The Ombudsman's final decision
Summary: Mr X complained about the Council’s decision to grant planning permission for his neighbour’s extension, which he said had an adverse impact on his privacy. We found no fault in how the Council processed and approved the application.
The complaint
Mr X complains about how the Council dealt with his neighbour’s planning application. Specifically, he complains the Council: did not notify him of the variation to the original application; failed to properly consider the negative impact on his amenity, especially his loss of privacy; failed to take into account the proposed extension would be used for non-residential purposes; unfairly relied on landscaping proposals to justify its position on loss of privacy; and accepted the application as a variation when the scale of the proposals should have been treated as a fresh planning application.
Mr X says the development will significantly impact the residential amenity of his home.
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 how the organisation made its decision, 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 read the documents provided by Mr X and I discussed the complaint with him on the telephone. I read the documents the Council provided in response to my enquiries.
Mr 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 requirements The law says councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate otherwise. 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, views from a property or a reduction in its value. Material considerations include issues such as overlooking, traffic generation and noise.
It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application. A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission.
The courts have made it clear that case officer reports: do not need to include every possible planning consideration, but just the principal controversial issues; do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
Councils will grant permission where they consider proposals are in line with relevant planning policies and they find no planning reasons of sufficient weight to justify refusal.
Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a councils “Statement of Community Involvement”. In all cases the application must be published on the council’s website.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Variation of planning permission (section 73) Sometimes developers want to change their proposals after the grant of planning permission. A fundamental change will need a new planning application. However, section 73 of the Town and Country Planning Act 1990, as amended, provides for changes to a planning permission. Section 73 applications seek permission to develop land without complying with conditions on an existing planning permission. Such applications may be called ‘minor material amendments’ to a permission. However, the courts pointed out that section 73 does not include the phrase ‘minor material’. And, in July 2023, the Government’s Planning Practice Guidance (PPG) removed references to the word ‘minor’.
Councils must publicise applications made under section 73 so people may comment on proposed changes. If councils approve applications to remove or vary existing conditions, they will issue a further planning permission. The new planning permission will have its own conditions that differ from those on the original permission.
The Council’s Statement of Community Involvement The Council says it will post a site notice of a planning application on or near the development site.
Planning enforcement 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.
What happened What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
In 2020, Mr X’s neighbour (Mr B) made a planning application to extend his property. This was approved by the Council.
In 2023, Mr B made an application to vary the 2020 planning permission. This increased the size of the development. Mr X says he was unaware of this until after the Council approved the variation. Upon reading the case officer’s report that supported the scheme, he felt the Council should not have approved the application.
Mr X had several concerns about the development. He said: it was significantly larger than the original footprint; it was too close to the boundary with Mr X’s property; his property and garden would be overlooked; existing vegetation that protected X’s privacy had been removed; and the plans included a room adjacent to his boundary labelled as clinic. This had a separate entrance and Mr X was concerned this would be used for business purposes. This was not referred to in the case officer’s report.
Overall, Mr X felt the changes to what had previously been approved warranted a new planning application, as opposed to being treated as a variation. Mr X complained to the Council. During the complaints process Mr X became concerned Mr B was not following the plans, including a roof that was extending too close to Mr X’s property.
In response to Mr X’s complaint and the Ombudsman’s enquiries, the Council said: the case officer visited the site and was satisfied that although there would be some degree of overlooking, it was not at a level that could justify the refusal of the application. The Council had properly considered Mr X’s residential amenity; there was no obligation to personally notify Mr X of the application; it had considered recent caselaw when deciding the application could be treated as a variation; there was no need to reference the clinic within the report as no change of use had been requested by Mr B. The Council was satisfied the clinic was incidental to the use of the property as the main dwelling; existing vegetation was not protected and could be removed at any time, regardless of the new development; and if the development was not being built in accordance with eth approved plans, this could be the subject of enforcement action.
Dissatisfied with this response, Mr X brought his complaint to the Ombudsman.
My assessment
We are not a planning appeal body and do not comment on differing views about the planning merits of applications and developments. Our role is to consider if there is evidence of fault in how councils reached their planning decisions. Without evidence of fault, we cannot question council planning decisions (see paragraph 3).
In this case, I am satisfied there was no fault with the how the Council made its decision to approve the application. I will comment on Mr X’s specific areas of complaint below.
Failure to notify Mr X did not object to the new application because he was not aware of it. He says he should have received a letter about it. While I understand Mr X’s frustration, I cannot criticise the Council because it complied with the legal requirements. I have seen a copy of the site notice positioned in what appears to be a prominent position at the entrance to Mr B’s property. This complied with the law. The Council was not at fault.
Loss of privacy Mr X is concerned the Council has changed its position on this issue because of his complaint. He strongly disputes the content of the case officer’s report on this issue. The report stated: no neighbours “will suffer any significant loss of residential amenity”; there is no overlooking into the garden or into rooms of affected neighbours; and neighbours are well spaced with good screening, none of which is anticipated to be lost.
Having considered all the evidence, while I acknowledge the case officer’s report was relatively brief, the Council followed the correct process in reaching its decision. It carried out a site visit and was aware of the potential for a loss of Mr X’s privacy. I would not expect the case officer to have made specific enquiries of Mr B about whether he intended to remove existing screening because it had no legal protection and could be removed at any time.
In later correspondence, the Council clarified its position, by saying there was a degree of overlooking but it was not to such a degree that would justify refusing the application. The law is clear that there is a presumption in favour of development and in this case, having carried out a site visit (both during the application process and as a result of Mr X’s complaint) the Council was satisfied there were no grounds to refuse the application.
I appreciate Mr X does not agree with the Council’s assessment, but it is not the role of the Ombudsman to comment whether this judgement was correct or not.
The clinic Nor do I criticise the Council’s position on the clinic. As there was no application to change the use of the premises, there was no requirement to consider the potential use of this room in the way Mr X expected, or refer to it in the case officer’s report.
The Council has told Mr X that if, in future, he has evidence the clinic is being used for a purpose that is not “incidental to the use of the dwellinghouse”, this should be reported to the Council as a planning enforcement issue.
Landscaping The Council disputes Mr X’s claim that it has sought to rely on a landscaping condition to address the fact it did not properly consider his loss of privacy.
In response to my enquiry about this, the Council has pointed out the purpose of the condition was in the interest of the local amenity, as opposed to providing screening between the two properties.
Having reviewed the case records, I can see the Council has referred to screening (by both fences and planting) in its complaint responses to Mr X about the issue of privacy. The link between Mr X’s privacy and potential screening is an obvious one. However, I do not criticise the Council for doing so, or draw same the conclusion of Mr X. Instead, I see it as constructive way of reassuring Mr X that Mr B had taken voluntary action to address the privacy issues.
Incorrect type of application The Council has explained why is accepted the application as a variation to the 2020 permission. The Council assessed the proposals and decided it was within the scope to be considered as a variation. This was confirmed in the case officer’s report because the parish council had raised the issue.
From an administrative viewpoint, the evidence showed the Council was aware of the issue and considered it. That was the correct course of action for the Council to take. And, having considered the issue, it was for the Council to decide whether to accept a section 73 application that would increase size of the development.
I found no fault and so have no grounds to question the Council’s decision, which was to accept the variation.
Final decision
I have not found the Council to be at fault. On this basis, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman