Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s consideration of and decision on a planning application for a property extension near his house. There is not enough evidence of fault by the Council in how it dealt with the application to warrant an Ombudsman investigation.

The complaint

1. Mr X complains about the development of a property near his home. The planning application sought permission to extend the existing property to the front, and add new windows to the original ‘host’ property.
2. Mr X complains the Council:
1. did not consider an existing covenant for the development land required to build the front extension;
2. did not take account of the loss of trees from the site;
3. failed to properly consider and act to prevent the impact of two new windows on his property’s amenity.
3. Mr X says the two new windows in the original property overlook his main living area and two bedrooms, resulting in loss of privacy. Mr X wants the Council to require the windows to be obscure glazed, or for the planning applicant to shield the windows with a boundary fence in their garden. Alternatively, Mr X wants the Council to compensate him for his loss of privacy, and allow him to plant a barrier to partially restore it.

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The Ombudsman’s role and powers

4. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint documents provided by Mr X;
• viewed relevant online planning documents and maps;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

7. The Council’s role, as the local planning authority, was to decide whether the proposed development was acceptable in planning terms. The covenant relating to the part of the land used by the development for its front extension was not a material planning issue. Any issue related to the covenant was a private one between the parties involved, which did not include the Council. If a dispute had arisen between those parties about the developer’s proposed use of covenant land, that may have prevented the development from being built as permitted. But the Council had no role to play in that issue. The covenant was not a material planning issue, so the Council could not take it into account when deciding whether the development should receive permission. There is not enough evidence that it was fault by the Council to determine the application while the covenant was in place.
8. Mr X says the applicant cleared trees from the site, but that the loss of those trees was not reflected in the planning application. The Council accepts the applicant removed trees from their land, but they were not trees protected by the planning system, such as by a Tree Preservation Order (TPO). The tree’s owner was entitled to remove them from their land, whether or not there had been a subsequent planning application.
9. I note Mr X considers the Council has planning policies which require it to protect the character and amenity of an area. But those would only apply where tree removals form part of a planning application, or were protected by some other form of planning control such as a TPO. That was not the case here, so the Council could not expect the trees’ owner to comply with planning policies which were not engaged. There is not enough evidence the Council had planning powers or policies to exert any control over what the owner chose to do with the trees, or to prevent their owner from removing them. There is also not enough evidence the Council was at fault for considering the planning application in the form it was submitted, without mention of the removal of trees.
10. The new windows in the development property which cause Mr X concern have been added to the original house. They are not part of the extension element of the development. The Council says the applicant could have installed those windows, which now serve a kitchen, without the need for any planning permission. This is because they have been added to the host property, not the extension, and the permission for the original property had no restrictions on the addition of windows. It is correct that the original house had existing ‘permitted development’ rights to install the windows, so the applicant could have added them to the house at any time without any planning permission being required.
11. I recognise the new windows were included as part of the wider planning application. But the Council took the view that, because of the permitted development rights on the original house, the new windows did not give grounds for officers to seek amendments to the planning application, or to refuse it. The Council did not have power as the local planning authority to prevent the house owner installing the two windows in the original house, either as part of the wider planning application, or at any other point since the construction of the original house. There is not enough evidence of fault by the Council in permitting the installation of these windows.
12. The Council considered the addition of the windows to the host property did not materially alter the appearance of the house, so did not require planning permission. That is a judgement officers were entitled to make. The Ombudsman can only criticise a council’s judgement of a matter if there has been fault in its assessment which would have led to a different decision. Officers took appropriate account of the amendments to the host property, as set out in the relevant plans. I recognise Mr X may disagree with the Council’s decision, but there are no grounds for the Ombudsman to go behind it, and it is not fault for a council to properly make a decision with which someone disagrees.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because there is not enough evidence of fault by the Council to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman