Summary: Mr X complained about the Council’s handling and consideration of a planning application for dwellings on neighbouring land. The Council failed to advertise the application in accordance with its own policy but this did not result in something being built that otherwise would not have been.

The complaint

1. Mr X complains about the Council’s handling and consideration of planning application for dwellings on neighbouring land.
2. Mr X says the properties cause overlooking and lack of privacy.

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The Ombudsman’s role and powers

3. 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)
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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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered the relevant law, policy and guidance;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Publicity for planning applications

6. Regulations set out the minimum requirements for how councils publicise planning applications.

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.

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

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

8. As well as 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. In their SCI policy councils may commit to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

Decision making and material considerations

9. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
10. 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.
11. 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.
12. Government statements of planning policy are material considerations.
13. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
14. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Key facts

15. This section sets out the key events in this case and is not intended to be a detailed chronology.
16. The principle of development on the neighbouring land was established in 2022 when outline planning permission was granted. Then the Council approved an application for seven dwellings in 2023. Followed by the approval of an application for eight dwellings in 2024. This is the development Mr X complains about.
17. When considering the application latest application, the case officer produced a delegated decision report. This report includes details of the planning history of the site, relevant guidance, consultation responses, neighbour objections and consideration of the material planning considerations.
18. Mr X made a formal complaint to the Council in September 2024. He complained about the detrimental impact the development would have on his residential amenity as well as about the way the Council approved the application. Mr X said his main concerns were noise and overlooking. He also complained about the “questionable case officer decision making”. Mr X was concerned the final application included dormer windows that would increase the level of overlooking.
19. The Council replied to Mr X within five working days. The Council response was detailed and comprehensive, responding to all points raised by Mr X. It said, amongst other things:
• Dormer windows can be inserted under permitted development rules;
• Separation distances reflect the character of dwellings in the immediate vicinity;
• There will inevitably be construction noise but the developers will have to adhere to a construction management plan which will include permitted working hours;
• The advertising of the application met the requirements of legislation and individual neighbour notification letters were not required; and
• There is a condition which requires the retention and protection of the existing hedge.
20. Mr X disagreed with several points and so escalated his complaint to stage two of the Council’s complaint procedure. Mr X said the insertion of the dormer windows would dramatically increase overlooking into private spaces and the assessment of the impact was inadequate. He said the fact only one objection has been received meant the consultation process was not sufficient even if it met legal requirements.
21. The Council responded two months later. It apologised for the delay saying that annual leave and officer sickness delayed an initial site visit. The Council again provided a detailed response including:
• The correct consultee process was followed and there was no misleading of statutory consultees;
• The assessment correctly referred to the Local Development Plan, national planning policy and the Maldon District Design Guide;
• it mentioned the construction management plan which was designed to limit construction noise;
• The assessment mentioned back-to-back separation distances which it considered to be accurate;
• In respect of the dormer windows, the report acknowledged greater potential for overlooking but the planning judgement was this would not result in an unacceptable loss of residential amenity to neighbours;
• The recommended minimum separation distances are not policy but are set out in the supplementary planning guidance document. It explained how planning decisions are a balancing exercise which weighs up material considerations and policy which sometimes conflict, to determine if any harm is so great that permission should be refused; and
• It said 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, there was an error as its own policy requires an advertisement in a local newspaper and this did not happen.
22. Remaining dissatisfied, Mr X complained to the Ombudsman.

Analysis

23. The Ombudsman considers complaints of fault by a council which result in a significant injustice to the person making the complaint. We consider the process followed by the Council but do not make decision on behalf of the council or provide a route of appeal against their decisions. We cannot uphold a complaint just because a person disagrees with the council’s decision.
24. The Council accepts fault in this case. While it met the statutory requirements regarding the advertising of planning applications, it did not meet the requirements of its own policy by placing an advertisement in a local newspaper. As there is fault, I considered how Mr X was affected as a direct result.
25. Mr X says he was unaware of the application and so unable to make objections. However, he did make a formal complaint and raised his concerns about the development. The Council’s responses to those complaints addressed his concerns which included overlooking, lack of privacy, construction noise and permitted development rights for the dormer windows. The Council’s view was that these issues were considered and the planning decision was that the proposal would not cause harm so detrimental as to warrant refusal of the application.
26. The delegated decision report prepared by the case officer also specifically mentions Mr X’s property. It notes the separation distances are similar to those in a previously approved scheme. It also notes that while there is greater potential for overlooking from the dormer windows, it considered the separation distances are sufficient to ensure no unacceptable loss of residential amenity. I am therefore satisfied that even though Mr X did not make objections, the Council properly considered the impact on his residential amenity. While Mr X may not agree with the Council’s assessment of the impact, there is no basis for me to question the professional judgement reached.
27. There is no evidence to suggest that even if Mr X had made objections that the outcome of the planning application would have been different.

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Decision

28. I will not pursue the complaint further as there is no evidence of fault causing a significant enough injustice to warrant further action by the Ombudsman.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman