The Ombudsman's final decision
Summary: X complained about developments the Council approved that are near X’s home. X said the developments will devalue X’s property. We did not investigate the complaint further as we were unlikely to find fault, evidence of significant injustice, recommend a remedy or any other meaningful outcome.
The complaint
The person that complained to us will be referred to as X.
X complained about developments approved by the Council near to X’s home.
X said the developments will affect the value of their property.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 continue an investigation if we decide: 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, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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 X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer reports.
I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.
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 over another’s land; the impact of development on property value; and private rights and interests in land.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Not all planning decisions are made by Council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a Council’s constitution.
Regulations set out the minimum requirements for how councils publicise planning applications.
For major development applications, councils must publicise the application by: a local newspaper advertisement; and either a site notice; or serving notice on adjoining owners or occupiers.
For all other applications, including minor developments, councils must publicise by either: a site notice; or serving notice on adjoining owners or occupiers.
As well as meeting regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions.
Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer reports are 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.
However, 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.
What happened
Background
X complained about two developments, one on land next to X’s home and one opposite it. The development opposite X was approved several years ago, and the development next to X was approved more recently.
Development next to X X complained: the Council took no account of an increase in land level of a strip of land near the rear building line of the neighbour’s house; pressure was put on a councillor to stop them intervening and asking for the application to be brought to the planning committee; the application was inaccurate because part of the building that was demolished was not an extension, but part of the original building; the planning case officer refused to take a photograph of evidence that an original part of the building, not an extension, was to be demolished; changes to plans were made after comments from residents were received, but the Council did not provide any further opportunity to residents to comment; a condition requiring boundary fencing in accordance with plans has not been satisfied, and so the situation is in flux.
X would like the Council to provide a copy of all documents including correspondence with councillors.
The strip of land serves of a light well for windows to ground floor rooms at the rear of the neighbour’s house. The light well is 1 metre wide and 1 metre deep, and it extends for about 5 metres along the rear of the neighbour’s house. The application included a 400mm high raised platform patio area, which extends across the light well, so the total height increase here is 1.4 metres.
X said the problem is made worse because the neighbour has removed a high boundary wall, so no people using the patio have views over the rear of X’s home and garden.
X also said a Council member was told not to communicate with X, even though the councillor had acknowledged there had been problems. X said they believed planning officers put undue pressure on a councillor to dissuade them from requesting the application was considered by planning committee.
X said the councillor did not feel able to challenge planning officers. X would like the Ombudsman to review all documents to check for evidence of undue influence.
Development opposite X X said the way the Council dealt with this earlier application shows a pattern of behaviour, the effect of which is to disenfranchise the public. X said for this application too, there was: an inaccurate description of the development and misleading information from the applicant; and there was no site notice, so most residents were not aware of the application , but if they had had an opportunity to comment on the proposal, the outcome might have been different.
Case officer reports for the applications I read the case officer reports for both applications, and they show that before the decisions were made, the Council considered: a description of the proposal and site; a summary of planning history considered relevant; planning policy and guidance considered relevant; an appraisal of the main planning considerations, including visual amenity, the principle of development and the impact on residential amenity; and the officer’s recommendations to approve the applications, subject to planning conditions.
The most recent approval for development next to X’s home included a condition requiring 1.8 metre fences to be retained or constructed on the shared boundary.
Council’s response to complaint The Council responded to X’s complaint, and said: because the applications were householder applications, it did not put up site notices. The Council referred to its SCI, which states householder applications are only publicised by neighbour notification letter; following information from X and a councillor about incorrect descriptions and misleading application information, a planning officer met with the agent and a revised scheme was submitted. The purpose of the meeting was to address X’s concerns, and X was free to make further comments up to the point the application was decided; the case officer denied they had refused to take the photos X had requested during the site visit; the Council did not know and could not comment on why the councillor decided they did not want to talk to X; there was a separate process relating to access to information, and the Council would contact X separately about this.
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.
I should not investigate this complaint further, and my reasons are as follows: I have examined the plans for both applications and saw no evidence of a significant injustice caused to X by either development. Because of this, even if I was to find fault, I am unlikely to be able to recommend a remedy for X.
I checked how the decisions were made, and before granting approval the Council took account of application plans, planning policy and guidance, planning history and comments from X. This is the decision-making process we expect and further investigation is unlikely to result in a finding of fault.
It is the responsibility of the planning applicant to ensure information they provide is accurate. If councils are dissatisfied with the information provided by an applicant, they can ask for corrections or clarification. It is up to the Council to decide whether it has enough information to make its decision.
X complained there were no site notices, but the Council was not obliged under its policy or regulation to provide them. X shares a boundary with only one of the applications, and I can see they sent several letters with their comments and that these were considered before a decision was made.
If there is a breach of planning control relating to the fence and, as X suggests, an ongoing enforcement investigation, we would not investigate it now. Before the planning process has run its course, there could be further action which would open up rights of appeal or additional planning applications. We do not investigate enforcement issues until the planning process including avenues of appeal has ended. Any complaint about that process should be put to the Council before it is considered by the Ombudsman.
X has made allegations about what was said during conversations with officers and members. Because I have found no evidence of significant injustice, I should not investigate these allegations further. X has suggested I request copies of all correspondence, including that which is between a councillor and planning officers. I do not need this information for my decision, and there is another body, the Information Commissioner’s Office, that deals with complaints about access to information. Details of the OIC can be found here https://ico.org.uk/ .
Final decision
I have ended my investigation as it was unlikely to result in a finding of fault, a significant injustice we could remedy or any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman