The Ombudsman's final decision
Summary: Mrs X complained about the Council’s actions linked to her neighbour’s planning application. We found fault because the Council failed to notify her of the planning application as it should have done. The Council has already apologised for this and explained her objections to the plans would not have changed its decision. I am satisfied this apology remedies the injustice caused to Mrs X.
The complaint
Mrs X complains the Council failed to notify her of a planning application made by her immediate neighbour.
Mrs X says this meant she lost the opportunity to comment on and object to the plans. She also says plans were approved without proper consideration of the impact on her and the loss of privacy this would create for the rear of her property.
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) 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 have considered all the information Mrs X provided and discussed this complaint with her. I considered documents from the Council’s planning files, including the plans themselves. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.
What I found
All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
Government statements of planning policy are material considerations.
Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded upon valid material planning reasons.
General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.
Case officer reports & giving reasons for decisions The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed.
Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
‘Tick-box’ or questionnaire style case officer reports Councils sometimes use form style questionnaires that invite ‘yes/no’ or ‘tick-box’ responses.
What happened I have set out below a summary of the key events. This is not meant to show everything that happened.
At the end of February 2023, Mrs X emailed the Council to ask when it had notified her of a planning application her immediate neighbour had made. Mrs X was unaware that her neighbour would be installing a window in an elevation of their house which overlooked the side of her house and a yard at the rear of her property.
At the beginning of March 2023, the Council responded to Mrs X and apologised that it had not sent her a neighbour notification letter as it had to neighbours on the other sides of the property where permission was being applied for. It advised the application would still have been assessed at the time to consider any problems related to overlooking, before permission was granted.
Unhappy with this response, Mrs X complained to the Council a few days later. Mrs X listed various concerns she had about the window that had been installed and how the application had been assessed by the Council. Mrs X said the window affected her ability to enjoy the use of her back yard area.
In mid-April 2023, the Council sent its stage one complaint response to Mrs X. The Council repeated its apology that it had not notified her of the application and committed to reminding relevant officers of their statutory duties, in cases like this, to notify neighbours or place site notices nearby.
The Council also advised that even if Mrs X had objected at the time the application was being processed, it considered there would not have been sufficient reason to refuse the application. It said that when considering overlooking or privacy issues, the decision to approve had been correct. The Council upheld Mrs X’s complaint about not being notified but not that the application had been approved.
At the beginning of May 2023, Mrs X escalated her complaint to stage two of the Council’s process. Amongst other things, she remained concerned that the window being placed where it was would lead to a future application from her neighbour to change the window for a Juliet balcony. She wanted the Council to issue a declaration that the window did overlook her property to avoid any such future applications being approved.
Later in May 2023, the Council sent its stage two response to Mrs X. It advised it was unable to issue any form of declaration and any future planning application would be considered under its own merits. The Council answered Mrs X’s other points including which policies were considered when assessing the application.
Mrs X brought her complaint to the Ombudsman after being signposted to us by the Council.
Analysis Notification The Council has confirmed that it did not send Mrs X a neighbour notification letter when it should have done. This was fault. The Council has confirmed that even if Mrs X had been given the opportunity to object, the grounds on which she would have done so would not have changed the decision to approve the planning application. On this basis and as the Council has already apologised, I am satisfied that in the circumstances of this complaint, the injustice to Mrs X has already been remedied. I therefore make no recommendation in relation to this.
Decision to approve As part of my enquiries to the Council, I asked it to explain its rationale for saying that it would have approved the plans even if Mrs X had the opportunity to object and also what the officer’s original decision-making process was.
The Council responded to advise that its normal report template for this type of decision included standard questions with ‘yes/no/not applicable’ boxes to be answered. The Council said that the questions are therefore considered but the thought process behind them is not recorded. The Council also confirmed the officer who made the decision no longer works for it, so could not be consulted.
Instead, the Council asked one of its senior planning officers to assess the application as if she was the original officer, so it could see what the outcome would be. The Council confirmed that if Mrs X had objected then this would have been recorded in the relevant section of the report.
The Council sent me details of the officer’s considerations. These explained that taking into account various things such as the height of the new window, its distance from the boundary between the properties, an existing tree, planting and a driveway, the officer would not have refused the application due to overlooking of any private amenity space (the yard) at Mrs X’s property.
The officer was also satisfied that when considering relevant parts of the Council’s local plan and the nature of the site and window, it would not cause any loss of privacy that meant the proposal would not be in line with the requirements of the policy.
The Ombudsman is not an appeal body. This means our role is not to consider whether a planning application should have been approved or not. Rather, we consider whether the Council decided on the application properly, having regard for the key factors and policies which are relevant.
If we consider the Council followed processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
On this basis, I am satisfied the Council has demonstrated the original decision to approve the application would not have changed even if Mrs X had been given the opportunity to object as she should. I am also satisfied it has demonstrated it sufficiently considered relevant facts and policies when making and reviewing the decision to grant permission to Mrs X’s neighbour. I therefore find no fault in the actions of the Council here.
Final decision
I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman