drainage. The Council noted these applications did not result in a condition being imposed that related specifically to the field drain that Mr X has now highlighted. The Council says it would not have been possible without additional information about the field drain to know if it would have been considered a material consideration if it had been raised as an issue at the time and if it had been whether a planning condition would have been warranted when applying the relevant tests for planning conditions.
22. The Council has also noted that residential amenity was considered in the previous approvals at the site including the addition of a 1.8 metre fence on the boundary with the property to the south and assessed there would be no unacceptable impact given the difference in levels and separation distance of approximately 24 metres. The Council says the separation distance to Mr X’s northeast property is further away at 28 metres and the property is at an angle the other side of an access lane.
23. The Council provided details of the changes it had made as a result of Mr X’s complaint as set out in its complaint correspondence.

My consideration

24. The Council has accepted it did not meet the publicity requirements for this application. This is fault.
25. Although the Council provided an apology to Mr X for this fault during its complaint procedure I do not consider this followed the Ombudsman’s guidance on making an effective apology (please see paragraph 34 below). In addition, the Council did not consider the impact on Mr X in terms of the missed opportunity to make representations.
26. On balance, I consider Mr X would have wished to make representations on this application. I also consider, on balance, that those representations would have included issues relating to overlooking and drainage.
27. In terms of overlooking, I have noted that previous approvals at the site resulted in the addition of a planning condition requiring a 1.8 metre fence on a boundary with a property to the south when privacy concerns were raised. I also note Mr X’s property is slightly further away and at a slightly higher level and at an angle to the development. Although a finely balanced decision, I cannot say representations from Mr X on this point would have resulted in a similar condition for his boundary.
28. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and they are an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
29. In this case, Mr X was not able to make a representation about drainage including any concerns he had at the time about the potential impact of the development on a field drain. However, I consider the specific issue of the field drain is too speculative, even on a balance of probabilities, to reach a view about what the outcome would have been in terms of any planning condition or informative that may have resulted and whether any such action would have prevented the issues Mr X subsequently experienced.
30. I should also explain that, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we would expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals. Remedies for these matters are available in the civil courts and tribunals.
31. In the particular circumstances of this complaint, I do consider Mr X has been caused frustration and a degree of uncertainty as a result of the Council’s fault in the publicity process requiring a remedy.
32. I am satisfied the Council has already taken action to review and amend its procedures to ensure it meets the publicity requirements for future applications and so I have not made a service improvement recommendation.

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Agreed action

33. The Council will take the following action within one month of my final decision to provide a suitable remedy to Mr X:
1. write to Mr X to apologise for failing to meet the publicity requirements for the relevant planning application; and
2. pay Mr X £300 to recognise his frustration and uncertainty from the above fault.
34. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman