Summary: Mrs X complained the Council did not ensure the minimum separation distances in its planning guidance were met when it decided a planning application for a development near her home. She also complained about the Council’s handling of her complaint about the same matter. We do not find fault by the Council in its handling of the application. We did find fault in how it considered her complaint. The Council agreed to apologise to Mrs X.

The complaint

1. Mrs X complained the Council failed to ensure the minimum separation distances were met when it decided a planning application for a development near her home. She also complained it did not fully answer her complaints about this matter.
2. Mrs X stated the Council’s failure to ensure the minimum separation distances were met has negatively impacted the amenity of her home and put her to the avoidable time and trouble of pursuing a complaint.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), as amended)

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How I considered this complaint

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

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What I found

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. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
• Government statements of planning policy.

10. Planning considerations do not include things like:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

Deciding planning applications

11. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
12. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Sefton Metropolitan Borough Council supplementary planning document (SPD) for new homes

13. This policy explains how the Council will deal with planning applications for new build homes and developments. It sets out the factors the Council will consider when deciding if an application is acceptable or not. In some cases there may be reasons that allow for a departure from the factors set out in the guidance.
14. The policy explains that applications should provide the following minimum distances between two habitable room windows not fronting onto a road footpath:
• 12 metres between two ground floor windows; and
• 21 metres between all other habitable room windows.

What happened

15. Mrs X’s home is a house with a two-storey rear extension and a single storey side and rear extension.
16. Several years ago the Council granted planning permission for a new residential housing development at a site to the rear of Mrs X’s home. The case officer report for the application said the development was considered to meet the guidelines set out in its New Homes SPD. It also said the development was not expected to have an unacceptable impact on the amenity of existing neighbouring properties.
17. Subsequently the Council approved a planning application to increase the number of dwellings at the site. The case officer report said the new dwellings would meet the separation distances set out in its New Homes SPD. It said the new dwellings would not unacceptably impact existing neighbours including those living in the same road as Mrs X.
18. Once construction works began on the plots nearest her home, Mrs X raised concerns the minimum distances in the SPD were not being adhered to.
19. Mrs X made a complaint to the Council about the planning application. She complained:
• the distance between her home and the plots nearest her home do not meet the minimum distance set out in its SPD.
• planning officers did not visit her home to check the distance between her home and the nearest plots.
• the impact on the privacy and outlook of her home was not considered when it decided applications for the development.
• the Council should have asked the applicant to put single storey homes on the plots nearest her home.
20. The Council’s reply said:
• a site visit has confirmed the homes on the plots nearest Mrs X’s home are being built in accordance with the approved plans.
• it has used site plans and OS plans to find the position of Mrs X’s home and to calculate the distance between it and the homes on the nearest plots.
• the distance between Mrs X’s home and the properties on the nearest plots meet the minimum distance set out in its new Homes SPD and so, there were no grounds to propose only single storey dwellings be built near Mrs X’s home.
• it considered the impact on the amenity of existing homes adjoining or facing the application site when it considered applications for the development.
21. Mrs X escalated her complaint to the second stage of the Council’s complaints procedure. Her grounds of complaint remained the same. In her escalated complaint she asked why the Council’s stage one reply did not clarify the distance between her home and the homes on the nearest plots.
22. The Council replied. It said:
• its enforcement team have visited the site and found the homes on the plots nearest to Mrs X’s home are being built as shown on the approved plans.
• the privacy and outlook of her home were considered when it decided applications for the site.
23. Unhappy Mrs X complained to the Ombudsman. Her grounds of complaint remained unchanged.
24. We made enquires of the Council. It told us:
• officers visited Mrs X’s home to measure the distance between her home and the homes on the nearest plots.
• officers identified the new dwellings have been built in the positions shown on the approved plans. However the approved plans did not correctly show the two-storey rear extension to Mrs X’s home. On the approved plans the extension is shown projecting 2.14 metres when it projects 2.5 metres.
• the case officer for the application did not consider the separation distances between Mrs X’s home and the plots nearest home to cause unacceptable harm to her amenity. Furthermore it does not consider the deficit of 1m between the minimum separation distance in its New Homes SPD and the actual distance between Mrs X’s home and the closest plot, causes unacceptable harm to the amenity of her home.

Finding

25. We are not a planning body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
26. The case officer report for the application considered the impact on Mrs X’s home and so I am satisfied the Council had regard to the relevant material planning considerations when deciding the application.
27. The plans provided by the applicant incorrectly depicted the extension to Mrs X’s home. Applicants are responsible for providing accurate plans and there is no statutory or common law duty on the Council to verify the accuracy of the submitted plans.
28. The extension to Mrs X’s home projects 2.5 meters but the approved plan shows it projecting 2.14 meters. This is a relatively minor discrepancy and as such, I do not consider the error on the plans would have been obvious.
29. I have considered whether the application would have been approved if the relationship between Mrs X’s home and nearest plots was fully understood when the Council decided the application. I consider that, on the balance of probabilities the outcome would not have been different. This is because the departure from the minimum distances in the SPD is minimal.
30. Furthermore the New Homes SPD is guidance and so the distances in it are not requirements which must be met. The SPD recognises there may be developments which do not meet the minimum separation distances and details the circumstances where such applications may be approved.
31. I note Mrs X would have liked single storey homes to have been built on the plots nearest her home. For the same reasons as set out in paragraph 30, I do not consider identifying the error in the site plan would have resulted in single storey homes being built on the plots nearest her home.
32. Mrs X has explained that she would like the planning permission for the plots nearest her home to be revoked. We do not find fault with the Council’s handling of this planning application and so there are no grounds to recommend the planning permission be revoked.
33. Mrs X queried why the Council did not specify the distance between her home and the homes on the plots nearest her home, when it replied to her complaints. I consider it should have done so to fully address Mrs X’s concerns. It’s failure to do so caused Mrs X uncertainty that her concerns were properly investigated and put her to the avoidable time and trouble of escalating her complaint. This is injustice.

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Agreed Action

34. Within one month of my final decision the Council will apologise to Mrs X for the fault identified in paragraph 33. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I do not find fault with the Council’s handling of a planning application for a development near Mrs X’s home. I do find fault with its handling of her complaint The Council has agreed to apologise to Mrs X for the injustice caused to her.

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Investigator's decision on behalf of the Ombudsman