Summary: X complained about the Council’s decision to approve a planning application on land behind X’s home. We decided to not investigate further because we were unlikely to find evidence of 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 a planning application on land behind X’s home. X said:
• not all of their objections were considered before the planning decision was made, including X’s concerns about differences in land levels;
• the development does not comply with the Council's design guidelines; and
• the development will affect X’s amenities.

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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 alleged 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 also considered our guidance on remedies for planning complaints, which can be found here.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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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. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
12. 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.
13. 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.
14. 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.
15. 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.
16. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
17. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.

What happened

18. X’s neighbour applied for planning permission to develop their home. X lives behind the application site, and windows in the rear of X’s home do not face directly towards the new development, but are offset at a slight angle. The plans show that windows and/or parts of windows in the rear elevation of the development are obscurely glazed.
19. The proposed development was considered by a case officer, who wrote a report.
20. The case officer’s report included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from neighbours, including X, and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the design of the proposal, the impact it would have on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. The application plans and the case officer’s report were considered by a senior officer, who approved the application using delegated authority.

My decision

22. 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.
23. 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?
24. 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.
25. I should not investigate this complaint further, and my reasons are as follows:
• I did not find evidence of a significant injustice to X. Even if we were to find fault, it is unlikely to result in a recommendation for a remedy. This is because the relationship between X and their neighbour is not close or unusual enough to justify a remedy.
• The case officer report shows plans, X’s objections, relevant policy, including the Council’s design guidance and the main planning issues were considered before a decision was made. In these circumstances, I consider it unlikely further investigation would result in a finding of fault.

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Final decision

26. I ended my investigation because I found no evidence of a significant injustice to X or that was likely to lead to a finding of fault.

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Investigator's decision on behalf of the Ombudsman