Summary: Mr X complained the Council did not provide him with notice of the changes to the planning permission for the proposed properties next to his. The Ombudsman does not find fault with the Council for not telling Mr X of changes to the planning permissions. Mr X also complained the Council failed to consider the impact on his amenity and privacy of a balcony proposed as part of the plans for the development. The Ombudsman found fault as the Council failed to consider the impact of the balcony on Mr X’s privacy. The Council should offer to plant a tree on Mr X’s land to act as a screen. The Council should also provide Mr X with an apology and a payment of £100 for the frustration and inconvenience caused.

The complaint

1. Mr X complained the Council did not provide him with notice of the changes to the planning permission for the proposed properties next to his.
2. Mr X complained the Council failed to consider the impact on his amenity and privacy of a large balcony proposed as part of the plans for the development.
3. Mr X also complained the Council failed to respond to any his contacts after May 2020.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
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 have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Both Mr X and the Council provided comments on my draft decision. I have considered their comments before making my final decision.

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What I found

The Law

8. When a council makes a decision on a planning application it can only take certain issues into account. These are often referred to as “material planning considerations.” Examples of material planning considerations include:
• Local and national planning policies.
• Loss of sunlight.
• Overshadowing, overlooking or loss of outlook and privacy.
• Highway issues.
9. Boundary disputes and damage to property are a private matter between neighbours and are not material planning considerations.

The Council’s Policy

Planning Applications

10. On receiving a planning application, the Council will check the application to decide if the applicant has provided all relevant information. The Council will validate an application if it passes the checks.
11. Once validated, a Council will give the planning application a reference. The Council will then start the determination process. The Council must:
• Publish information about the planning application on its online planning register.
• Notify direct neighbours through either post or by notice on a nearby site.
• Notify the parish, town or community Council.
• Consider any comments provided about a planning application and any report compiled by a planning officer before deciding whether to approve a planning application.

Consideration of Privacy and Amenity

12. The Council’s Policy H12, within its Local Plan, outlines how the design and layout of new housing should not impact on existing housing. The Policy says new housing should not damage the amenity of adjoining land and premises. The Policy also says it should ensure adequate standards of privacy and outlook when considering the development of new housing.
13. The Council says it considers this policy by looking at any direct window to window facings between habitable rooms and on outlooks over a back garden. The Council says it does not consider overlooking and privacy issues from acute angles.

The Council’s Corporate Complaints Procedure

14. The Council’s procedure says the Council will try to deal with a complaint within three working days of receipt. The policy says it will treat an expression of dissatisfaction the same as a formal complaint for the purpose of this policy.
15. If the Council cannot deal with a complaint within this time, it will send an acknowledgement confirming when it will respond to the complaint.
16. The Council will respond to a formal complaint within 15 working days.
17. In more complex complaints, the Council aims to provide an internal review response within 20 working days.

Background

18. Mr Y applied for planning permission to develop three new properties on his land next to Mr X’s property in December 2018. All three of the properties had plans to include balconies at the front of the properties.
19. The Council sent a letter to Mr X’s property on 15 January 2019 advising of the application for planning permission. The Council provided details of the planning application, invited comments and advised it would provide no further notice but to check the planning application on the Council website for updates.
20. The owners of Mr X’s property, in January 2019, listed the property for sale.
21. Mr and Mrs X said the sellers did not disclose any planning works at and next to property and their solicitors’ searches did not reveal any planning works. Mr and Mrs X completed the purchase of their property in May 2019.

What Happened

22. Mr Y made changes to his planning application on 29 May 2019. These changes kept the balconies on the front of the properties.
23. The Council planning officer completed their report on 18 June 2019. This report said:
• One person commented on the planning application. The comments from this person related to a tree outside the proposed development and would have no impact.
• The development represents a sustainable location for housing in line with its policy.
• Mr Y changed the planning applications in response to Council Officer’s concerns about the impact on the visual and heritage character of the surrounding area. The Council decided Mr Y’s revisions ensured the application preserved the character of the conservation area.
• The window arrangements of the property prevented significant overlooking of neighbouring properties to avoid any loss of privacy.
• Mr Y’s revisions to the layout of the property removed any highway safety concerns.
• The Council officer recommended approval of the application.
24. The Council granted planning permission on for Mr Y’s application on the back of this report. Mr Y began construction work in line with the planning permission granted.
25. Mr X complained to the Council in December 2019. Mr X said the builder had damaged his boundary fence and installed a window which would overlook his garden.
26. The Council responded on 23 December 2019. The Council advised it invited comments on the planning application in January 2019 and granted planning permission in June 2019 without comments. The Council provided Mr X with plans for the building works and asked him to let the Council know if the builder was not acting in line with the plans.
27. Mr X complained the balcony on the property closest to his invaded his privacy. The Council confirmed on 13 January 2020 it would investigate this. The Council responded to Mr X on 6 February 2020 by providing a link to the Council Officer’s report on the planning permission.
28. Mr X complained to the Council on 21 April 2020. Mr X complained:
• The balconies built were larger than granted through planning permission.
• The Council did not contact him about the revisions to the planning permissions.
• The Council did not give thought to the impact on neighbouring amenity or privacy.
• The builder was completing works in an unsafe manner causing damage to his property.
29. The Council responded to Mr X’s complaint on 12 May 2020. The Council said:
• A Council Planning Enforcement Officer attended the site on the back of Mr X’s complaint who found Mr Y had completed works in line with planning permissions.
• It sent a letter of consultation in January 2019 which advised the Council would not send further letters.
• The Council considered privacy and amenity when approving the plans.
• Mr X would need to take civil action against the builder for damage to his property.
30. Mr X complained to the Council about the builder constructing a wall against his property. The Council advised this was a civil matter between Mr X and the builder as it fell outside planning permission.
31. From 26 June 2020 to 14 August 2020, Mr X sent 18 emails to the Council raising further concerns. The Council acknowledged Mr X’s contacts on 14 August 2020. Mr X also brought his complaint to the Ombudsman.

Analysis

Planning Application Consultation and Comments

32. Mr X complained the Council failed to advise him about the planning application made by Mr Y. Mr X also complained the Council failed to advise him about revisions to the planning application. Mr X says this meant he had no opportunity to comment on the planning application.
33. The Council provided evidence of the consultation letter sent to Mr X’s property in January 2019. When the Council sent this consultation letter, Mr X did not live at the property. On balance I accept the Council sent this letter.
34. Within the Council’s consultation letter, it invited comments from the neighbouring properties to the proposed development. The Council provided the relevant details to access the full planning application on its online portal. The Council also advised it would not send further notice about this planning application.
35. It is not the fault of the Council that both the previous owners of the property and Mr X’s solicitors failed to tell him about the planning application.
36. The Council has followed its policy and made neighbouring properties aware of the planning application. I do not find fault with the Council that Mr X was unaware of the planning application.
37. The Council had no obligation to provide further written confirmation of revisions to the planning application. I also do not find fault with the Council for not advising Mr X of the revised plans.
38. The original planning application and the revised planning application made by Mr Y both had balconies on the front of the properties. The revised plans Mr Y put forward had no greater impact on Mr X than the original plans. Even if I did find fault with the Council for failing to advise of the revision, this would present no additional injustice.

Loss of Amenity from Balconies

39. Mr X complained the balconies overlooked his property and impacted his privacy and amenity. Mr X says the Council failed to consider this in the planning officer’s report.
40. The Council should consider the impact on the privacy and amenity of pre-existing housing when considering a planning application. The Council’s policy is clear that new buildings should not damage the amenity of adjoining land and should maintain adequate standards of privacy.
41. The Council Officer’s report is specific in its reference to the window placement on the new property. The Council Officer did not consider the window placements, or placement of the property in general, caused a loss of privacy or amenity to the pre-existing adjoining land. I find no fault with the Council Officer’s assessment of the window placements as these do not impact Mr X’s amenity or privacy.
42. The Council Officer makes no reference to the impact of the balconies in his report.
43. The balconies proposed on the planning application sit at the front of the property. The proposed development sits in line with Mr X’s property.
44. The Council said the Officer’s report does not mention the balconies expressly because:
• It received no objections to the balconies.
• The balconies do not constitute habitable rooms.
• The view to Mr X’s house and rear garden is an acute angle.
45. The balconies provide a clear sight over Mr X’s front garden. Mr X’s front garden borders a road which is also a bus route. Since Mr X’s amenity and privacy in his front garden is already impacted by the road, the impact on his amenity from the proposed balconies is limited.
46. However, a planning application should not materially impact on the privacy and amenity Mr X enjoys in his rear garden and within the habitable rooms in his house. I would agree with the Council the balconies only impact on Mr X’s rear garden through an acute angle. However, Mr X has provided evidence of a direct facing from the balconies to his kitchen, a habitable room.
47. While a balcony is not a habitable room, by its nature it encourages people to sit out on it. Doing so would present an outlook directly in Mr X’s kitchen. If Mr X had objected to the impact on his privacy and amenity it is likely the Council would have considered this point more before deciding the application. This consideration would more likely than not have caused the Council to ask the developer to give some thought to screening.
48. The failure of the Council to consider the impact of the balconies on Mr X’s amenity and privacy is fault. This fault has directly caused Mr X an injustice through the impact on his privacy.
49. The Ombudsman cannot recommend action from the builder to rectify the fault of the Council. Therefore, we cannot recommend any retrospective changes to the balconies.
50. We recommend the Council obtain and plant on Mr X’s property an evergreen tree that would provide some screening between Mr X’s kitchen and the balcony. The Council’s involvement would save Mr X the inconvenience of investigating suitable species and obtaining and planting the tree.

Complaint Handling

51. The Council should have acknowledged Mr X’s complaint, or complaints, and provided a full response within the timescales it confirmed to Mr X.
52. The Council responded to Mr X’s complaints in December 2019 in line with its policy. The Council did not respond to Mr X’s complaint on 13 January 2020 within 15 working days, only providing the response on 6 February 2020.
53. The Council only provided Mr X with a link to the Council Officer’s report for the planning application. The Council did not respond in a meaningful way to Mr X’s complaint. The delay and lack of meaningful response is fault.
54. The Council responded to Mr X’s contacts in April and May 2020 in line with its policy. However, Mr X sent 18 emails from 26 June 2020 to 14 August 2020 before the Council acknowledged these contacts. The failure to handle the complaints within three working days or acknowledge the contacts is fault.
55. The complaint response in February 2020 which lacked substance and the failure to acknowledge or respond to Mr X’s emails nearly two months will have caused Mr X frustration and inconvenience. The Council should apologise to Mr X and provide him with a payment of £100 to reflect this.

Recommended action

56. Within one month of the Ombudsman’s final decision the Council should:
• Offer to obtain and plant on Mr X’s property a semi-mature evergreen tree that would provide some screening between Mr X’s kitchen and the balcony. Mr X will have up to one month from the Council’s offer to accept the offer and the Council a further three months on acceptance to plant the tree.
• Provide Mr X with an apology and a payment of £100 to reflect the frustration and inconvenience caused through the Council’s handling of his complaint.

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Final decision

57. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman