Summary: Mrs X complained the Council did not appropriately consider the impact of a neighbouring development on her residential amenity, before approving the application. As a result, there is an unacceptable loss of her privacy. The Council is at fault. It has agreed to approach Mrs X’s neighbour to offer to pay for the window to be obscure glazed. If the neighbour does not agree to this, it will pay Mrs X £3,000 to acknowledge the enduring impact and loss of privacy caused. It will also make a payment to Mrs X to acknowledge the distress caused and the time and trouble she has gone to pursuing her complaint.

The complaint

1. Mrs X complained the Council:
• Failed to notify her about her neighbour’s planning application, which meant she lost the opportunity to comment;
• Did not appropriately consider the impact of an additional side window on her amenity; and
• Failed to take enforcement action despite accepting the window installed was larger and in a different position to the approved plans.
2. Mrs X says the additional window has caused unacceptable overlooking and loss of privacy. She wants the Council to acknowledge its mistakes and to act to remove the window and restore her privacy.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 read Mrs X’s complaint and spoke with her about it on the phone.
7. I made enquiries of the Council and considered information it sent me.
8. I considered planning documents available on the Council’s website.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Planning background

Planning applications

10. Councils should approve planning applications that accord with policies in their local development plan, unless other material planning considerations indicate they should not.

Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

Planning considerations do not include things like:

• Views other another’s land;
• The impact of development on property value; and
• Private rights and interests in land.
4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

The Council’s Statement of Community Involvement (SCI)

12. The Council’s SCI says anyone is welcome to make comments on planning applications. It says for all applications, it will send neighbour notification cards to the occupiers of properties immediately adjoining the proposed development. People will then usually have 21 days to respond or comment on the application.

Case officer reports

13. We recognise that councils have discretion to depart from their policy and guidance, but they need to demonstrate they have exercised that discretion properly. We normally expect to find evidence of consideration of the key material issues in the case officer’s report, which is written to advise the decision-making body or individual.
14. The purpose of the report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.

Permitted development

15. Not all development requires planning permission from councils. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
16. Permitted development regulations allow for upper floor windows in a side elevation to be classed as permitted development provided they are:
• Obscure glazed; and
• Non-opening, unless the part of the window which can be opened is more than 1.7 metres above the floor in which the window is installed.

Supplementary planning guidance

17. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
18. The Council’s SPD says when considering residential amenity, its starting point for an acceptable separation distance between properties is 20 metres. However, the acceptable distance may be reduced where the impact on privacy can be satisfactorily mitigated, for example where houses face each other at an angle, or the impact on privacy can be reduced by obscure glazing or restricted openings.

Planning enforcement

19. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.

What happened

20. In 2019, Mrs X’s neighbour applied for planning permission for a two-storey rear extension. The application also included an additional window in the side elevation of the original property. The location is approximately 9-10 metres from the side elevation of Mrs X’s property.
21. The Council considered the application and granted planning permission. The decision notice did not include any conditions related to the side window.
22. When considering the potential impact on Mrs X’s property, the case officer report said:
• On the basis that no side-facing windows are proposed to be inserted within the extension, it is also not considered that the development would lead to any increased overlooking onto the neighbour; and
• It is not considered that the proposal would have any unacceptable impact on the residential amenity of the neighbours.
23. Mrs X complained to the Council. She said the Council had not notified her of the planning application and she had not been given the opportunity to comment. She also said the window installed at the side of the property was larger and in a different position to that approved in the planning permission.
24. The Council said the principle of the first floor window had already been established, as the application was approved without planning conditions. It said it did not consider the increased size and location of the new window caused any increased harm to that which had been approved, and so would not take any enforcement action.
25. Mrs X disagreed with this position and brought her complaint to us. She told us:
• She had not received a neighbour notification so had not been given an opportunity to object;
• The case officer report had not considered how the installation of the additional window would affect their privacy; and
• The window looked directly into two bedrooms, their kitchen and garden.
26. In its response to our enquiries, the Council said:
• It accepted that the case officer report had not satisfactorily addressed the impact of the additional window on Mrs X’s property;
• As the window allowed additional overlooking above and beyond that already in existence, it is most likely it would have required the window to meet the conditions for permitted development. i.e. be obscured glazed and non-opening; and
• If that was not achieved, it is likely it would have sought removal of the window on the basis that the additional overlooking was an unacceptable impact on Mrs X’s residential amenity.
27. It said it had sent Mrs X a neighbour notification card and provided evidence of this from its planning records.
28. It said although it had lost control from a planning perspective, the Council would be willing to try and negotiate with the applicant to see if they would agree to obscure glaze the window.

Analysis

Planning process

29. The planning documents include Mrs X’s property on the list of direct neighbours and the records show a neighbour notification was sent to Mrs X. Mrs X says she did not receive this. On the balance of probabilities, I consider that the Council did send Mrs X a notification. I cannot know the reason why Mrs X did not receive this, but I cannot say the Council is at fault.
30. The Council has accepted it acted with fault because the case officer report did not consider the impact of the additional window on Mrs X’s amenity.
31. The Council says had it considered the impact appropriately, it would most likely have required the window to meet the conditions of permitted development, or, if that was not achieved, required the window to be removed. As it did not do this, the unobscured window is impacting on Mrs X’s privacy and causing an ongoing injustice.
32. The Council has said it could ask the applicant whether they would agree to obscure glaze the window, but there is no certainty they will agree to this. The Council’s offer is insufficient to remedy the injustice and potential enduring loss of privacy caused. I have recommended a more suitable remedy below.

Enforcement

33. The Council considered Mrs X’s complaint about the positioning and increased size of the window but, in the context of what had already been approved, did not consider these caused sufficiently increased overlooking to warrant enforcement action.
34. The Council has a wide discretion to decide whether to take enforcement action. In the context of the approved planning permission, it considered Mrs X’s views appropriately. There was no fault in the Council’s actions.
35. However, had the Council accepted it made earlier errors in its planning processes, it could have sought to resolve the situation sooner without Mrs X needing to bring her complaint to us. As a result, Mrs X has been caused considerable distress and has gone to unnecessary time and trouble pursuing her complaint.

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Agreed actions

36. Within one month of the date of the final decision, the Council will pay Mrs X £300 in recognition of the distress caused and the unnecessary time and trouble she has gone to pursuing her complaint.
37. Within three months of the date of the final decision, the Council will:
• Contact Mrs X’s neighbour to see if it can reach agreement for the window to be obscure glazed. It should offer to pay for these works; and
• If works to fit obscure glazing are not agreed, the Council will pay Mrs X £3,000 in recognition of the enduring impact the unobscured window has on her residential amenity.
• Provide an update for the Ombudsman on the actions it has taken.

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Final decision

38. I have completed my investigation. I have found fault and the Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman