Summary: X complained about the Council’s decision to allow development on their neighbour’s land. We did not continue our investigation as it was unlikely to result in a different outcome or a remedy for X.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to allow a development on land next to their home.
3. X said the development will cause a significant loss of privacy in their rear garden.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

7. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
8. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Planning enforcement officers sometimes ask developers to submit retrospective applications where they find evidence that development is not lawful.
9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
14. 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.
15. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
16. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
17. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.

What happened

18. X lives next to a house that got planning permission for an extension. The plans showed that windows on the first floor were obscurely glazed. The Council approved the plans subject to a condition, which required the windows to remain obscurely glazed.
19. Instead of extending the house, the developer demolished it and began building a house similar to the original with its approved extension. This was a breach of planning control and so the developer submitted a second, retrospective application. Again, the plans showed that first floor windows would be obscurely glazed.
20. The Council approved the second application, but this time it did not include a condition controlling glazing on all first-floor windows.
21. X complained to the Council. In its response at stage 2 of its complaint’s procedure, the Council said:
• the condition controlling glazing in the first approval failed the necessity test and should not have been imposed. This was because there was adequate separation distance behind the property (about 30 metres);
• the analysis in the first planning application’s case officer report was not of the standard the Council would expect;
• the stage 1 response should have recognised the confusion caused by the differences in approach between the first and second applications;
• the Council’s customer service was not of the standard it would expect, as some of X’s calls and contacts went without response;
• the Council apologised to X for the consequences of the fault but found that the decision on the second application was sound.

My findings

22. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
23. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
24. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
25. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
26. I should not investigate this complaint further, and my reasons are as follows:
• I have seen no evidence of fault in the way the second application was decided. Before the Council decided the retrospective planning application, it considered the plans, relevant policy, material planning issues and the site history. This is the process we expect. The case officer did not recommend a condition controlling all first-floor windows and in the absence of fault I cannot say the Council’s judgement was wrong.
• There may have been fault in the way the original application was considered and decided, as the Council suggested the condition requiring obscure glazing on all windows was unnecessary. However, this is not the application that was followed or built, and so I cannot show it made a difference to the outcome. If there was fault, it was rectified by the second decision, which removed the condition.
• The Council has already apologised for the confusion caused by the lack of explanation in some of its reports and letters, and for failings in its customer service response. Even if we were to find fault here, it is unlikely we would recommend any further remedy for X.
• Planning authorities do not normally impose conditions where there a such significant separation distances between habitable rooms. The new house is alongside X’s home. While X does now have bedrooms overlooking their garden from the new windows, this is not an unusual situation, and we could not say it causes an injustice we should remedy.

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Final decision

27. I ended my investigation because it was unlikely to result in a different outcome or a remedy for the complainant.

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Investigator's decision on behalf of the Ombudsman