The Ombudsman's final decision:
Summary: Mr X complains the Council failed to conduct neighbour notification for proposals received to develop a neighbouring property. Mr X also complains about the Council’s subsequent handling of the planning applications received. The Ombudsman finds no evidence of procedural fault in the matters complained about and does not uphold the complaint.
- The complainant, whom I will call Mr X, complains about the Council's handling of his neighbour's applications for planning permission in 2016 and 2017.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
How I considered this complaint
- During my investigation I have:
- Discussed the complaint with Mr X and considered any information he submitted;
- Made enquiries of the Council and considered its response;
- Consulted any relevant planning law and guidance; and
- Issued a draft decision and considered comments received before making a final decision.
What I found
- In December 2016 the Council refused planning permission sought to extend a property close to Mr X’s home. The property in question was a bungalow built on infill land. This meant the bungalow was on higher land than surrounding properties. The Council refused the permission sought for a single-story side and rear extension because of concerns about the roof design. The Council’s website shows no formal objections made in response to the application.
- Mr X and other neighbour, whom I will call Mr Y, spoke to the planning officer to raise general concerns after they learnt about the refusal. Mr X says the officer assured him that future applications would not be approved.
- The owners of the bungalow submitted a second planning application in February 2017. Mr X and Mr Y say they were unaware of this second application because they did not receive any consultation letters, nor did they see any site notices.
- The Council granted planning permission. Mr X and Mr Y complained the Council’s analysis of the second application merely “rolled forward” the same wording as the previous report, and that the planning officer had not applied their mind to the specific effects of the proposal.
- The owners of the bungalow decided to substantially demolish the dwelling and fully re-build the site with the approved extension. They did not seek permission before starting the works. The Council visited the site. The owners then submitted a third planning application in August 2017. This application had some additions when compared with the permission previously granted. It proposed an additional:
- three Velux windows to the front
- roof light to the rear
- bi-fold door to the rear instead of the proposed French doors
- increase in ridge height to side and rear of 0.5 metres
Was there fault in the Council’s actions causing injustice to Mr X?
- The Council says it was not required to issue neighbour notification letters for the first and second planning applications because of the policy it had in place at the time. Instead the Council displayed public site notices at a location near to the application site. This is in accordance with the requirements of the legislation, which states that consultation should take place “by a site notice in at least one place on or near the land to which the application relations for not less than 21 days or by serving a notice on any adjoining owner or occupier”. There is not a requirement for both.
- The Council then changed its procedure in August 2017. It now chooses to send neighbour notification letters to those immediately adjacent to any development.
- Upon learning of the third application, Mr Y submitted a written objection. Amongst other points, Mr X raised concerns that the additional height would increase overlooking because the proposed accommodation over the garage has windows to the front and side, allowing uninterrupted views into his garden.
- Mr X says he did not respond to the first and second applications because the Council had not consulted him. He claims that the notice for the third application was displayed after the deadline, however he has provided no evidence to support this claim. The Council has provided copies of all three notices. It has also provided photographs of the second and third notices in situ, and a map to confirm the location of the first notice. On balance, and in the absence of any evidence to the contrary, I do not find fault with the Council’s method of consultation
- Mr X says the bungalow in its previous form did not cause direct overlooking. However the approved plans include a large square window above the garage. Mr X says the occupants will have uninterrupted views from this window into his daughter’s bedroom and bathroom. The window is not obscure glazed. Mr X says he asked the neighbour to glaze the window to create some privacy, but the neighbour refused.
- Mr X complains the Council failed to assess the impact of the window when approving the plans. The window in question is not included on the first plans, but it did appear on the second plans. Whilst the planning officer did not give specific consideration to the window, the report written in response to the second plans notes the “…separation distance between the application property and neighbouring properties the proposed development was not considered to harm the residential amenities of the adjoining occupiers”.
- When writing the third report, the officer added the following statement: “the proposal sees the raising of the South West flank and rear elevation and the addition of Velux roof lights. As this part of the roof is located approximately 22 metres from the dwelling at [Mr X’s address] and 25m from the dwelling at [Mr Y’s address] the raising of the ridge height would not have any detrimental impacts on the amenities of these occupiers sufficient enough to refuse the application”.
- The Ombudsman expects officers’ reports to include a reference to, and an analysis of, all material planning considerations engaged by the process. Any material planning matters raised in letters of objection are engaged by the process. Mr X raised general concerns about the windows and the impact on his garden, but made no reference to his daughter’s bedroom.
- The officer’s report gives due regard to the supplementary planning guidance and the relevant local plan policies. The report also shows the officer’s analysis of neighbour amenity and privacy. The officer measured the distances and found these provided adequate separation. Retrospectively the Council has given some further analysis of this point, noting that the view between windows is screened by existing vegetation. Mr X disagrees. He has provided photographs to the Ombudsman which show some hedging, but this does not appear high enough to obscure the views from the window. It is not possible from the photographs to assess the distance between windows, although it does appear that the window is positioned at a slightly oblique angle.
- The report did not provide a specific analysis regarding the impact of the square window on the bedroom of Mr X’s daughter, however Mr X did not raise this as an objection. I therefore find the officer’s report gave an appropriate overview of the material planning matters engaged by the process. In any event, I consider it is unlikely the outcome of the planning application would have been any different had Mr X raised objections about the impact on his daughter’s privacy. This is because the officer correctly considered overall amenity and privacy. The officer also measured separation distances between properties and found these to be acceptable. I appreciate that Mr X feels the plans are erroneous, meaning that the distances cannot be measured accurately, but he has not provided any evidence to support this assertion. The Council has considered this point. It has visited the site several times and considers the plans are accurate. This is a matter of professional judgment.
- Furthermore, the distances shown in the scaled plans exceed those quoted in ‘Mayor of London Supplementary Planning Guidance’ (SPG) which sets out how applicants in the London boroughs should ensure adequate levels of privacy when designing residential development. The SPG is not a set of statutory rules which must be adhered to in all cases, but it provides examples of good practice for planning authorities to consider. The SPG says that “in the past, planning guidance for privacy has been concerned with achieving visual separation between dwellings by setting a minimum distance of 18-21m between facing homes (between habitable room and habitable room as opposed to between balconies or terraces or between habitable rooms and balconies/terraces). These can still be useful yardsticks for visual privacy, but adhering rigidly to these measures can limit the variety of urban spaces and housing types in the city, and can sometimes restrict density”
Weight given to previous approvals
- Mr X complains the Council gave too much weight to the previous planning permission. He argues that the demolition of the bungalow rendered the previous planning permission “null and void” and so the Council should not have given weight to this when assessing the third application.
- The owner was required to obtain planning approval for demolition of the bungalow. The owner did not obtain this before starting the works. The planning system allows for applications to be made retrospectively, which is the course of action taken in this case. It was not fault for the Council to accept and consider the retrospective application made.
- When assessing that retrospective application, the Council had to consider the planning history. The demolition works did not invalidate the previous permission granted as Mr X suggests. This permission remained valid and relevant, unless overturned by the Planning Inspector or quashed by the Courts. The developer therefore had a fall-back position whereby he could rebuild the bungalow to the specification of the second plans. Instead the developer wanted to make some amendments. The Council decided that it could not accurately measure and assess the new proposal to increase the ridge height because much of the existing structure had been demolished. Permission was required for the demolition. The Council therefore advised that a third application was required. This is not fault.
- When assessing the third application, the primary matter for the Council was the impact of the amendments laid out in paragraph nine of this statement. The Council found that these amendments were not significant enough to warrant refusal, and the development did not significantly impact on neighbours’ amenity. I recognise that Mr X disagrees with this approach, but it is not procedurally incorrect and I do not find fault.
- I have completed my investigation with a finding of no fault for the reasons explained in this statement.
Investigator's decision on behalf of the Ombudsman