The Ombudsman's final decision
Summary: Mr X complains about the Council’s handling of a reserved matters application for a development near his property. He says the development has impacted his privacy and overlooks his property. We did not find evidence of fault by the Council causing injustice.
The complaint
The complainant, who I shall refer to here as Mr X, complains the Council failed to notify him of the proposals in a reserved matters application to build a block of flats near his property. More specifically, Mr X complains: the reserved matters application was not subject to the correct publicity and public consultation. He says the neighbourhood notification letters did not provide enough information about the proposed development and the Council failed to consider his objections made in 2015; developer’s used the reserved matters application process so that permission could be pushed through without local residents noticing; and, the Council failed to have due regard to his rights under the Human Rights Act 1998 when granting the permission, namely his Article 8 right to respect for his privacy. He says the Council failed to consider overlooking issues with the development. He says the Council should have considered whether the block of flats could be situated at a further distance from his home.
Mr X says that the three-storey development facing the back of his home has caused him loss of privacy, including to his garden, and affected his ability to enjoy his home and 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 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) 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
I spoke with Mr X about his complaint. I considered all the information and documents Mr X and the Council sent me.
Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Outline Planning Permission Outline planning permission establishes the acceptability of development, leaving the ‘reserved matters’ to be considered at a later stage. Applications may be made with some or all matters reserved until later.
Outline applications cannot be used where a development is already built or for a proposed use of land or a building. Planning authorities may grant outline permission subject to conditions.
Reserved Matters Approval An application for approval of reserved matters is not a planning application and there is no statutory requirement for publicity.
Reserved matters may be any or all of: Appearance – the design and materials for a building or place.
Access – details of how the development is accessed from roads and paths outside the site.
Landscaping – showing how the development site will look, including details of plants and trees to be used.
Layout – plans show where buildings, routes and spaces within the site are laid out in relation to each other as well as areas outside the site.
Scale – information on the size of the development, such as the height width and length of a proposal.
When approving reserved matters applications, planning authorities may impose planning conditions. Grant of a reserved application, together with plans and conditions included in an outline approval, amount to a full permission.
Human Rights Act The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to respect for private and family life. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
Not all rights operate in the same way. For example, the right to respect for private and family life is a qualified right. Qualified rights are where interference may be justified in order to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.
What happened In 2021, Mr X complained to the Council about a three-storey block of flats near his home that was under construction. He said that he had not agreed to the development and it was not part of the original outline planning permission for the development site. He complained the block of flats significantly overlooked his property and created an objectionable view.
A week later, the Council sent Mr X its stage one complaint response. It did not uphold his complaint. The Council said: the original outline planning permission had been varied several times through separate planning applications to vary the conditions. The developers had submitted a valid reserved matters application (RMA) for the block of flats, which the Council approved following a period of consultation.
the Council’s Statement of Community Involvement says that for all planning applications, as well as RMAs, the Council should display at least one site notice and notify neighbouring properties in writing. It confirmed that both forms of notification took place and provided the date the letters were sent.
the Case Office’s report shows, after assessing the application, the proposals were considered acceptable, including in terms of the relationship to existing residential developments. It said the report said the proposals would not have a detrimental impact on future or existing amenity in terms of overlooking, overshadowing or overbearing.
Mr X made further complaints to the Council about the development. The Council replied to confirm the reserved matters application was subject to public consultation. Although it sent Mr X a neighbour notification letter, it said it did not receive any representations from Mr X about the proposals before the Council approved the RMA.
A few weeks later, Mr X asked for his complaint to be escalated. He said: the neighbour notification letter failed to mention that the RMA concerned a block of flats near his garden and was unclear. He said he would begin judicial review proceedings against the Council’s decision. It is my understanding that Mr X later decided not to pursue this; and the development breached his right to private life under Article 8 of the Human Rights Act 1998. He said his garden was overlooked by the flats.
The Council sent Mr X its stage two complaint response. It did not uphold Mr X’s complaint. It said: it had due regard to Mr X’s Article 8 rights and the issue of overlooking when considering the application. It said neighbouring residential amenity, which includes outlook and privacy, was a material planning consideration that it considered. However, the Council had approved the application because the distance between existing properties and the proposed block of flats was in line with local policy.
while it had received representations from Mr X about the original outline planning application several years ago, it was not expected to carry these forward and consider them as part of the RMA. It explained this was because the Council had to carry out a separate consultation for the RMA.
the RMA had been decided by the Council under its delegated powers, which was in line with its Scheme of Delegation at the time.
Mr X requested the Council escalate his complaint.
The following month, the Council sent Mr X its final complaint response. It did not uphold Mr X’s complaint. In its reply, the Council provided the dates neighbour notification letters were sent as well as the dates site notices were first displayed and a notice placed in the local press. It said these forms of notification provided neighbours with the opportunity to submit representations on the proposal. However, it had received no representations from Mr X before the RMA was approved.
At the end of 2021, Mr X asked the Council to send him various information and documents. He complained the Council had failed to sufficiently respond to his complaint.
In April 2022, Mr X complained to the Ombudsman.
Analysis – was there fault by the Council causing injustice?
Publicity Mr X complains the RMA was not subject to the correct publicity and public consultation.
As explained above, there is no statutory requirement for publicity for RMAs. However, the Council’s Statement of Community Involvement says that for all planning applications, including RMAs, the Council should display at least one site notice and notify neighbouring properties in writing.
The Council has provided Mr X on several occasions with the details of when the site notice was in place and neighbour notification letters sent. It also placed a notice in a local newspaper. The Council has provided evidence of the addresses the letters were sent to, which included Mr X’s address. I do not find the Council at fault. The evidence I have seen shows the Council has complied with the requirements in its Statement of Community Involvement.
The Council has explained that it does not hold a photographic record of the site notice. I do not find this administrative error amounts to fault causing Mr X significant personal injustice. The Council has explained its records show the date site notices were placed and the Case Officer has confirmed it was placed. On balance, I find it is likely the site notice was placed. The Council separately sent Mr X a neighbour notification letter, meaning he did not miss out on the opportunity to make representations.
Mr X complains the neighbour notification letters were unclear. I have considered the example letter provided by the Council. This provided details of the deadline for sending comments, a brief description of the RMA and the location. A link to the RMA and how to comment was provided. I find the letter provided sufficient information to allow neighbours to consider the RMA and make representations if they wished to do so. I do not find the Council at fault.
Mr X did not make representations to the Council. Mr X complained to the Council that COVID-19 impacted his ability to comment on the RMA. However, as explained in the Council’s stage three complaint response, the neighbour notification letters were sent much earlier than the national lockdown at the end of March 2020. The RMA decision was made 13 weeks after the statutory consultation and publicity had been carried out. This decision was made before the first national lockdown and the Council confirmed it was operating as usual up until this point.
The Council has also explained to Mr X that there was no legal basis that required it to consider Mr X’s objections to the outline planning application from 2015. I do not find the Council at fault here or that COVID-19 impacted on the consultation or publicity that the Council carried out.
I, therefore, do not uphold part a of the complaint.
Although the Council did not receive any representations from Mr X about the RMA, it has addressed his complaint that the block of flats cause overlooking and have affected his privacy, including in his garden. It has considered his complaint that this meant the Council failed to have due regard to Mr X’s rights under Article 8 of the Human Rights Act (a material planning consideration).
As explained above, Article 8 is a qualified right. This means a public authority may interfere with it if they consider it is in the interest of the wider community or other people’s rights to do so.
In its stage three complaint response, the Council explained that, although no representations were made, the relationship between the then proposed development and Mr X and neighbouring properties – including any potential for overlooking affecting privacy - was considered in the Case Officer’s Report and deemed acceptable. The Case Officer’s report shows neighbouring residential amenity, which includes outlook and privacy and is a material planning consideration, was considered. However, it was decided “there would be no detrimental impact to future or existing amenity in terms of overlooking, overshadowing and overbearing”.
The Council explained, in response to our questions, that the Essex Design Guide (2005), which has been adopted by the Council as Supplementary Planning Guidance, contains specific provisions around separation distances, privacy and outlook. The Essex Design Guide states that “Upper storey flats can cause problems of overlooking from living rooms, and therefore any rear-facing upper storey living room should be no closer than 35 metres to the rear of any other dwelling”. The rear of any other ‘dwelling’, is the rear of the property as opposed to the rear boundary (such as a garden fence or wall).
The Council further explained that: the separation distance between the closest upper storey living rooms in the three-story block of flats and the closest point of Mr X’s property is 36 metres, which is in line with the Essex Design Guide; and Mr X’s rear boundary fence is located approximately 25 metres from the front elevation of the development. It said this is in line with the Essex Design Guide, which states that “the rear of new houses may not encroach any closer than 15 metres to an existing rear boundary”.
I am satisfied the Council has considered any potential impact on privacy and overlooking when assessing the RMA, including in relation to Mr X’s property. In my view, based on the previous paragraphs, if Mr X had made representations to the Council, it is unlikely that this would have led to a different outcome. I, therefore, do not find fault in the Council’s decision-making (part c of the complaint).
Without evidence of fault in how the Council reached its decision, I cannot question its content. I understand that Mr X disagrees with the Council’s decision, but this is not evidence of fault.
The Council carried out a site visit around the same time neighbour notification letters were sent to inform its assessment of any impact on residential amenity. Mr X requested a further site visit. However, the Council told Mr X that there would be no benefit carrying out a further site visit as it had not found fault in its handling of the RMA. I do not find the Council at fault. It has appropriately responded to Mr X’s request and provided clear reasons for its refusal.
Use of the reserved matters application process by the developer Mr X complains the developer’s used the RMA process so that permission could be pushed through without local residents noticing.
The previous section explain why I have not found the Council at fault in terms of how it publicised the proposals in the RMA.
Additionally, I find the Council correctly explained to Mr X in its stage three complaint response that, while the developer could have submitted a full planning application, it was open to the developer to make a RMA about reserved matters following the granting of outline permission. The Council assessed the RMA and accepted it as a valid application. In any case, the Council said that even if a full planning application had been sent, this would not have led to greater publicity or public consultation than that which had taken place for the RMA. I do not find the Council at fault (part b of the complaint).
Complaint handling At the end of 2021, after the Council sent Mr X its final complaint response, Mr X told the Council he was unhappy with its response and asked it to provide further information and documents. I understand that Mr X is unhappy that the Council refused to provide a further formal complaint response.
I have considered the relevant correspondence alongside the Council’s formal complaint responses.
I find the Council’s complaint responses are clear and comprehensive. They clearly explain the Council’s position and address Mr X’s comments. I do not find the Council failed to appropriately respond to Mr X’s complaint.
We expect councils to signpost the Ombudsman at the end of the complaint process. The Ombudsman is the appropriate final review body for complaints like Mr X’s. The Council provided these details in its stage three complaint response and appropriately explained the complaints process had been exhausted. I do not find the Council at fault here as it has ensured Mr X’s expectations were not raised by engaging in contact outside the complaints process and this avoided putting him through a prolonged complaints process.
I understand that Mr X’s letter from the end of 2021 was misplaced by the Council. However, I do not find this administrative error caused Mr X significant injustice. The Council has apologised for misplacing his letter and had already appropriately responded to Mr X’s complaint. A few weeks after Mr X’s letter was located, the Council sent Mr X a further letter with comprehensive details on the information and documents Mr X had requested.
Final decision
I have completed my investigation.
I have decided not to uphold Mr X’s complaint. This is because I have not seen any evidence of fault by the Council causing injustice.
Investigator's decision on behalf of the Ombudsman