Summary: X complained about the way the Council dealt with a planning application. X said that their privacy is affected by new development on land at the rear of their home. We had already found fault during a previous investigation from a different person about the same site related to a failure to advertise planning applications in a local newspaper, and during this investigation, we did not reinvestigate this or other issues we had already considered. We did investigate new issues that X had raised but did not find fault, or fault that had not already been remedied by the Council.

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 development behind their home. X said the Council:
• had not followed its own guidance on separation distances between new and existing homes;
• did not accord with guidance issued by the Local Government Association (LGA) in its report, ‘Probity in planning’ and so the process by which it made its decision was not fair or transparent;
• did not notify X or others who live near the rear of the site, so they lost their opportunity to object to the application;
• had used the same approach when it put site notices up, but this was not true because the notices were placed in different locations in the two most recent applications;
• had measured the separation distances on site incorrectly;
• failed to act after the developer started to cut a hedge which was shown on a condition discharge application to be 5 metres high and marked for retention; and
• approved revised plans unfairly in favour of the applicant.
3. X said that because of the Council’s failure to act properly, their home is overlooked by dormers in the roofs of the new houses.

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The Ombudsman’s role and powers

4. 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 we find fault, we can recommend a remedy for the injustice it caused. 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)
5. 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 not investigated

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

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How I considered this complaint

7. 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.
8. As another council’s policy is referred to below, references to ‘the Council’ relate only to Maldon District Council.
9. 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

Planning applications – publicity

10. Regulations set out the minimum requirements for how councils publicise planning applications.
11. 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.
12. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
13. 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.
14. 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

15. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
16. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
17. 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.
18. 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

19. 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.
20. Planning authorities often issue their own guidance, and in this case there is also guidance from the Essex Planning Officers’ Association – The Essex Design Guide. The Council’s own 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 Essex Design guide limit of 25 metres for new houses that back on to existing homes.
21. 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.
22. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
23. 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.

Background

24. X lives next to a site on which planning permission was granted to build new houses.
25. The most recent planning application approvals are:
• an earlier approval for several houses without dormer windows in the rear roof plane; and
• a more recent approval in which the developer added a housing unit and dormer windows to the rear of all new houses.
26. We have already 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.
27. In our recent decision on this other complaint to the Ombudsman, we set out the Council’s response to us, which included the following details:
• That the planning case officer’s report referred to the Local Development Plan, national planning policy and the Maldon District Design Guide.
• 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, 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.
28. We decided there was some fault, but it did not make a difference to the outcome of the planning decision. We found no fault in the way the Council considered the merits of the planning applications, including its opinion that the development which was closer than separation distances set out in its guidance was acceptable.

The Council’s response to X’s complaint

29. In its response to X’s complaint, the Council said:
• it had already accepted there was fault as it had not advertised the planning application in the local newspaper;
• it put up a site notice to inform the public about the application in one location at the front of the site, but not near X’s home, which is at the back. It said that though this complies with legal requirements, it was not restricted to one site notice where circumstances showed a need for more. The Council accepts it could have put up more notices, as this site borders addresses in different streets. It said this case had already led to officer training.

My findings on X’s complaint

30. X’s complaints are set out above. My findings and comments on them are as follows.

Council did not follow its own guidance on separation distances

31. We have already considered this issue during our earlier investigation and decided there was no fault in the way the Council had acted. We explained the Council’s obligation is to consider planning policy and guidance, rather than follow it as if it created binding rules.

Council planning decisions did not accord with LGA guidance

32. The LGA guidance could be a planning consideration, but case officer reports do not need to include analysis and comment on every possible consideration, just the key issues directly relevant to each application. I have seen no evidence to suggest the LGA guidance was particularly relevant as a key consideration in this case and so find no fault.

Planning publicity and neighbour notifications

33. I read the regulations and the Council’s SCI policy but found no obligation for it to directly notify X or others who live adjacent to the site.
34. During our last investigation, the Council accepted it was at fault for failing to place a notice in a local newspaper, as required by its SCI policy. I have not re-investigated this issue.
35. In response to X’s complaint, the Council also accepted it could have used its discretion to put up other notices on land at the rear of the site. It has decided to provide training to its officers to improve its service. This is a proportionate response to this issue, and I do not consider there is more I can achieve by further investigation.

Council’s enforcement separation distance measurements were wrong

36. The roles of planning case officers and planning enforcement officers are different. The planning case officer made 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.
37. 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.
38. 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).
39. 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.
40. 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.

A hedge shown on a condition discharge application was cut

41. The Council responded to an earlier draft of this decision to say:
• Its planning enforcement officers did investigate a complaint about the removal of part of the hedge, along with other enforcement issues.
• Its investigation found that a fence on the boundary shown on approved plans required removal of part of the hedge. The Council decided there was no breach of control, as the development complied with the approved plans.
• The enforcement case was closed after a site visit showed the work was completed.
42. Before it made its enforcement decision, the Council considered the allegation, its powers under the Town and Country Planning Act 1990, plans approved under an application, and what it found during its site visit. This is the decision-making process we would expect, so I find no fault in how this decision was made.

Plans altered between applications in favour of the applicant

43. As I have already said above, I am not reinvestigating issues considered and decided by the Ombudsman in response to the other complaint. Because of this, there is no need for me to comment on the specific application approvals.
44. However, this part of X’s complaint is not about a fault in the decision-making process. In general terms, it is up to each applicant to decide what applications to make, and the Council must consider and decide each application on its merits.

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Decision

45. I have completed my investigation because I found no fault in the way the Council acted.

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Investigator's decision on behalf of the Ombudsman