Summary: We will not investigate this complaint about how the Council failed to consider restrictive covenants when it processed a planning application. There is not enough evidence of fault to justify investigating and it is reasonable to expect the complainant to pursue her concerns through the court.

The complaint

1. Mrs X complained the Council failed to consider a restrictive covenant when it approved a planning application to her neighbour’s property.
2. Mrs X says the new application will impact on her view. She wants the Council to revoke the application approval and to provide compensation to her and her late husband for the avoidable stress and wasted time taken dealing with this matter.

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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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. A restrictive covenant is a private contract between two landowners imposed by deed, often on a sale. Covenants are not material planning considerations, which means a council should not take them into consideration when determining a planning application.
8. Mr and Mrs X’s neighbour submitted a planning application to alter their roof. Mr and Mrs X objected on the basis that it would remove a public view and if approved, it would breach a restrictive covenant on the property.
9. The Planning Officer’s report:
• included the objections received, including Mr and Mrs X’s;
• correctly identified that covenants were a legal matter and not a material planning consideration; and
• considered the visual impact of the development and its impact on the loss of views against its guidance and found it to be acceptable.
10. It is not our role to act as a point of appeal against decisions made by councils with which complainants disagree. We cannot question council decisions if they have followed the right steps and considered the relevant information. While Mrs X does not agree with the Council’s decision in this case, there is no evidence of fault to justify investigating.
11. If Mrs X remains unhappy she can pursue her concerns through the courts as a civil matter.

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Final decision

12. We will not investigate Mrs X’s complaint about how the Council processed a planning application, there is not enough evidence of fault to justify investigating.

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Investigator's decision on behalf of the Ombudsman