Summary: Mr X complained the Council failed to uphold its planning policies when approving a new development near his home. Mr X said the development is overbearing and will impact his privacy. 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 updated assessment or in the Council’s decision-making.

The complaint

1. Mr X complained the Council failed to uphold its planning policies when approving a new development near his home.
2. Mr X said the development does not comply with Policy 70 of the Council’s Local Plan on window to window and boundary distances. He also said the Council ignored the Parish Neighbourhood Plan, which will undermine the character of the area.
3. Mr X said the development is overbearing and will impact his privacy, due to reduced separation distances and inadequate mitigation.

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The Ombudsman’s role and powers

4. 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)
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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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. I considered any comments received before making a final decision.

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What I found

Planning decision making and material considerations

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. 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.
10. 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.
11. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
12. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
13. 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.
14. 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.
15. 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

16. 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.
17. 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.

Parish Neighbourhood Plan

18. 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.
19. Policy S2 confirms the Parish Council will give support to developments providing a mix of one, two, and three bed homes.
20. Policy S3 concerns the character of development, and states it should conserve and enhance the character of the area.
21. 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

22. 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.
23. 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.
24. Mr X and other residents objected to the plans.
25. The planning officer (the officer) who assessed the application recommended it for approval in their report.
26. The application went before the planning committee. However, it was found the officer had mistakenly assessed the plans against Policy 4 of the Council’s Local Plan, and not Policy 5. Policy 4 covers in town developments.
27. The planning committee therefore adjourned the meeting so the officer could reconsider the application under Policy 5, which covers new housing in specified settlements.
28. The officer’s updated report recommended the application for approval again.
29. The officer’s updated report assessed the impact on Mr X’s home. It identifies the distance from the nearest plot at the development to Mr X’s rear boundary is 11 metres. The officer recognised this is below the 13.5 metres outlined by Policy 70 of the Local Plan. However, they considered the rear facing openings of the plot did not have direct views towards Mr X due to windows having obscure glazing.
30. The officer also considered the distance was enough to not appear overbearing, and said other nearby homes have similar distances to their rear boundaries. They considered 11 metres was not uncharacteristic of the area, and did not cause enough harm to refuse the application.
31. The officer identified the window-to-window distance between the same plot and Mr X was 20 metres. They recognised this is below the 27 metres mentioned by Policy 70 of the Local Plan, but considered adding obscure glazed windows was enough to mitigate against overlooking.
32. The Council’s planning committee later granted planning permission, subject to conditions.
33. Mr X complained the Council’s decision went against key planning policies, including Policies 5 and 70 of the Council’s Local Plan, and conflicts with the principles of the Parish Neighbourhood Plan.
34. Mr X said the planning officer’s report accepted the development does not meet the required standards in Policy 70 of the Local Plan. On the impact on his home, Mr X said the 27-metre window-to-window requirement is not met, with only 20 metres achieved. He said the distance between the development and his rear boundary should be at least 13.5 metres but is only 11 metres.
35. Mr X said the planning officer made misleading comparisons with other homes in the area. He said some comparisons given either meet the window-to-window distance guidelines or do not directly overlook neighbouring homes in the same way as the new development.
36. Mr X also said the Parish Neighbourhood Plan emphasis the need to preserve the character of local settlements and privacy of existing residents. He said approving ‘backland’ development undermines the objectives of the Neighbourhood Plan.
37. The Council recognised the development fell short of the standards outlined in Policy 70 on window-to-window distances and boundary distances. However, it argued these shortfalls do not cause significant harm in this case.
38. 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

39. 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.
40. 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.
41. The officer’s first report mistakenly 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.
42. Mr X complained the decision goes against Policy 5 and 70 from the Council’s Local Plan. 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.
43. The planning officer identified the separation and window-to-window distances between Mr X’s home and the development fall short of the distances in Policy 70. However, the officer considered this was acceptable because there was mitigation from obscure glazed windows, and the views were not direct. The officer also considered the distances were enough to mean the development would not be overbearing. The officer did not consider the relationship was uncharacteristic of the area, or that it caused enough harm to refuse the application. These are subjective judgements, but I consider the Local Plan allows for this.
44. The planning officer’s report properly assessed the impact on Mr X’s home, but did not find significant harm. That was a professional judgement the planning officer was entitled to make.
45. Mr X also complained the Council ignored the Parish Neighbourhood Plan.
46. 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.
47. Mr X considers the planning officer’s report gave 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.
48. I can appreciate Mr X’s frustration the Council did not answer all the points raised in his complaint. 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

49. 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 updated assessment or in the Council’s decision-making.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman