Summary: Mr X complains the Council did not properly decide on a planning application, resulting in a development that affects his amenity. We find fault that did not affect the decision outcome but caused Mr X uncertainty. We recommend the Council provide an apology, payment and take action to prevent recurrence.

The complaint

1. Mr X complains the Council failed to notify him of a planning application and failed to consider the impact of the development on him. He says the development causes loss of privacy, noise disturbance, loss of amenity, loss of property value and breaches his human rights.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I also reviewed planning documents available online.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered their comments before finalising this decision.

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What I found

Notice of planning applications

7. Councils must give the public notice of planning applications so they have the opportunity to comment and raise any objections.
8. For major developments councils must place a site notice or send letters to neighbouring properties. They must also advertise the planning application on their website.

Deciding planning applications

9. A council must decide on a planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Material considerations include the impact on amenities, such as loss of privacy or noise. A council must be able to show that it has considered material planning considerations.
10. Councils do not have to consider any impact on private rights, such as loss of property value or disputes over land ownership. These are not material planning considerations.

Human Rights

11. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It requires all councils to respect and protect individuals’ rights.
12. The Ombudsman’s remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
13. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened

14. A developer applied for outline planning permission for housing and a ground level public car park near to Mr X’s property.
15. In 2017, a case officer report set out their consideration of the planning application with reference to the local development plan, relevant law and policy. The report explained why the officer found the principle of development acceptable. This included the officer’s view that homes could be accommodated on the site without adverse impact to residential amenity. However, the case officer recommended the Council refuse the application on other grounds, including ecological concerns. The Council’s ecologist had found the developer’s ecological report inadequate.
16. The developer made changes to the proposal to address the Council’s concerns. This included increasing the number of car parking spaces. They also provided further information for the Council to consider, including additional ecology reports.
17. In 2018, the same case officer produced a further report setting out their views on the changes and additional information. The officer noted the increase in car park spaces did not affect the previous favourable recommendations in terms of highway considerations; impact on living conditions; the character and appearance of the area; the water environment and drainage, or archaeological issues. The Council’s ecologist was satisfied with the additional ecology reports and had no further concerns. The case officer recommended the Council approve the outline planning permission.
18. The Council considered the case officer’s report and approved the outline planning permission.
19. The developer later applied for planning permission on reserved matters.
20. The Council says it put up a site notice, sent neighbour letters and advertised the planning application on its website.
21. In 2019, a case officer produced a report on the reserved matters application. The report set out their consideration of the application with reference to the local development plan, relevant law and policy. The report detailed the objections received. These included:
• that the development was overbearing;
• the overlooking impact was a breach of human rights;
• concerns about noise and;
• concerns about the impact on the ecology of the area.
22. The report set out the officer’s views on whether the development impacted on residential amenity. The officer referred to relevant law and policy. They commented on the site’s relationship to neighbouring properties, including Mr X’s property. The officer set out the layout and position of the proposed properties, including the position of windows and the distances between the properties. Taking into account the revised plans and also the distances between proposed homes and those on a neighbouring estate, they found the development would ensure an acceptable standard of amenity for existing and future occupiers.
23. The report set out the officer’s views of the car park as a highway consideration. I note the officer does not comment on whether the car park may impact on residential amenity.
24. The report referred to a Habitat Regulations assessment, carried out by the Council’s ecologist and approved by Natural England. The Council’s ecologist recommended various conditions were attached to the planning permission. The case officer noted most of these were already attached to the outline planning consent.
25. In regards to human rights considerations, the case officer’s report set out the relevant law. The officer explained it was an inherent part of the decision-making process for the Council to assess the impact on individuals and balance this against the wider public interest. The officer found on balance that the development would provide an acceptable standard of amenity for residents and was appropriate to the area for the reasons set out in the report.
26. The case officer recommended the Council approve the reserved matters application.
27. The Council approved the application with conditions. These included for the developer to comply with recommendations of the earlier ecology reports, to protect wildlife.
28. In February 2020 Mr X complained to the Council:
• It failed to ensure he was notified of the planning application;
• It failed to consider the impact on the amenity of occupiers of his property;
• The ecology reports were deficient;
• There were no anti erosion measures;
• It had agreed highway works over private land.
29. He wanted the Council to visit his property so that it could understand the impact.
30. In further correspondence Mr X explained:
• The Council’s current publicity of applications was inadequate in notifying owners of properties not currently living in an affected property. Further the Council knew he did not occupy his property and should have wondered why it had not received comments from him, given his property was most affected.
• He was concerned about noise, lights and fumes from the car park, further that people could overlook into his garden and through the windows as the car park was now higher.
• He was concerned about surface water run off following the developer’s removal of a dam. And he felt the increased ground levels of the development would affect his property.
• Officers should have visited his property and taken his views in preparing their ecology reports.
• The footpath would direct cars over his property, eroding the frontage. Further a builder had destroyed one of his trees.
• He considered these matters would result in loss of property value.
31. The Council responded in March 2020. It explained:
• It met its legal duty by placing a site notice however it sent neighbour letters in addition to this. It was not logistically possible to contact owners not living in a property but its letters told tenants to pass the letter onto the owner.
• The Council noted the case officer’s report showed specific consideration of his property and determined it would not suffer overlooking.
• Construction noise would be temporary and noise from residents was unlikely to be any different than any other residential situation. If there were any very significant disturbances from the car park there were environmental health laws to deal with noise nuisance.
• At outline stage the planning committee had asked for further ecology reports and upon review approved the outline plans with conditions. These were to ensure the development protected any potential ecology and bats. At reserved matters stage a full appropriate assessment of the development was carried out by the Council’s ecologist and agreed with Natural England. The appropriate assessment concluded the development complied with the regulations and would not harm the habitat interests of the site or surrounding area. The Council thoroughly assessed the ecology and bat issues associated with the site and the development complied with all the relevant legislation.
• Any issues of trespass or removal of vegetation must be taken up with the builder rather than the Council.
• Financial loss as a result of granting planning permission was not a material planning consideration and could not be taken into account when considering an application.
• It felt a meeting on site with him would not achieve anything further.
32. I note the Council did not address Mr X’s concerns about overlooking, surface water run off, increased ground levels, and not hearing from him when preparing ecology reports. It also did not fully explain why it was not concerned with private matters.
33. In March Mr X asked the Council to go to stage 2. He felt the Council had breached his human rights. He added:
• He remained unhappy the Council did not contact him directly about the planning application;
• There was no evidence of due consideration of the impact of the car park to him;
• His property was previously secluded, yet there was no concern of the impact of the development to him;
• The development encroached on his land;
• A builder removed vegetation despite assurances to the contrary;
• The car park was not a benefit to the community and was out of place;
• The complaint response was dismissive;
• He was unhappy the Council had not visited the site.
34. The Council responded at stage 2 in July. The Council:
• Apologised for the delay, due to increased workload and staff absence.
• Maintained it gave notice as required by law.
• Denied improper consideration of the impact of the car park.
• Maintained loss of property value was not a material planning consideration.
• Said the case officer report addressed human rights.
• Explained the complaints investigator did not need to make a site visit as they were not reaching their own judgement on planning issues.
• He could contact the Ombudsman.
35. Mr X then contacted the Ombudsman. In summary, he complained the Council:
• Failed in its duty to notify owners of rental properties;
• Did not investigate why it had not received any objections from him;
• Failed to consider the impact to him;
• Did not carry out proper conservation enquiries;
• Did not address his specific complaints;
• Did not explain its views on the change to the plans, which meant his property was now overlooked and;
• Did not explain its views on the car park, which was now at a higher level and allowed for overlooking.
36. In response to enquiries the Council said the case officer’s report showed consideration of the new window positions in relation to Mr X’s property. It considered the car park did not allow for significant overlooking given the floor levels, shrubbery and fencing. While it could not speak to the case officer directly it noted the officer addressed the car park within the report and if there was a concern of overlooking this would have been mentioned. The Council also provided a photo showing the view towards Mr X’s house from the car park. I note the view is obscured by a fence and shrubbery.
37. The Council said the case officer assessed the site at outline stage and so did not need to undertake a further assessment on the reserved matters application. However, they did visit the site at the reserved matters stage to put up the site notice.
38. In comments on a draft of this decision Mr X said, in summary:
• The case officer’s report does not mention his property and therefore he does not accept the Council considered the impact to him or on his human rights.
• The case officer did not consider whether the car park impacted on his residential amenity.
• The case officer did not consider the revised plans or the new positions of the proposed houses. It appears they cut and paste their analysis from an earlier document prepared before the plans were changed.
• He disagrees with the Council’s view that the shrubbery and fence offer any protection to his privacy. He has provided photos in support.
• The purpose of consultation is to notify those likely affected by a development however the Council did not meet this purpose.

Findings

39. I am satisfied the Council met its legal duties to give notice of the reserved matters planning application. The Council did not have to take further steps to contact anyone else with an interest in the property, such as Mr X. I therefore do not find fault. Insofar as Mr X disputes the Council’s interpretation of its legal duties, this would be a matter for the courts.
40. I accept Mr X was unaware of the application and I understand he would like the Council to change its procedures to ensure it contacts owners. However, I have not found the Council at fault and so I cannot recommend a remedy.
41. 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. This means I cannot criticise the Council’s judgement, rather I can consider whether the Council followed a proper decision making process, applying relevant law and policy and taking account of relevant information.
42. The case officer report on the reserved matters application shows the officer considered the application in line with the local development plan, relevant law and policy. They took account of material considerations including any impact on residential amenity and any impact to the ecology. They did not comment on any private matters such as land ownership or loss of property value, which are not material planning considerations. The officer’s report demonstrates the officer was aware of human rights considerations and confirmed these formed part of the decision making.
43. While I recognise Mr X was unhappy with the ecology reports and felt the Council should have undertaken further enquiries, this was a matter for the Council’s judgement, it was under no obligation to do so. And, while Mr X feels his property is greatly impacted by the development, in planning terms the Council judged there was not an unacceptable impact on residential amenity. Again this is a matter of the Council’s judgement. I note Mr X’s concern that the Council did not consider him or his property at all. However, the case officer report refers to the surrounding properties, including his. Although the report may not be to the level of detail Mr X would have wanted, that is not fault. The report also refers to the revised plans and therefore I am satisfied the case officer saw and considered these. The case officer was not obliged to revisit the site.
44. However, while I consider the case officer’s report was detailed and shows proper consideration of many aspects, I note the officer does not comment on whether the car park will have any impact on residential amenity. Given its proximity to Mr X’s property I consider this should have been included in the report. Not doing so amounts to fault. However, I find on balance this would not have changed the officer’s decision to recommend approval or the Council’s decision to approve the application. This is because the Council has since highlighted that environmental health law can control undue noise, light and fumes, and it has since given evidence based reasons for its view that Mr X would not suffer significant overlooking. I therefore consider it more likely than not that the case officer and Council would have held the same views had they recorded these at the relevant time.
45. I acknowledge Mr X disagrees with the Council’s view that existing shrubbery and fencing offer any protection to privacy. However, I cannot say the Council’s judgement is right or wrong. The Council has provided clear and cogent reasons for its view, supported by evidence. I find no fault in how it reached this view.
46. I therefore find no fault in the Council’s decision making process that affected the decision outcome. However, the lack of evidence to show the case officer considered the impact of the car park added to Mr X’s concern and distress.
47. In regards to the Council’s complaint handling, I find it did not address all of Mr X’s concerns or provide adequate explanation on all points. I consider this amounts to fault, causing Mr X distress and uncertainty.

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Agreed action

48. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Provide Mr X with a written apology;
• Pay Mr X £100 for distress and uncertainty;
• Ask Mr X if he has any outstanding queries, allowing two weeks for him to respond and, provide a further response as necessary, within two weeks of his reply;
• Remind staff of the importance of addressing each part of a complaint.
49. The Council has accepted my recommendations.

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Final decision

50. I find fault by the Council causing distress and uncertainty. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman