Summary: Mr X complains the Council failed to properly consider a planning application for a development next to his home. The Ombudsman has found no fault in the way it reached its decision to grant planning permission.

The complaint

1. The complainant, Mr X, complains the Council failed to:

• Properly consider a planning application to demolish a garage block to the rear of his property and replace it with a row of houses.
• Properly consider the likely impact on Mr X’s amenity.
• Properly consider the wider impact of the development.
• Provide a suitable replacement for his garage.
• Properly consider the legal ownership of land issue that he raised.

2. Mr X says because of the Council’s fault, the Planning Committee made the wrong decision and if the development goes ahead he will suffer a loss of privacy, sunlight and general amenity.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. If we are satisfied with a council’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)

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How I considered this complaint

6. I discussed the complaint with Mr X and considered the written information he provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint. This draft was sent to both parties for comment before I reached my final decision.

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What I found

Planning law and guidance

7. Development of land (including its material change of use) needs planning permission).
8. Councils may grant planning permission subject to conditions on the development and use of land.
9. Councils must decide planning applications in accordance with the development plan, unless material considerations indicate otherwise.
10. Material considerations concern the use and development of land in the public interest, and not 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.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
12. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
13. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.

What happened

14. In 2019, the Council’s Housing Department made a planning application for a housing development on a piece of land at the rear of Mr X’s property. This would involve the demolition of 14 garages some of which were still in use, one by Mr X. They would be replaced with four, two-storey, semi-detached houses.
15. As his property adjoined the proposed development site, Mr X was notified by letter of the application and given an opportunity to comment. Mr X and two other neighbours objected about a number of issues including privacy, sunlight, trees and parking.
16. The case officer’s report about the application set out the proposal and the relationship to nearby residential properties. It summarised the representations received about the application including those made by Mr X and explained the Council’s position in relation to each point.
17. Following the publication of the case officer’s report, Mr X submitted further objections about the accuracy of the site plan, trees on the site and potential impact on endangered species.
18. The Council prepared an addendum report dealing with these issues.
19. Both the case report and addendum report were considered by the Council’s Planning Committee. The Committee approved the application subject to certain conditions.
20. Mr X complained about this decision. His complaint was not upheld so he complained to the Ombudsman.
21. I have summarised the areas of complaint and the Council’s response to these below:

Failure to properly consider overlooking and loss of privacy to Mr X’s property

22. In making his recommendation, the care officer had taken into consideration both the Local Development Plan and the relevant Supplementary Planning Documents.
23. The Council acknowledged the distance between the front elevation of the proposed development was less than 20 metres from the rear building line of Mr X’s property. However, this measure of acceptable separation, is not a significant determinant where it is a front to rear relationship.
24. The Council’s Planning Committee had the benefit of sunlight study that had shown there would be no unacceptable loss of light to Mr X’s property. Mr X’s complaint that it had failed use the “45 degree rule” was unfounded because it was not relevant to the issue of overlooking.
25. The case officer’s report considered the issue of overlooking and privacy and was satisfied that the distance between the properties, together with appropriate boundary treatment and obscured glass led to his view that there would be no adverse impact on neighbour’s amenity.

Failure to consult English Nature

26. Mr X had raised a concern about the possible presence of Great Crested Newts due the site’s proximity to the River Wandle. In response, the Council had said its Senior Biodiversity Officer had not requested a survey and had advised the Council (specifically in response to Mr X’s objection) that there were no known records for Great Crested Newts in the locality and so, in the absence of a reasonable likelihood of their presence, there was no requirement to carry out a survey.

Failure to address construction traffic concerns

27. The Council was satisfied that as emergency and refuse vehicles were able to access roads around the development site and no concerns had been raised by the Council’s Highways Team when consulted about the application, this was not a basis for refusal. However, an assessment of construction traffic would be required prior to any commencement of works.

Failure to consider interference with TV reception

28. Mr X did not raise this as an objection so was not considered by the case officer or Planning Committee. However, in its complaint response, the Council accepted while this was a material planning condition, the height of the development meant reception would be unlikely to be affected.

Failure to address property ownership issue raised by Mr X

29. In July 2019, Mr X had told the Council he owned a strip of the development site, and so challenged the Council’s legal right to build on it. It also affected his right of access to the rear of his garden.
30. In response, the Council took legal advice, and was satisfied the land was in its possession.

Impact on parking

31. In its stage two complaint response, the Council accepted it had made a mistake when it had previously said Mr X did not have use of one of the garages. It apologised for this error. However, as it was used for storage rather than parking, it did not compromise the information that had been considered by the Planning Committee. The Council was satisfied there was no unacceptable degree of displacement parking.

Unsuitability of replacement garages

32. Mr X’s garage lease was subject to a one week termination period applicable to both parties.
33. Mr X was offered a lease on an alternative garage half a mile from his home. Mr X said this was too far. The Council considered this to be an acceptable compromise to the loss of his garage.

Analysis – has there been fault leading to injustice?

34. My role is to examine how the Council considered the planning application. It is not to take a view on the merits of the application or the case officer’s professional judgement. If there has been fault, I must consider if that has resulted in a different decision and if it has, consider a remedy.
35. Neighbours may express a view and the Council must consider any comments. The Council must consider the material planning considerations raised. The Council must decide if the objections show it should refuse the application or impose planning conditions to make it acceptable.
36. I do not consider the Council was at fault in the way it dealt with planning application to develop land to the rear of Mr X’s property. I say this because:

• The case officer, in his report, clearly took account of the representations that had been made about the application including those made by Mr X about sunlight, overlooking and privacy. The Council had regard for the relevant planning policies and development plans. The Council has provided Mr X with further explanation about its decision-making rationale in the response to his complaint about the matter.
• The Council responded to Mr X’s further objections by preparing an addendum case report. This demonstrates the Council was actively responding to new issues as and when they were raised. This was the correct approach. Mr X may disagree with response to his concerns but in the absence of fault in the way the decision was reached, the Ombudsman cannot interfere.
• The Council sought legal advice about the land ownership issue raised by Mr X. If Mr X disagrees with the Council’s response, this is a matter for the courts to decide, not the Ombudsman.
• Mr X had a lease on the garage that gave either party the right to terminate the lease by giving only a weeks’ notice. Because Mr X had no ongoing legal right to use the garage, I cannot criticise the Council for offering a reasonable alternative, particularly as he was using it for storage only.

37. My overall assessment of the complaint is that the case officer who recommended approval wrote a thorough report which explained and weighed the relevant matters fairly. He recommended granting planning permission having fully considered the facts of the case. The report contained a consideration of the guidance, planning policies and objections. Planning officers have a wide discretion in making their decisions.
38. I am also satisfied the Council provided Mr X with a comprehensive and sufficiently detailed response to his complaint.
39. Planning is a matter of judgement, where the Council weighs different aspects of local and national guidance before coming to a decision. Mr X disagrees with the Council’s judgement the proposal does not adversely impact the amenity of his property. This does not make the Council’s decision wrong. The Council weighed local and national planning policies and came to a decision. There is no evidence of fault in how the Council considered these policies. Where there is no fault in how the decision was made, I cannot question the merits of the decision itself. It is a professional decision the Council was entitled to take. The Council is not at fault.

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Final decision

40. I find the Council acted without fault in deciding a planning application near Mr X’s home. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman