Summary: Mr X complained the Council failed to properly advertise a planning application near is property and failed to consider the impact on his residential amenity. There was fault in relation to the advertising of the planning application but this did not impact on the decision to approve the application. We have investigated the issues raised by Mr X about the impact on his residential amenity and found no evidence of further fault.

The complaint

1. Mr X complained the Council failed to properly publicise a planning application near his property and failed to properly consider the impact on his residential amenity.
2. Mr X says the new development impacts his privacy as there is direct overlooking.

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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. 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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What I have and have not investigated

5. We have already decided a complaint about the same planning decision that MX now complains about. I will not re-investigate matters we have already decided.

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How I considered this complaint

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

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What I found

Planning law and guidance

Planning applications – publicity

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. As well as meeting regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions.
12. The Council’s SCI states:
• Its weekly list of planning applications is provided to local newspapers.
• Applications for non-major development will be publicised by site notice, newspaper advertisement and on the Council's website.
• Site notices will be placed in a clearly visible and accessible location, on or near the site subject of the application.

Planning applications – consideration and approval

13. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
14. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
15. 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.
16. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Guidance on planning decisions

17. Guidance that might be relevant to a planning application can come from a variety of sources. Guidance is issued by central government and is mainly in its National Planning Policy Framework and in Planning Practice Guidance, both of which are found on the Government’s public website.
18. Planning authorities often issue their own guidance, and in this case there is guidance from the Essex Planning Officers’ Association (EPOA) as well as Maldon District Council. The Council’s guidance is issued in a supplementary planning document (SPD) and both guidance documents can be found on the Councils’ websites. The District Council’s SPD design guide refers to the EPOA’s design guide limit of 25 metres for new houses that back on to existing homes.
19. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
20. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
21. 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.

Key facts

22. Mr X lives next to a site on which planning permission was granted to build new houses. Planning permission was granted to build seven houses without dormer windows. A further application was then approved which added a further house and inserted dormer windows into the rear of most of the houses.
23. We have investigated and made a decision about a complaint from another resident who complained about the same site and same planning applications. Our decision on that complaint can be read here.
24. In our decision on this other complaint, we set out the Council’s position which included the following details:
• The case officer’s report mentioned that back-to-back separation distances were closer than distances published in its guidance, but the officer considered they were acceptable.
• In respect of the dormer windows which were part of the most recent planning application, the case officer acknowledged there would be a greater potential for overlooking but it was their planning judgement that this would not result in an unacceptable loss of residential amenity to neighbours.
• The recommended minimum separation distances are not planning policy but planning guidance on how policy is normally applied. The distances are set out in the supplementary planning guidance document. The Council explained how planning decisions are a balancing exercise which weighs up different material considerations (which sometimes conflict with each other) to determine if any harm is so great that permission should be refused.
• A site notice was installed in the same place as on a previous application and on the Council’s website as part of its weekly list. However, the Council accepted there was fault, as its own policy required an advertisement in a local newspaper advertisement, and this did not happen. The Council went on to explain that despite this fault, it was clear from the planning case officer’s report they had considered the impact the development would have on all neighbours before making its decision.
25. Mr X says he has two main concerns. That he was not notified of the last two applications and that the new properties are closer to his property than required by the guidance and that as a result he has lost all residential amenity. I will deal with each issue in turn.

Planning publicity and neighbour notification

26. The Council is under no obligation to directly notify residents who live adjacent to the development site. The Council has accepted it was at fault for failing to place a notice in a local newspaper, as required by its policy. In the complaint mentioned above, we took the view that while there was fault in respect of the publicity we did not consider this affected the outcome. We were aware the Council considered the impact on neighbouring properties including the addition of the dormer windows and the separation distances.
27. I am aware that in response to complaints by residents, the Council has accepted it could have used its discretion to put up other site notices on land at the rear of the site which would have been more accessible to Mr X.
28. The Council has provided training to its officers regarding publicity of planning applications. I consider this is a proportionate response and I do not consider there is any more I could achieve by further investigation.

Separation distances

29. The Maldon SPD says that where new development backs onto the rear gardens of existing housing, the distances between buildings are a minimum of 25 metres. As mentioned above, the Council was aware when determining the planning application that the separation distances were less than the published guidance. The case officer’s report also considered the impact of the dormer windows that were new additions from the previously approved plans.
30. These issues were properly considered when the planning application was approved and the judgement of the Council was that the application was acceptable. I appreciate Mr X does not agree with this assessment, but a difference of opinion is not evidence of fault.

Council’s enforcement separation distance measurements were wrong

31. The roles of planning case officers and planning enforcement officers are different. Planning case officers make judgements on whether to recommend approval, based on relevant local plan policy, and other planning considerations. To evaluate distances between existing (offsite) buildings, and new developments, they generally use information on scaled plans along with observations from site visits. Planning case officers do not usually survey application sites to take measurements or enter neighbouring land to make their judgements. They are assessing and evaluating applications, rather than surveying them.
32. However, when allegations are made that developments are not built in accordance with plans, they are investigated by enforcement staff using powers from a different part of the Town and Country Planning Act 1990. Planning enforcement officers do not remake planning application decisions or review the judgements made by their colleagues who assessed the applications. Instead, they focus on whether there is a breach of control, and if so, whether formal action is justified. In other words, these are different decisions, using different powers for different purposes.
33. Planning enforcement officers do sometimes measure sites to check whether development accords with plans, and as I understand it, that has happened here. Planning enforcement officers usually only measure land within the boundary of the application site (or site edged in red on the plan).
34. From the documents on this and the other complaint we have considered, enforcement officers did visit and measure building distances to the boundary and found no breach of planning control.
35. In reaching their decision, the enforcement officers considered an allegation, investigated it, were aware of their powers and made a judgement there was no breach of control. They followed the decision-making process we would expect so I find no fault.

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Decision

36. The fault identified in respect of the publicity for the planning application has already been suitably remedied by the Council and so I have made no further recommendation. There is no fault in relation to the other issues raised by Mr X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman