The Ombudsman's final decision
Summary: Mr X complained about the Council’s failure to control a development near his home that affects his privacy. We ended our investigation because planning enforcement action is ongoing, and we cannot know what the development will be like when the process does finish. Because of this, we cannot determine whether any alleged fault causes a significant injustice to Mr X.
The complaint
Mr X complained about the Council’s failure to control a development on his neighbour’s land. Mr X said the development affects privacy in his home and his garden.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: we cannot determine there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6)) We do not investigate all complaints that come to us. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I read the complaint and discussed it with Mr 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.
I gave Mr X and the Council an opportunity to comment on a draft of this decision and considered the comments I received before making a final decision.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
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.
Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about: delay by an authority in deciding an application for planning permission; a decision to refuse planning permission; conditions placed on planning permission; or a planning enforcement notice.
We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
Background
Mr X’s home is on land that rises away from the rear of his house. He does not live directly next to the development site he complains about.
His neighbour has carried out development, which includes a rear dormer that opens onto a flat roof, on which is an area of decking. Mr X said his privacy is affected by use of the decking, and from the dormer windows. The dormer includes glazed side windows, which have only recently been obscured.
In recent months, the developer has separated the dormer from the decking area.
A Planning Enforcement Officer (PEO) has given me an update on progress with the case. The PEO told me: He has visited the site and looked at the dormer. In his view, it is likely to comply with permitted development regulations. At the moment, the Council is considering legal issues relating to the regulations.
The decking area is unlawful and should either be removed, or an application submitted. The PEO added that, if the Council did receive an application for retention of the decking, it would have to take account of the planning history of the site. This included a Planning Inspector’s comment that the decking area might be acceptable if adequately screened to protect the neighbour’s privacy.
The Council has paused its plans to serve an Enforcement Notice. This is to allow more time to consider legal issues, and to allow the developer to regularise the development and make it acceptable in planning terms.
My findings
We are not a planning appeal 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.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I should not investigate this complaint further because the planning enforcement process is ongoing. Until the enforcement process has finished and the time limits for appeal rights have passed, we cannot fully assess what has happened. It may be that decisions are made that affect how the development affects its surroundings, and decisions could be made by the Council, the Planning Inspectorate, the Magistrates or the High Court.
After the planning process has run its course, Mr X may come back to us if he feels he has been caused a significant injustice by fault in the Council’s decision making process.
Final decision
I ended my investigation, because the planning enforcement process is ongoing, and so we cannot determine whether any possible fault is likely to have caused a significant injustice.
Investigator's decision on behalf of the Ombudsman