Summary: The Council has properly investigated a breach of planning permission; it is considering an amended planning application to address the breach. The Council has no control over the amenity impact from a stairwell, as it is at a development that has been granted permitted development rights by the Government. It does have an impact on Ms B, but the Council has no powers to act. The conservation area and locally listed buildings provide the Council with no extra powers to help Ms B. The Council could have dealt better with Ms B’s complaint, but I find this did not cause a significant impact and was a minor issue.

The complaint

1. The complainant, who I will call Ms B, says the Council has failed to act on planning breaches at neighbouring developments which impact on her amenity. The developments overlook Ms B’s garden and make it unusable. Property 1 has windows overlooking her property and property 2 has an external staircase overlooking her property. Ms B says her property is listed and in a conservation area, as are properties 1 and 2. Ms B says the building works have caused damage to property 2, severely impacting the frontage of her house and the conservation area. The Council gave prior approval to property 2, when it should not have done so because the property is listed. The Council did not reply to her letter of 8 April.
2. Ms B says she cannot use her garden due to overlooking and debris from the builders. Ms B has cancelled her gardener as feels no point spending money maintaining her garden when she cannot sit out there, which means her garden has become overgrown. Ms B does not wish to do the gardening herself due to the overlooking; people could watch her while she is working.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
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 considered:
• Information provided by Ms B, including during a telephone conversation.
• Information provided by the Council.
• Planning documents available on the Council’s website.
• The Town and Country Planning (General Permitted Development) (England) Order 2015. Specifically Class O – offices to dwellinghouses.
• Responses to a draft of this statement.

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What I found

7. Ms B lives next door to property 2; property 1 is on the other side of property 2. Ms B’s house and property 1 are on in the Council’s list of heritage assets in Peterborough (the local list). The local list contains properties that contribute to Peterborough’s historic environment and are considered important to the area. Property 2 is not locally listed. The local list is advisory and symbolic only and does not provide the Council with extra powers to protect those buildings.
8. None of the properties are on Historic England’s list of Listed Buildings. Listing marks and celebrates a building’s special architectural and historic interest and brings it under the consideration of the planning system, so it can be protected for future generations.
9. In 2016 the Council gave permission for development of property 1, to convert it into a house in multiple occupation. The Council considered the relevance of the local list and the conservation area on the planning application. Any concern about how the Council considered the planning application is now a late complaint, in accordance with paragraph three, as it happened three years ago.
10. The planning permission said the developer must obscure glaze and fix shut the windows facing Ms B’s property (apart from a top opening vented window to the bathroom), to protect Ms B from overlooking. The developer has fitted windows which are not obscure glazed and are not fixed shut.
11. The Council has a duty to consider planning breaches and decide whether it should take any action. The Council has investigated this breach. The developer has put in an application to vary the condition, this is a valid route for the Council to consider whether any changes are acceptable. The Council is currently considering the planning application and Ms B has put in comments for the Council to consider as part of that process.
12. The developer did not need to apply for permission to develop property 2 because it had permitted development rights. These are rights granted by Parliament rather than the Council and allow the conversion of offices to residential property.
13. Ms B argues it did not have permitted development rights because it is a listed building or is within the curtilage of a listed building. A search of the Historic England website shows this is not the case, so the property does have permitted development rights. Ms B also argues it does not have permitted development rights because it is in a conservation area. The conservation area does not stop the permitted development rights in this case.
14. Property 2 has an external metal stairwell, which was an emergency fire escape when it was offices. This stairwell overlooks Ms B’s garden. The stairwell is now the entrance to a new flat in the conversion so will regularly be in use when the flat is occupied. Ms B worries the occupiers can linger on the platform at the top of the stairwell, and possibly have a bistro table and chairs, so could look directly into her garden. Ms B wants the developer to fit a privacy screen at the top of the stairwell.
15. The permitted development rights require the developer to apply to the Council before starting the development to decide whether the Council’s prior approval is needed for:
• Transport and highways impact of the development;
• Contamination risks on the site; and
• Flooding risks on the site.
16. The developer applied for prior approval in 2016, and the Council approved it. The Council could not consider any impact on Ms B’s amenity from the development of property 2 (as explained in the bullet points above), but the Council did informally recommend the developer fit a privacy screen. Therefore, it is obvious the Council has sympathy for Ms B’s predicament and has tried to encourage the developer to take some action to protect her privacy, but by law the Council has no powers to make the developer fit a privacy screen.
17. Ms B complains about the damage done to the frontage of the properties; that the developer has smashed out windows and reduced the front to a derelict state. The photographs show some boarded-up windows at property 2. If the developer makes changes to the external building it may require planning permission. Broken windows, or boarded windows, are not development and do not come within the scope of the planning authority. While the development is ongoing there is likely to be disruption, dirt and mess.
18. The Council at first dealt with Ms B’s concerns as a planning enforcement case, which is correct. However, Ms B then sent further correspondence referring to her complaint, but the Council did not put it through its complaint process and kept referring it to the relevant departments to answer. It took nearly a month for the Council to respond to Ms B’s letter of 8 April, by which time she had referred her concerns to the Ombudsman. The Council did then log the case as a complaint, but the Ombudsman took the view the Council had received plenty opportunity to resolve Ms B’s complaint and it would be unfair to refer Ms B back to the Council.

Was there fault causing injustice?

19. I have sympathy for Ms B, the developments impact on her use of her garden, but I cannot say that is because of fault of the Council.
20. The Council is acting on the planning breach about the windows at property 1. The Council said the windows should be obscure glazed and fixed shut to protect Ms B’s amenity, but the developer has not fitted such windows. Some of the flats only have one window, and therefore those flats could not be occupied if the windows cannot be opened as an emergency escape. The Council is now considering whether the changes the developer proposes are acceptable. The Council may decide to allow windows that can be used in an emergency but have a restrictor on them to prevent occupiers opening them wide at other times. Or the Council may decide it is not acceptable to have windows that can open because of the impact on Ms B’s amenity.
21. The fire escape at property 2 undoubtedly has the potential to impact on Ms B’s peaceful enjoyment of her garden, but because of the law on permitted development rights the Council has no control over that development. The Council could not refuse it based on the impact on Ms B’s amenity, or put any mitigation in place, because the Government has allowed this development without any consideration of neighbour amenity. The Council tried its best by bringing the issue to the developer’s attention and asking it to put up a privacy screen, but it can do no more than that.
22. I have seen photographs of debris in Ms B’s garden, but that is not something the Council has any control over. That is a private matter between neighbours (Ms B and the developer), and Ms B would need to seek legal advice about any available options against the developer.
23. I do not find the Council adequately dealt with Ms B’s complaint. Ms B was clearly raising her concerns as a complaint, and I believe the complaints department should have given a formal response much sooner. However, I do not find Ms B was significantly disadvantaged as she received responses from the relevant departments (although the response times may have been longer than expected). The Ombudsman decided to investigate the complaint rather than refer it to exhaust the Council’s complaints procedure first, so the whole complaints process has probably not taken any longer than it would have done had the Council dealt with it as a formal complaint sooner. The Council has said it will improve its practice by sending complaint matters to the planning department in a shorter timeframe, and accepting planning complaints into the complaints department unless there is a clear alternative appeal route.

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Final decision

24. I have completed my investigation on the basis there was no significant fault by the Council.

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Investigator's decision on behalf of the Ombudsman