Summary: The Council took too long to decide a planning application. This meant that Mr B suffered a loss of privacy for longer than necessary from his neighbour’s new extension. The Council has agreed to apologise to Mr B and pay him £500 in recognition of the impact on him. There was no fault in how the Council decided the application or in the enforcement action it took when the neighbour breached the planning permission.

The complaint

1. Mr B complains the Council:
• Failed to properly assess the planning application for a rear extension to the neighbouring house; failed to take account of the impact on his privacy; and failed to notice that the ground levels were not properly stated on the plans.
• Failed to take effective action when the planning permission was breached and later when planning conditions were breached.
2. This meant that Mr B had to suffer a loss of privacy from the facing window of a new extension which allowed views into his garden and living room.

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 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)
4. 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)

Back to top

How I considered this complaint

5. I considered the information provided by Mr B and his son who is assisting him. I considered the information provided by the Council including its file documents. Both parties have had the opportunity to comment on a draft of this statement. I have taken the comments of both parties into account.

Back to top

What I found

6. Planning permission is required for the development of land. Planning permission may be granted subject to conditions relating to the development and use of land.
7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

What happened

8. Mr B lives in a residential area. His neighbour applied to convert and extend the garage. Mr B’s property does not adjoin his neighbours house, but the side elevation of the extension and of Mr B’s home face one another. The Council notified the neighbours including Mr B. He asked the Council to send the plans, but the Council told him to view these online or at the offices.
9. The Council granted planning permission. When the building was underway, Mr B complained to the Council that it had not protected his privacy. There was a window on the side of the extension facing Mr B’s home that had views over the boundary fence into his living room and garden. Mr B complained to the Council on 29 April and by 1 July, the Council agreed that the actual ground levels were significantly different to those shown on the approved plan; it was not built in accordance with the approved plans and so was unauthorised; and the window resulted in an unacceptable loss of privacy.
10. The Council asked the neighbour to submit a retrospective planning application, showing the true ground levels and the window facing Mr B’s home be obscurely glazed. Mr B objected to the planning application. He said the fence at six foot offers no privacy; that the neighbour proposed to only partially obscurely glaze the window but this is without basis in planning terms and so the window should be removed; and the application should be referred to the planning committee for a decision.
11. The Council’s planning report sets out the officer’s assessment of the application. It said that the facing window will be obscurely glazed fully and fixed shut to protect Mr B’s privacy. There will also be a 1.8 metre fence along the boundary to mitigate overlooking from the raised patio area at the rear of the new extension. For this reason, the Council considered the extension acceptable and granted planning permission. It attached planning conditions, that it must be built in accordance with the plans (which included details of the fence), and that the window must have obscure glazing and be fixed shut. The neighbour had submitted the planning application on 18 July 2018, but the Council did not decide the application until 14 March 2019.
12. Two months later, at the beginning of May 2019, Mr B complained to the the Council that the window facing him was openable and had clear glazing, and that the neighbour had not erected the new fencing and the existing was much lower. The Council visited the property and made several attempts to contact the neighbour to inspect the work, but these were unsuccessful. The Council visited Mr B’s home on 28 May to assess whether the planning conditions had been breached. It found that these had been breached and it wrote to the neighbour requiring him to comply by 1 July.
13. Although the neighbour told the Council he intended to appeal against the condition, he did not. The Council checked with Mr B and he confirmed that the fence and window had not been changed. By the Council’s visit on 17 July, the fence had been erected but the window still had clear glazing. The Council served a breach of condition notice on the neighbour on 24 July. This required him to comply with the planning condition within four weeks.
14. The Council visited the site again and kept in contact with the neighbour. It was confirmed on 3 September that the window had been changed to a fully obscurely glazed and a fixed window.
15. Mr B says the fence does not comply with the approved plans or the planning condition and does not adequately protect his privacy. He says the Council did not measure the fence from the finished floor levels but from the concrete base of the patio. Once the patio was laid the fence was only 1.7 metres from the finished floor level.
16. Mr B also says that only the lower part of the fence is close boarded, and the top part is trellis, but this is not what is shown on the approved plan.

Was there fault by the Council causing an injustice to Mr B?

17. The Council has acknowledged that it was at fault. It took too long to decide the second planning application. Although the Council did not take enforcement action, the second planning application was to remedy a breach of planning control. This was part of enforcement action and meant that Mr B had to suffer a loss of privacy for longer than was necessary. This caused him distress and frustration. The Council has accepted that it delayed here and has proposed a remedy detailed below.
18. There was no fault in the Council’s decision to remedy the unauthorised development by seeking a planning application. This was in accordance with government guidance.
19. There was no fault in how the Council decided the key issues. Although Mr B would prefer the facing window to be removed, the Council has inspected the site and considered the impact on his privacy. Its planning report shows that it took into account:
• that the window faces Mr B’s extension and most likely allows views into his living room;
• the distance between the new window and Mr B’s property; and
• that there would be a new boundary fence.
20. The officers reached a decision based on its visits to the site, a correct understanding of the relationship between the buildings, and proper consideration of the impact on Mr B’s privacy. There was no flaw in how the Council decided that the window could remain as long as it is obscurely glazed and fixed shut. I have no basis to criticise its decision.
21. The Council also investigated whether the new fence is in accordance with the approved plan. I have looked at the plan again and asked the Council for its explanation.
22. The plan shows the lower part of the fence as vertical close boarded panels. The height of these step down in line with the different levels of the back garden. The upper section of the fence is shown at a constant height of 1.8 metres and with horizontal lines. Mr B interprets this to be a horizontal close boarded section. The Council interprets this part to be trellis. Mr B says trellis does not protect his privacy and this was the reason for the condition.
23. It would have been more helpful if the plan had clearly shown whether the upper part of the fence was trellis. However, it is for the Council to decide whether the fence accords with the plan and whether the fence is sufficient to maintain an acceptable level of privacy. The Council has inspected and measured the fence. Its decision that the plan shows part close boarded and part trellis is a reasonable interpretation and there is no fault in how the Council decided this.
24. Mr B makes the point that the plan shows the top line of the fence at a constant height, despite that the ground level steps down at it extends to the rear. He has sent me photographs that show the top line is not constant and steps down in line with the ground levels. This is not what is shown on the approved plan. He also tells me the overall height was wrongly measured and the height from the finished floor level is around 10cm short.
25. I have not investigated this further. If there is a small difference in the overall height this is unlikely to warrant enforcement action. And so, it would be disproportionate for me to investigate further whether the Council has properly decided that the alleged breach.

Agreed action

26. The Council has acknowledged that its delay in deciding the second application caused Mr B distress and frustration. It also meant that Mr B suffered an avoidable loss of privacy during that period. The Council has offered to pay Mr B £500 in recognition of the impact on him. This is a reasonable way to settle this complaint. It should apologise to Mr B and make the payment within a month of my final decision.
27. The Council should provide the Ombudsman with evidence that it has taken the agreed action.

Back to top

Final decision

28. I have completed my investigation. There was fault by the Council causing injustice to Mr B.

Back to top

Investigator's decision on behalf of the Ombudsman