• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My findings
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr B complains the Council failed to properly determine a neighbour’s planning application before granting permission. Further, he complains the Council has not properly considered revoking the planning permission due to the interference it will have with his property rights. We found the Council failed to properly determine the application. However, the power to revoke planning permission is discretionary and the evidence suggests the Council did properly consider this. Mr B has suffered an injustice by reason of the identified fault and so we have recommended a number of remedies.

The complaint

1. The complainant, who I refer to as Mr B, is making a complaint in relation to a planning application approved by Durham County Council (the Council). Specifically, Mr B alleges the following:
   • 1. he was denied his legal right, as a neighbour to the proposed development, to be consulted with respect to the planning application;
     2. the Council failed to consider relevant factors relating to non-designated heritage assets and historic surroundings;
     3. the Council’s planning officer forgot to apply heritage criteria, despite applying them forcefully to a planning application he submitted recently;
     4. the Council wrongly disapplied its supplementary planning guidance relating to building separation (namely the 20-meter rule) and;
     5. the Council approved the application despite acknowledgement of failings and a view the application should be denied.
2. In summary, Mr B says the Council’s failings have resulted in considerable anxiety, stress and upset. He also says the development, permitted by error, will have an adverse impact on the area he lives in and on his privacy at home. As a desired outcome, he wants the Council to revoke planning permission.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended).
5. 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)
6. We cannot question a council’s decision-making 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

7. I have read Mr B’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. I invited both Mr B and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

Application for development

8. Section 55 of the Town and Country Planning Act 1990 provides that planning permission is needed if the work being carried out meets the statutory definition of ‘development’. ‘Development’ includes building operations (e.g. structural alterations, construction, rebuilding, most demolition).
9. An application for planning permission for development is made to the local planning authority (LPA). This will normally be the district council or London Borough. Planning application procedure is set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order), SI 2015/595, (in England) (the 2015 DMPO). The LPA must provide a determination on the matter following a consultation.
10. The Planning Inspector acts for the responsible Government minister. The Planning Inspector considers appeals about:
    • 1. delay by an authority in deciding an application for planning permission;
      2. decision to refuse planning permission;
      3. conditions placed on planning permission and;
      4. a planning enforcement notice.
11. Local planning authorities are required to undertake a formal period of public consultation, prior to deciding a planning application. This is prescribed in article 15 of the Development Management Procedure Order (as amended).

National and local planning policy

12. The National Planning Policy Framework (the Framework) sets out the Government’s planning policies and how these should be applied. It provides a framework within which locally prepared plans for housing and other development can be produced.
13. Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. The Framework must be taken into account in preparing the development plan, and is a material consideration in planning decisions. Planning policies and decisions must also reflect relevant international obligations and statutory duties.

Development plan

14. The Development Plan is at the heart of the planning system with a requirement set in law that planning decisions must be taken in line with the development plan, unless material considerations indicate otherwise. Policy 44 Historic Environment within the County Durham Plan (CDP) 2020, applicable during this period states:

“Development will be expected to sustain the significance of designated and non-designated heritage assets, including any contribution made by their setting. Development proposals should contribute positively to the built and historic environment and should seek opportunities to enhance and, where appropriate, better reveal the significance and understanding of heritage assets whilst improving access where appropriate.”

15. Policy 39 of the CDP states that proposals for new development will be permitted where they would not cause unacceptable harm to the character, quality or distinctiveness of the landscape, or to important features or views.
16. Policy 31 of the CDP states that proposals that will have an unacceptable impact in terms of overlooking, visual intrusion, visual dominance or loss of light, noise or privacy will not be permitted unless satisfactory mitigation measures can be demonstrated. The Councils adopted Residential Amenity Standards Supplementary Planning Document states that there should normally be a distance of 21 metres between the windows of principal rooms where on or both properties is two storeys in height.

Power of revocation

17. Should it consider it expedient to do so, section 97 of the Town and Country Planning Act 1990 gives a local planning authority the power to revoke or modify planning permission before the building works has been completed. This power is entirely discretionary by the local planning authority and is rarely used.

Chronology of events

18. In January 2021, the Council granted planning permission for a single storey rear extension to extend Mr B’s neighbour’s family accommodation.
19. The Council’s decision noted the following with respect to Policy 31 of the CDP and its Supplementary Planning Document (SPD):

“The proposed development is approximately 10 meters from the nearest neighbouring properties windows (Mr B’s windows), although this does not fully comply with the SPD, there is a large amount of mature planting which is considered to adequately screen the proposed development from surrounding neighbours, it is therefore considered that it would not result in significant adverse effects on the amenity of surrounding occupiers. Although the standards aren’t being strictly adhered to in this instance, it is considered in this case, it would be unreasonable to recommend refusal of the application.”

20. Following the grant of planning permission, the Council received a formal complaint from Mr B about the determination of the planning application. Upon reviewing the case file, the Council noted a number of errors had been made, specifically with reference to a lack of consultation and its consideration and application of policies 44 and 39 of the CDP. With respect to the proposed development not being strictly in accordance with the SPD, the Council did not consider this would result in significant adverse effects with Mr B’s residential amenity, noting he could adopt measures to reduce the impact of this.
21. In June 2021, the Council carried out a review of the decision made. It properly considered the Framework and the CPD and SPD, as well as the likely impact on Mr B’s residential amenity. The Council decided that were it to take the decision again, it is likely it would reject the planning application. That said, the Council felt the development would not result in significant interference with Mr B’s residential amenity by reason of overlooking. However, it did accept there will be some adverse impact as a result, particularly in light of the development not strictly conforming to the SPD with respect to distance to nearest adjacent windows.
22. In July 2021, the Council considered whether to revoke planning permission while having due regard to its review of the planning decision made. The Council considered the procedural failings in the planning process, as well as the impact on Mr B. However, the Council decided it would not be expedient to exercise its discretionary powers and revoke the planning permission.

My assessment

Jurisdiction

23. I recognise Mr B has expressed dissatisfaction that the Council has inconsistently applied heritage criteria. He says his application a number of years ago was denied by the Council on these grounds. However, refusal of planning permission carries a right of appeal to the Planning Inspectorate which acts for and on behalf of the Secretary of State for Levelling Up, Housing and Communities. The law says that in circumstances where it is reasonable for a complainant to appeal to a Government minister, I have no jurisdiction to investigate (see Paragraph 4). I have not seen any evidence it would have been unreasonable for Mr B to exercise her right of appeal in relation to this matter. I will not therefore exercise my discretion and investigate this part of the complaint.

Determination of planning application

24. The Council fully accept it failed to properly determine Mr B’s neighbour’s planning application with due regard to the Framework and the CPD. In particular, the required neighbour notification letters were generated but not sent out, meaning that neighbours were not afforded the opportunity to make representations in respect of the application before it was determined. In addition, no regard was had to the nearby heritage assets during the determination. There was therefore no assessment of the impact of the proposal upon the surrounding heritage assets which include listed structures and a locally listed Historic Park and Garden. The Council subsequently reassessed the planning application, taking into account all of the relevant issues, and concluded that if the application were to be determined afresh, it is likely that planning permission would be refused. I therefore find serious fault by the Council with respect to these issues.

Power to revoke planning permission

25. By law, I cannot question the merits of the Council’s decision to not exercise its discretionary power and revoke planning absent procedural failings. My role therefore is to decide whether the Council properly considered its discretionary power to revoke. In these circumstances, I would expect the Council to consider the Framework, CPD and impact on Mr B’s amenity. Further, I would expect the Council to conduct a full review of the planning decision before addressing the question of whether to revoke the planning permission. This is because it would be inappropriate for the Council to consider the initial planning decision which was subject to numerous failings. I am satisfied the Council addressed each of these areas and I have not identified any fault in how it considered exercising its discretionary power. While I therefore symphasie with Mr B, I have no jurisdiction to question the merits of the Council’s decision-making in this respect.

Injustice

26. The Council’s failure to consult Mr B and properly determine the planning application has caused him significant distress and uncertainty over a prolonged period. In addition, it is acknowledged by the Council there will be some interference with Mr B’s residential amenity due to the development overlooking parts of his property. However, the Council say the level of interference is not significant and that Mr B can take actions to limit the impact of this. In any event, I consider this will also be a cause of serious distress and anxiety to Mr B.
27. Importantly, it is not my role to determine with precision the level of interference with Mr B’s property rights. Further, I cannot remedy a breach of Mr B’s privacy in the way a court of law might. Decisions about whether a council’s actions have resulted in a breach of privacy usually requires the structure of civil litigation. Moreover, only a court can decide if a council has breached a person’s legal privacy rights and so should pay damages. We cannot recommend actions or payments that ‘punish’ the Council. That said, I fully acknowledge that there will be some level of interference from the developed property and that Mr B will need to incur expenses to limit the impact of this. I am therefore recommending a remedy which serves as acknowledge of these circumstances.
28. Separately, Mr B has incurred £540 in professional fees in order to bring his complaint to the Ombudsman. We only recommend reimbursement of legal or other professional costs in exceptional circumstances. For instance, there may be circumstances where it is reasonable for a complainant to have engaged legal or other professional help in a matter, particularly where it is highly complex. In such cases, we may consider recommending a remedy to reimburse costs which directly and necessarily flow from the fault identified. In my view, the subject matter of Mr B’s complaint is sufficiently complex to justify him seeking professional advice so to properly articulate his complaint. I also consider his losses in this respect are a direct result of the Council’s failure to properly notify him of the planning application and determine this to a satisfactory standard. I am therefore recommending reimbursement of Mr B’s professional costs in full.

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Agreed action

29. To remedy the fault and injustice, the Council will perform the following actions by no later than 21 May 2022:
    • 1. Provide Mr B a written apology which addresses each area of fault and injustice identified in this statement.
      2. Pay Mr B £1,000 to acknowledge the serious distress, uncertainty and time and trouble he has suffered by reason of the identified fault.
      3. Pay Mr B £2,500 to acknowledge the interference with Mr B’s amenity by reason of the overlooking of the development. This payment is intended to help Mr B adopt measures to reduce the impact of this prior to development.
      4. Pay Mr B £540 in order to reimburse his reasonably incurred professional costs and advice.
30. In addition, I recommend the Council provide additional training and support to all officers with material involvement in the planning application’s determination. The training and support provided should focus on the areas of fault identified in this statement. The Council will provide evidence to the Ombudsman that it has satisfied this action by 21 July 2022.

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Final decision

31. The complaint is partially upheld. This is because there was clear and serious fault with how the planning application was determined. However, there was no fault in the way the Council considered its discretionary power to revoke the planning permission. I therefore have no jurisdiction to question the merits of that decision. Mr B has however suffered an injustice by reason of the fault identified and so I have recommended a number of actions for the Council to take to remedy this.

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Investigator's decision on behalf of the Ombudsman

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