Summary: Mr X complained about the Council’s handling of a planning application for development near his home. Mr X said the development was overbearing and reduced privacy to his home. We found no fault in how the Council reached its decision to grant planning permission for the application development.

The complaint

1. Mr X said the Council did not properly process a planning application for development near his home because:

• it failed to consider relevant planning policies including about trees and hedgerows;
• failed to identify a boundary fence would not screen his home from the development; and
• failed to consider if the development would be overbearing or overlook his home.

2. Mr X said the development was overbearing and overlooked his home reducing his privacy. Mr X wanted the Council to screen the development to restore privacy to his home.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

5. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered planning information available on the Council’s website about development of the site near Mr X’s home; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

Back to top

What I found

Background

6. Most development needs planning permission from the local council. Councils must consider each planning application on its own merits. They must also decide applications in line with relevant policies in their development plans unless material planning considerations indicate they should not. Material considerations concern the use and development of land in the public interest but not private matters. Examples of material considerations are traffic generation and overlooking. The developer’s behaviour, the view from peoples’ homes and potential changes to house prices are not material planning considerations.
7. Councils must publicise planning applications so people have an opportunity to comment on development proposals.
8. A planning case officer may visit the development site but there is no legal duty to do so. The case officer may also write a report assessing the proposed development against relevant policies and other material planning considerations. Any such report usually ends with a recommendation to approve or refuse the application. The courts have made 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.

9. Planning policies may pull in different directions, for example, promoting new housing and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application. A senior council officer, acting for their council, will decide most of their council’s planning applications. As decision maker, the senior officer may, in weighting the material planning considerations, either agree or disagree with the case officer’s report recommendation.
10. Planning permissions have time limits. The time limit usually appears in a condition placed on the permission. Councils may also impose other conditions on a permission to regulate the development. The Government’s National Planning Policy Framework says councils should keep conditions to a minimum.
11. Sometimes people want to know if development will be acceptable on a site before preparing detailed proposals. So, rather than making a fully detailed application, they may apply for outline planning permission. If granted, outline planning permission effectively establishes the approved type of development is acceptable subject to ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development. The developer needs the council’s approval to the reserved matters before implementing an outline planning permission.
12. Once planning permission is granted, people sometimes need to change their development proposals. If the changes are ‘fundamental’, people may need to make a new application to the council and complete the planning process again. Some changes may affect conditions on the original planning permission. If so, people may apply for permission to develop without complying with, or after varying, those conditions. (See section 73 of the Town and Country Planning Act 1990, as amended (‘Section 73’).)

Summary of what happened

13. The Council granted outline planning permission for development. The Council did not receive any reserved matter applications but later received fully detailed planning applications to develop the site covered by the outline permission. The Council granted planning permission for the applications (‘the permissions’). The permissions included a condition saying the development had to be carried out in line with listed documents (‘the Condition’). The lists in the Condition included plans showing the design of the approved new buildings.
14. The time limit for the outline planning permission passed and so it could not be implemented.
15. Works started on the development site, including the removal of existing buildings and construction of new buildings approved by the permissions.
16. The Council then received a planning application to change the Condition in one of the permissions (‘the Permission’). The application was made under Section 73 (‘the Application’). Essentially, the developer wanted to change the design of a building approved by the Permission. So the developer needed the Council’s approval to replace some of the plans listed in the Permission Condition with plans showing the new design.
17. The Council publicised the Application by sending letters to the owner/occupier of properties near the site and erecting a notice near the site. The Council said it received no representations in response to the publicity.
18. A planning case officer prepared a report assessing the Application. The report identified relevant planning policies. The report found the principle of the development on the site had been established by the Permission. The main planning issues assessed in the report included the scale and design of the changed building and its impact on existing nearby properties. The report found the changed building had no detrimental impact on the character of the area. And, subject to a planning condition, it had no significant detrimental impact on nearby properties compared to the Permission building. The report found the changes acceptable and so the development, as varied, remained compliant with relevant planning policies. The report recommended, and the Council granted, planning permission for the changed design.
19. Meanwhile, before the Council received the Application, Mr X had viewed an existing property near the development site. Mr X said he saw construction work taking place on the development site. He also found out about all the earlier planning approvals to develop the site. Mr X considered the building approved by the Permission acceptable and later decided to move into the nearby property. Mr X said he was not aware of the Application, which the Council had approved, when he moved into the property.
20. A few months later, Mr X noticed a building on the development site differed from that he had seen as approved by the permissions. Mr X then found out about the Application and the Council’s decision to approve a different design for the building.
21. Mr X complained to the Council saying it had not properly processed the Application and raising three main concerns (see paragraph 1 of this statement). Mr X said the new building substantially reduced privacy to his home and he would have strongly objected to the Application.
22. In response, the Council said the Permission was not time expired when it received the Application. So, it had to take the Permission into account in deciding the Application. As the Application only sought to change the design of the approved building, it had to consider the impact of the changed design. Its officer’s report had considered the impact on neighbouring properties. And a planning condition had been placed on the Application permission to further protect existing homes from unacceptable overlooking.
23. The Council recognised the outline application and planning permission had included information about trees and hedgerows. However, it was time expired when it decided the Application. And there had been no landscaping conditions on the Permission and no approved drawings showing retained hedgerows. The Council pointed out the planning permission for the property in which Mr X lived included a condition for tree planting along the property boundary. The Council also said a boundary fence was in place when it decided the Application and when it later visited the site in response to his complaint. It had also considered the height of adjacent land on its visit. But, it decided not to act to reduce the height and it found the boundary fence complied with the Application planning permission.

Consideration

Introduction

24. The Ombudsman is not an appeal body. This means we do not take a second look at a council decision to decide if it was wrong. Instead, we look at the processes a council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of how strongly a complainant may disagree with that decision.

Planning policies

25. Here, I considered the steps the Council took to determine the Application and how it reached its decision. The case officer’s report showed the Council identified relevant planning policies, including a policy raised by Mr X. I could not therefore find the Council failed to take that policy into account in deciding the Application.
26. However, the officer report did not refer to the Council’s supplementary planning policy about trees and hedgerows. But the Application sought to change the design of a previously approved building. Changing the design, given the building remained in the same position on the site, would not have a significant direct effect on any boundary or other planting remaining after the site demolition works. And, as the Council’s complaint response to Mr X pointed out, there was no condition on the Permission about retaining boundary planting or landscaping. Rather, there was a condition for boundary tree planting on the planning permission for Mr X’s home. I could not therefore find the Council at fault for not expressly addressing boundary planting and landscaping in deciding the Application.

Boundary fence

27. There was no dispute a boundary fence was, and remained, in place adjacent to the building approved by the Application. Mr X’s complaint about the fence not providing privacy screening arose after the grant of planning permission for the Application. The development site sloped down to the boundary fence. But, in developing that part of the site, the slope was effectively levelled. So, rather than providing privacy screening, the fence was retaining the raised ground level on the site. As this took place after the grant of planning permission, I could not find the Council at fault in relation to its consideration of the boundary fence when granting the Application planning permission.
28. The Council said it visited the development site and decided it could not act against the raised ground level. However, the Council mighty not have been aware that Mr X’s complaint about the fence not providing screening actually concerned the alleged unauthorised raising of ground levels on the site. Substantive changes to ground levels without the necessary planning permission may be a breach of planning control. And councils have discretion to take enforcement action if they find a breach. So, while I found no fault in relation to the grant of planning permission for the Application, the Council might further consider any enforcement implications of the alleged change to site ground levels.

Impact on neighbouring properties

29. The case officer’s report identified the impact on existing nearby properties as a key issue in deciding the Application. The report also expressly referred to Mr X’s property in considering that issue. I therefore had no grounds to find fault here.

Conclusion

30. I recognised Mr X found the Application development unacceptable. And he may have expected a fuller and more detailed assessment of the Application by the Council. However, I found no evidence of fault in how the Council processed the Application. And, the officer report was proportionate and appropriate given the nature of the Application and scale of the development. So, having found no evidence of fault, I could not question the Council’s decision to grant the Application planning permission.

Back to top

Final decision

31. I completed my investigation finding no fault in how the Council granted planning permission for the Application.

Back to top

Investigator's decision on behalf of the Ombudsman