The Ombudsman's final decision
Summary: Mr and Mrs X complained about the Council’s decision to grant planning permission to their neighbour. They also complained about its decision not to take enforcement action when they reported a breach of planning control once the works began. There was no fault in how the Council considered these decisions.
The complaint
Mr and Mrs X complain the Council did not properly consider its decision in 2019 to grant planning permission to their neighbour. They say the neighbour then breached planning control in early 2022 when completing the works, and the Council wrongly decided not to take enforcement action about this. Because of this Mr and Mrs X say their amenity has been affected and their property may have reduced in value. They want the Council to provide compensation.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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)
How I considered this complaint
Mr and Mrs X, and the Council, had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Planning policy Councils may grant planning permission for the development of land (including its material change of use), subject to conditions.
The National Planning Policy Framework (NPPF) sets out the government’s planning policies for England and how it expects these to be applied. The NPPF does not change the statutory status of a council’s local development plan as the starting point for decision making. A council should approve planning applications that accord with its local development plan unless material planning considerations show otherwise. Material considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Material considerations do not include things like: impact on views from another property; the impact of the development on property value; and private rights and interests in land.
Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.
The Council’s local plan includes general guidance designed to help homeowners understand what is likely to be acceptable when making an application to extend their property. This says: for two-storey side extensions, a minimum one metre gap should be retained between the side elevation of the extended property and its side boundary. This is to “retain the impression of space to the side of the dwelling”. An extension which results in a detached house being close to the boundary on both sides at two-storey height is “likely to appear unduly cramped and out of character with the area”; for single-storey side extensions, the Council will seek to retain a minimum separation distance of 0.75m to the side boundary; the Council will seek to prevent the loss of gaps between buildings where they are important in defining the visual character of the street; habitable room windows should be avoided in the side elevation of an extension where it faces a neighbouring boundary; and the Council will seek to protect the amenity of neighbouring properties. It is important extensions do not adversely overlook neighbouring gardens or windows. Windows in habitable rooms such as bedrooms and living rooms are given a greater degree of protection than those in non-habitable rooms such as bathrooms and landings.
Planning enforcement policy Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. (National Planning Policy Framework July 2021, paragraph 59) 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. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.
The Council’s policy for planning enforcement says: when someone complains about a breach of planning control, where appropriate the Council will visit the site within ten days to establish whether there has been a breach. The Council will then inform the complainant of what action it will take if any, and how long this is likely to take; and if the Council decides there has been a breach, it does not always have to take action, and will normally not take formal action against a minor breach of control that causes no real harm. It considers “harm” to be things like loss of daylight or privacy but not things like loss of value to a neighbouring property.
My findings
What happened Mr and Mrs X’s neighbour submitted a planning application in 2019 for a two-storey extension on the side facing Mr and Mrs X’s property. The plans proposed to leave a one metre gap between the side elevation of the extension and the boundary with Mr and Mrs X’s property.
Mr and Mrs X commented on the application as follows: They said the extension would be very close to their property and would cut out the light to their landing window. They asked for the roof to be changed to a hip roof to mitigate this and allow more light through.
They noted the plans did not include the existing garage behind their neighbour’s property and asked if this would remain. They said if this was removed there would be nothing in place to mark the border between the two properties.
Because of Mr and Mrs X’s comments, the Council asked the developer to submit amended plans to clarify its proposals for the garage. The amended plans proposed the garage would be removed and a fence installed on the boundary with Mr and Mrs X’s property.
The planning officer considered the final application and wrote a report which included: a description of the proposal and site; details of planning policy and guidance considered relevant; a summary of relevant planning history; Mr and Mrs X’s comments; an appraisal of the main planning considerations, including the principle of the development, its scale and appearance, its impact on Mr and Mrs X’s residential amenity, and its impact on local highways and conservation areas; the officer’s recommendation to approve the application, subject to planning conditions requiring the developer to complete the works within a certain timescale, and in accordance with the approved plans.
The Council issued its decision to approve the application in late 2019. Mr and Mrs X did not complain about this decision at the time.
In early 2022, the works on Mr and Mrs X’s neighbour’s property began. Mr and Mrs X reported a breach of planning control to the Council. They said the extension was being built less than the approved one metre distance from the boundary with their property. The Council visited the site the same day to investigate. It measured the width of the extension and told Mr and Mrs X there was no breach as it was being built in accordance with the approved plans.
Mr and Mrs X discussed the issues with a local Councillor who then asked the Council to explain its decision further. The Council accepted the plans submitted by the developer had potentially wrongly shown a greater distance between the existing side elevation of the main house and the boundary with Mr and Mrs X’s property. This meant the Council’s decision that the width of the approved extension would allow one metre from the boundary could have been based on wrong information. However, it said: there was no breach of planning control because the building works were compliant with the approved plans in terms of the extension width; the one-metre distance mentioned in its local plan documents was guidance and there are cases where it considers deviations from the guidance acceptable; and in this case it did not consider the small discrepancy in distance to cause demonstrable harm that would justify enforcement action.
Mr and Mrs X then complained to the Ombudsman. We told them the Council would need opportunity to respond through its complaints procedure before we could consider their complaint. The Council considered Mr and Mrs X’s complaint and did not change its decision, so they came back to the Ombudsman.
2019 planning application Mr and Mrs X first complained to us in March 2022 so we would normally only be able to investigate events from March 2021 onwards. Mr and Mrs X said once the Council approved the 2019 planning application, they accepted they could not contest it further because the one metre distance had been complied with. They only realised the approved plans may have misrepresented this distance in early 2022 when the works began. I decided this was a good reason to go back further than we normally would and investigate how the Council considered the planning application in 2019.
We are not a planning appeal body. Our role is to review the process by which planning decisions were made. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of planning decision makers where this was not affected by fault. There was no evidence of fault in how the Council considered the planning application because: the planning officer’s report shows the Council took account of the main planning considerations before making its decision. It considered the plans, planning history, relevant policy, impact on neighbouring amenities including privacy, and comments from Mr and Mrs X. This is the decision-making process we would expect. We are not an appeal body for decisions made without fault; the Council considered Mr and Mrs X’s comments and asked the developer to change the plans during the approval process to address their comments about the rear garage. It also specifically considered the impact on their amenity. It noted there was one non-habitable room window on the side elevation of Mr and Mrs X’s property which faced the neighbour’s property. Previously, the neighbour’s side elevation which faced Mr and Mrs X’s property had habitable-room windows at both stories, whereas the proposed works would remove all windows facing Mr and Mrs X. The Council decided any effects on Mr & Mrs X would be acceptable. We cannot question the professional judgment of planning decision makers; and I accept the Council may have based its decision on inaccurate plans. However, there was no evidence any information was available to the Council which should have caused it to doubt the accuracy of the plans at the time it made its decision. We would not find fault with a council for approving planning permission based on plans it did not, and had no reasonable way of knowing, were inaccurate.
2022 planning enforcement As described at paragraphs 12 and 13, planning enforcement is discretionary, and it is up to councils to decide whether they need to take enforcement action.
When Mr and Mrs X reported their concerns, the Council acted in line with its policy to proportionately investigate. It visited the site the same day, considered whether it should take enforcement action and decided there was no breach of planning control. It also said even in cases where it finds a breach of planning control, it would not take enforcement action for a discrepancy of the scale reported by Mr and Mrs X. I am satisfied the Council properly considered its decision about this.
We are not a planning appeal body. Our role is to review the process by which councils make planning decisions. We cannot question the professional judgment of planning decision makers where this was not affected by fault. There was no evidence to suggest there was fault in how the Council made its enforcement decision.
Final decision
I have completed my investigation. There was no fault by the Council.
Investigator's decision on behalf of the Ombudsman