Summary: Mr X complained about the way the Council assessed a neighbouring planning application. Mr X said the new development will be overbearing and cause loss of privacy and overlooking to his home. We found there was fault in the Council’s initial assessment of the application by considering it against the wrong policy. However, there was no injustice because the Council re-assessed the application under the correct policy. We found no fault in the Council’s updated assessment or decision-making.

The complaint

1. Mr X complained about the way the Council assessed a neighbouring planning application.
2. Mr X said the planning officer who considered the application assessed it incorrectly, as it contravenes Policy 5 of the Council’s Local Plan. He said the planning officer exceeded their authority by making subjective judgements when Policy 5 makes clear that non-compliance with Policies 69 and 70 should result in a refusal.
3. Mr X also said the planning officer confirmed the application complies with Policies S1, S3 and S5 of the Parish Neighbourhood Plan, but it falls short, and the planning officer did not assess this in their report.
4. Mr X said the planning officer gave inconsistent, inaccurate and misleading information to the planning committee.
5. Mr X also complained the Council’s complaint response was inadequate.
6. Mr X said the new development will be overbearing and cause loss of privacy and overlooking to his home. It will also cause noise disturbance during building, and ongoing disturbances from vehicle movements close to his garden. He also said the lack of access poses an increased risk if there is an emergency.
7. Mr X would like the Council to revoke planning permission, or ask the developer to change their plans. He also sought compensation for the impact on his home, and the screening he will have to pay for.

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The Ombudsman’s role and powers

8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
9. 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

10. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning decision making and material considerations

12. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
13. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
14. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
15. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
16. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
17. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.
18. 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.
19. 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.

The Council’s Local Plan

20. Policy 5 of the Local Plan covers new housing in specified settlements, and states the Council will assess proposals against Policy 70. It also states the Council will refuse ‘backland’ development unless applications comply with Policies 69 and 70.
21. Policy 70 says the design of new housing should have regard to its setting and the character of its surroundings, and meet a list of specified objectives. Of relevance to this case, they include:
• A tolerable level of visual privacy in habitable rooms and, to a lesser extent in private gardens. This objective will normally be deemed to have been achieved if the distance between facing windows to the rear of the dwellings is 27 metres. A reduced distance of 18 metres may be permitted if the proposed dwelling has no overlooking rear windows on upper floors. Alternative methods of achieving a tolerable level of visual privacy, through such factors as screening, will normally be acceptable.
• So further development of adjoining land is not compromised if the application site abuts existing residential development, a minimum of half the above distances shall normally be attained. Account should be taken of the fact there may be alternative methods of achieving privacy objectives.
22. Policies 39 and 40 cover parking standards for residential development. Policy 40 sets out the number of parking spaces required based on the size of the home. Of relevance to this complaint, a three-bedroom home needs 2 allocated spaces and 0.5 unallocated. A four-bedroom home needs 3 allocated space and 0.5 unallocated.
23. Policy 39(i) states the relevant standard shall normally be complied with. However, requirements may be adjusted to reflect the circumstances of individual developments.

Parish Neighbourhood Plan

24. Policy S1 covers the location of development. It states proposals in the built-up area will be supported, particularly ones preserving or enhancing the character and appearance of the area.
25. Policy S2 confirms the Parish Council will give support to developments providing a mix of one, two, and three bed homes.
26. Policy S3 concerns the character of development, and states it should conserve and enhance the character of the area.
27. Policy S5 covers the design of development. It states proposals should integrate with their surroundings and meet the needs of the neighbourhood. This includes providing enough off-street parking, and not resulting in an unacceptable loss of amenity for neighbouring homes through loss of privacy, light, or visual intrusion.

What happened

28. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
29. A planning applicant sought permission from the Council to build new houses on the site of an existing home. The application site is on a main road, which is the access point, and shares a boundary with houses from an existing housing development at the rear. The existing home was to be demolished to make way for the new houses.
30. Mr X and other residents objected to the plans.
31. The planning officer (the officer) who assessed the application recommended it for approval in their report.
32. The application went before the planning committee. However, it was found the officer had incorrectly assessed the plans against Policy 4 of the Council’s Local Plan, and not Policy 5. Policy 4 covers in town developments.
33. The planning committee therefore adjourned the meeting so the officer could reconsider the application under Policy 5, which covers new housing in specified settlements.
34. The officer’s updated report again recommended the application for approval.
35. The officer’s updated report assessed the impact on Mr X’s home and identified the new development shares a boundary with Mr X. The officer considered that, while two homes on the development will be visible from Mr X’s rear garden, they are located a sufficient distance so as not to appear overbearing.
36. The officer noted the window-to-window distance between Mr X’s home and two of the new homes would exceed the 27 metres suggested in Policy 70 of the Local Plan.
37. The officer also noted the distance of 10 metres between the rear elevations of two of the new houses and Mr X’s boundary was below the 13.5 metres outlined in Policy 70. However, they considered a degree of overlooking is expected in residential areas, and highlighted existing homes in the area with similar distances to their rear boundaries. The officer did not consider this would cause enough harm to refuse planning permission.
38. The officer considered the applicant’s daylight and sunlight assessment. They did not consider the development would have an unacceptably adverse impact on light reaching Mr X’s home.
39. The officer noted the plans proposed 9 parking spaces at the site, but the Local Plan needed 14, meaning a shortfall of 4 spaces. The officer considered the fact the site was accessible, within a settled residential location, and with cycle parking, meant more chance of car-free travel. The officer also considered the parking arrangements complied with the Council’s Revised Parking Policies and Standards, which allow for arrangements to be slightly below the standard set out in the Local Plan.
40. The officer considered objections on highway safety, but confirmed the Highway Authority (HA) raised no objections as it considered traffic generation was not significant, and there were no highways issues of significant concern.
41. The officer also considered comments from the Fire and Rescue Service (the FRS). The FRS noted there was heavy reliance on cars parking in a specific way and bins kept in specific places, which needed managing. However, the FRS considered access to the site appeared to be adequate.
42. The Council’s planning committee later granted planning permission, subject to conditions.
43. Mr X complained about inaccuracies presented to the planning committee which he considered affected the outcome. He said there were significant concerns about lack of parking spaces and the ability of FRS vehicles being able to turn. He said the officer should have told the FRS where the expected shortfall cars may park. Mr X also said the application did not meet Policy 5 of the Local Plan and the officer did not consider the Parish Neighbourhood Plan.
44. The Council said the officer made clear in their report where the development fell short of policies, and the planning committee had all relevant information to reach a decision.
45. The Council said the officer considered Policy 5 of the Local Plan, and relevant policies from the Neighbourhood Plan. It said the proposed development was acceptable as it will not detract from the character and appearance of the street scene. It said the distances to the rear boundaries with neighbours would be below that set out in Policy 70 of the Local Plan. However, the Council did not consider this to cause enough harm to refuse planning permission. It recognised parking provision falls short of Policy 40 of the Local Plan. However, it considers it to be in line with the Council’s Revised Parking Policies and Standards.
46. The Council recognised Mr X did not agree with the officer’s report, but it said such reports do not need to be perfect, and cannot include every consideration. It said it had no further comments to make on the issues complained about.

Analysis

47. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
48. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
49. The officer’s initial report incorrectly assessed the application against Policy 4 of the Council’s Local Plan. This is fault. However, it did not cause significant injustice, as the planning committee meeting was adjourned, and the officer reconsidered the application under Policy 5.
50. Mr X complained the Council’s Local Plan contains absolutes on separation distances between new and existing developments. He said the officer was therefore at fault for using their own subjective judgement about the impact or harm created by a separation distance falling just short of the distance stated in the Plan.
51. However, I found the wording of the Local Plan allows planning officers to assess competing interests and use their professional judgement. The Plan uses words and phrases like ‘tolerable’ level of privacy, ‘should be provided’ or ‘will normally be achieved’ and ‘shall normally be attained’. I am satisfied this gives officers discretion. The Plan also refers to alternative ways of achieving privacy, such as through screening.
52. The planning officer’s report has properly assessed the impact on Mr X’s home, but did not find any significant harm. That was a professional judgement the planning officer was entitled to make.
53. Mr X complained the officer did not assess how the development complied with the Parish Neighbourhood Plan.
54. While the officer could have gone into more detail on some points, I do not consider this is fault. The officer considered the material points of the application, and which are relevant to the Parish Neighbourhood Plan. This included the design and character of the development, parking, impact on residential amenity, and light. The officer also considered objections from residents and consultee responses. The courts recognise officer reports cannot include everything, and should not be hyper scrutinised.
55. I appreciate the points raised about parking and highway safety. However, I found no fault in the officer’s consideration of these issues. The site has 4 less parking spaces than required under the Local Plan, but the officer considered this was acceptable following the Council’s Revised Parking Policies and Standards.
56. It is debatable what, or how many parking spaces, ‘slightly’ below standard might be. But it allows for some discretion. In this case, a shortfall of 4 spaces out of 13 is not insignificant, but the officer also pointed to the accessibility of the site, and the fact neither the HA nor the FRS raised any objections.
57. Mr X criticised the Council for not going back to the FRS with details of the number of expected cars and the exact layout of parking spaces. However, I would expect the FRS to ask the Council for more information if it had any concerns, rather than raising no objections. The FRS did not say it could not gain access, nor did it ask for any further information, assurances, or for any conditions to be attached to the planning permission. I do not consider the Council to be at fault in these circumstances.
58. Mr X also complained the planning officer gave inaccurate and misleading information to the planning committee. The planning committee had sight of the officer’s updated report and also heard from interested parties, including objections to the application. Those objections raised similar concerns to Mr X. The final decision was for the planning committee to make. It did not have to follow the officer’s recommendation. I found no fault in the officer's report, and I have not seen evidence the officer’s assessments tainted the decision or render it flawed.
59. Mr X raised many points over his stage one and two complaints. I can appreciate his frustration the Council did not answer all the points raised. However, I do not consider this was fault. The Council referred to the officer’s report for their assessment of the material planning considerations, which is what we would expect. Planning officers are entitled to their professional judgement, and the Council’s complaint process cannot reconsider the application or reach a view on its merits.

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Final Decision

60. I found there was fault in the Council’s initial assessment of the application by considering it against the wrong policy. However, there was no injustice because the Council re-assessed the application under the correct policy. I found no fault in the Council’s updated assessment or decision-making.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman