Guidance on remedies

Part 9

Subject specific guidance - Planning


Fault in the planning process can have a significant impact on a complainant’s home life if decisions are not taken properly. We receive complaints from people who live next to development sites as well as people carrying out development who have applied for planning permission or are subject to enforcement action by a planning authority.

Complaints about planning include:

  • Failure to reach a decision on a planning application properly.
  • Failure to take enforcement action against a breach of planning permission, failure to investigate a reported planning breach.
  • Delay, and
  • Flawed planning application advice

When planning applications are determined incorrectly, neighbours often ask for planning permission to be revoked. We will only recommend a council revoke planning permission in very exceptional cases. This is because any injustice can usually be remedied by taking other action at significantly lower cost to the public and planning applicants are generally not responsible for fault by a planning authority.

To determine what injustice has been caused by any fault we identify we will consider what development has been carried out and compare this what development would have been allowed if there had been no fault in the way the planning authority reached its decision. There must be a clear and direct link between the injustice we are remedying, and the fault we have identified. In most cases we will be able to reach a balance of probabilities judgement based on relevant policies and our own experience of dealing with planning complaints.

Corrective action

In the first instance we will usually ask the planning authority to take remedial action. This may include:

  • investigating any alleged planning breach and decide what action to take;
  • taking steps to serve enforcement notices or enforce a planning agreement without further delay;
  • considering whether a statutory nuisance exists and take appropriate action;
  • negotiating an amendment to a permission with the developer to prevent injustice arising for the complainant, for example by including:
    • obscure glazing in overlooking windows;
    • fast-growing or established shrubs or trees in a planting scheme; or a wall, fence or trellis along a boundary

It may also be possible to reduce the impact of any permanent loss of amenity by taking mitigating measures such as:

  • planting hedging or trees in the complainant’s garden to screen the development;
  • erecting an acoustic barrier; or
  • installing double or triple glazing for parts of a house affected by noise.

A complainant may not wish to accept remedial action being taken at their home. In these circumstances we may consider recommending a financial remedy equivalent to the cost of taking remedial action. We will not consider a remedy for loss of amenity or loss of value where remedial action is possible.

Where a loss of amenity is temporary (for example, pending remedial or enforcement action), we normally recommend a payment in the range of £100 to £500 a month, until a permanent solution is found and established. We will take account of the severity of the loss and the circumstances of the complainant.

Quantifiable loss

Where a complainant has suffered financial loss or incurred avoidable expense because of the council’s fault we may recommend the council reimburse the complainant. This could include for example, costs incurred as a direct result of flawed planning application advice.

We cannot investigate complaints where a person has a right of appeal to the Secretary of State. The Planning Inspector deals with appeals about a range of planning decisions made by planning authorities on behalf of the Secretary of State. This means there is only a limited number of circumstances where we would consider a complaint from a person who has applied for planning permission or been the subject to action by a planning authority.

Where a planning authority has given clearly misleading advice before a person submits a planning application, we may consider what impact the advice had on the applicant’s subsequent actions.

Where we believe an applicant may not have proceeded with a planning application or would have submitted different plans we may recommend the council refunds part or all of the fees incurred in making an application.

Professional fees

We provide a free service, and it is not usually necessary to instruct a solicitor or planning consultant to assist in making a complaint to us or challenging a planning authority’s decision.

However, where we consider a complainant had little or no choice but to take professional advice, because of the council’s fault, we may consider reimbursement of professional fees. It would not generally be considered necessary to reimburse fees for both a planning agent and a solicitor about the same matter.

Symbolic payments

Payment to acknowledge loss of amenity

If it is not possible to take remedial action to lessen the effects of a flawed decision, and it is clear that if there had been no fault the planning application would not have been approved in its current form, we may recommend a financial payment to acknowledge any loss of amenity (outlook, privacy, light to main habitable rooms, etc). This is likely to be in a range between £1,000 to £5,000, depending on the severity of the loss and personal circumstances of the complainant. We will only recommend loss of amenity remedies where there is good, clear evidence of a direct causal link between the fault and the loss of amenity.

For example, a lack of screening might cause a moderate loss of amenity at the lower end of the range where there was unacceptable overlooking of one window and the complainant was generally out during the day. However, the loss of amenity would be at the higher end of the range where a lack of screening caused unacceptable overlooking to more than one window, and therefore a significant loss of privacy, to a housebound complainant.

In very rare cases, where the loss of amenity might lead to us recommending an amount that would exceed £5,000, we may ask the council to assess the loss of value to the complainant’s property. In these cases, the loss of amenity is likely to be significant and loss of value can be used as a measure of loss of amenity. These cases should be discussed with our planning forum before any recommendations are made. Assistant Ombudsman approval is also required for before and after recommendations.

A ‘before and after’ valuation may be needed to determine loss of value. We usually recommend this is carried out by the district valuer. It is not based on what the value of the complainant’s property would have been if there had been no development. It is based on what the value would have been if there had been no fault – which may still have led to some development taking place. We will then reach a view on an appropriate remedy taking account of the district valuer’s advice.

Other distress and treatment of uncertainty in planning

We will also consider providing a remedy for frustration and distress arising from the fault but not linked to the loss of amenity.

We will not usually recommend a remedy for uncertainty in planning complaints as we can usually make a finding on what decision a planning authority would have reached if there had been no fault.

Public outrage in planning cases

Sometimes people will complain that, although they are not personally affected by the alleged fault, they have a wider sense of outrage at what is alleged to have happened. These circumstances can appear within planning complaints.

We are not prevented from considering planning complaints where proximity to the actual building is not the prime consideration and there is no direct loss of residential amenity.

However, such investigations are likely to be restricted to cases where the fault complained about is particularly significant, exceptional or unusual and the person or persons complaining have a demonstrable interest in the matter complained of. For example, we may consider complaints about the impact of development on:

  • the countryside or coastline from a person who regularly uses the area for recreation purposes and who lives locally;
  • local wildlife from members of a local wildlife group; and 
  • a historic building or conservation area from a person with a demonstrable interest in historic buildings or building conservation.

Remedies in such cases will generally seek to mitigate the impact caused by any fault rather than compensate an individual for their sense of outrage.

The guidance on jurisdiction also sets out our approach to remedying non-material injustice.

Service Improvement

We will recommend service improvements where we find evidence of a systemic failing that is likely to have affected others.

For example where:

  • a council does not publish adequate information about pre-application advice, we could recommend it review its online content;
  • a council’s practice on giving notice of planning applications is inconsistent, we could recommend it review and update its policies to clarify its approach;
  • a council does not give clear reasons for its decision making, we could recommend it remind staff of our expectations as set out in our Principles of Good Administrative Practice;
  • we find fault in the council’s decision making on a planning application, we could recommend it provide further training and support to staff involved in those decisions, to prevent recurrence of the identified fault; or
  • we found a council delays taking planning enforcement action, we could recommend it remind staff to progress cases in line with its published timescales.

Context - aggravating and mitigating factors

In considering a payment for non-quantifiable losses, such as loss of amenity or distress we will consider the individual circumstances of the complainant.

The injustice may be greater if:

  • The complainant is particularly vulnerable, or;
  • Their human rights are impacted, for example due to loss of privacy.
  • The injustice may be less if the complainant’s own actions contributed to the injustice, for example if they failed to provide information a council needed to progress a matter.

Remedy examples

Householder application
Mr X complained the council failed to take enforcement action against his neighbour’s extension which had been built too high.
We found no fault in how it considered the application but failed to properly consider the impact of changes to the patio height on neighbouring amenity. Had it done so it would have addressed overlooking.
Remedies included the council:
  • apologise.
  • pay an amount for loss of amenity as remedial action was not possible
Householder - enforcement
Mr C complained about the council’s response to his report of breaches of planning control concerning a neighbour’s development.
We found the council significantly delayed dealing with Mr C’s reports of additional windows and mistakes in glazing and this in turn delayed the enforcement action it then took. It also failed to respond to his correspondence or keep him sufficiently updated.
Remedies included:
  • apologise and make a symbolic payment.
  • complete enforcement action
  • carry out an interim review of procedures to ensure reported breaches of planning control are not allowed to drift without action, and regular updates are provided.
Building control
Mr X complained the council completed a building control enforcement investigation without considering important evidence he provided.
We found the council ignored relevant information he provided from CCTV footage and photographs suggesting construction work was underway.
Remedies included:
  • reopen the investigation, evaluating the evidence he provided
Other planning application
Mr J complained the council failed to properly deal with planning conditions about noise and contamination for the house he bought.
We found the council had used an imprecise condition. It failed to ensure it had the right reports about noise, or the required attenuation was in place. It failed to properly deal with alerts about these matters and based its decision to discharge the condition on a brochure from a glazing manufacturer.
Remedies included:
  • review officer actions to discover why the failings occurred, drawing up an action plan.
  • consider training needs for officers about discharge of planning applications.
  • contact other affected residents telling them what actions the council was taking.
  • pay a symbolic financial remedy to Mr J.
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