Summary: Mr X complained the Council failed to enforce a planning condition requiring translucent glazing which has resulted in overlooking and a loss of privacy to Ms Y’s property. The Council’s failure to properly consider the details submitted to discharge the planning condition and the approval of clear rather than translucent glazing is fault. This fault has not caused Ms Y a significant injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complains on behalf of Ms Y that the Council failed to enforce a planning condition requiring translucent glazing which has resulted in overlooking and a loss of privacy to his clients’ properties.
2. Mr X also complained the Council failed to consult Ms Y in relation to an application to discharge conditions, contrary to its normal practice.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I 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. I 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)
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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

6. The Council granted planning permission, subject to conditions for a change of use, alterations to a building and the demolition of a second building at a site to the rear of Ms Y’s property. The case officer’s report noted a first floor study would be made of translucent glass to ensure there would be no overlooking. It was a condition of the planning permission that the developer submit details and samples of the translucent glass to be used for approval by the Council. A further condition required the developer to submit detailed drawings of fenestration for approval by the Council before works commenced.
7. A subsequent application to vary elements of the permission was granted, subject again to conditions on details of the translucent glazing for the study and drawings of the fenestration,
8. The developer then applied to discharge a number of conditions, including those relating to fenestration and the glass for the study. The drawings submitted with this application showed clear glazing to parts of the study. The Council approved the application and works began on the site.
9. In early 2020 Ms Y complained to the Council that the developer had installed clear glass in the first floor study. A planning enforcement officer, Officer 1 contacted the developer’s agent referring to the original planning permission and advising that if clear glazed windows have been installed they would need to be replaced with translucent glazing.
10. The agent provided a photograph of the site and confirmed they had installed translucent glass on the south facade and clear glass in all other windows in accordance with the approved drawings submitted in the discharge of conditions application.
11. Officer 1 noted the condition regarding translucent glazing was imposed as the introduction of rear facing windows created direct overlooking onto the properties located directly behind. They noted the Council has overlooked this requirement when the details application was discharged. Officer 1 advised the owner’s agent they would seek advice on whether there were grounds to take enforcement action and asked to arrange a site visit to assess the loss of privacy from the clear windows.
12. In July 2020 Mr X made a formal complaint on behalf of Ms Y. He noted that the drawings approved as part of the original planning application showed the study would be made of translucent white glass. And that the use of translucent glass was required by planning conditions. However the structure had been fitted with clear glass in contravention of the conditions and was causing overlooking and loss of privacy. Mr X considered this was a straightforward case of non-compliance with planning conditions. He asked the Council to instruct the developer to comply with the approved drawings and planning conditions and replace the clear glass with translucent.
13. The Council advised Mr X it was awaiting legal guidance and would then confirm its next steps. The Council asked Mr X to provide a photo of the rear of the site from Ms Y’s property showing the clear glazed windows.
14. Officer 1 contacted the site owner’s agent again in October 2020 and asked to visit the site to assess the sight lines from the study window into the residential houses behind. Given the COVID-19 lockdown restrictions in place, rather than arrange a site visit, the owner’s agent provided photographs of the view from the study towards Ms Y’s property. The agent also confirmed the owner was installing drapes over the rear window which would provide further privacy for all residents.
15. Having considered the photographs Officer 1 asked the owner to consider amending the windows to translucent glazing as intended, to rectify the loss of privacy and in the interest of good neighbourliness. The agent confirmed that it was not feasible to re-glaze the windows so the glazing would remain as it is. They reiterated that the owner intended to install curtains which would reduce the visible area of the windows.
16. As Mr X had not received a formal response to his complaint, in February 2021 he asked the Ombudsman to investigate his concerns. We referred the matter back to the Council to complete its complaints process. The Council responded to Mr X’s complaint in April 2021.
17. The Council agreed the officer’s intention in the original and subsequent variation permissions was that the rear first floor windows would have translucent glazing to protect the impact on privacy. However, the details submitted and approved showed clear glazing to these windows. Neither the case officer nor the senior officer reviewing the details picked this up. It accepted it was an error on the Council's part in approving details showing clear glazing.
18. It confirmed it had reviewed the Council’s options to remedy the situation and taken legal advice. As the Council had approved the clear glazing it had no grounds on which to pursue enforcement action. It noted that although officers intended the whole lobby to have translucent glass, this was not specified in the conditions. The approved drawings and material schedule showed only a section of the lobby would have translucent glass and the rear sections would be clear glass.
19. The Council upheld the complaint and apologised for the delay in responding to Mr X’s complaints, and for the oversight in approving clear glazing to the rear first floor windows.
20. Mr X was not satisfied with the Council’s response and asked for his complaint to be considered further. He asserted the Council’s position that there was no breach of planning permission was incorrect. The installation of clear glazing to the first floor lobby was in breach of the condition in the original permission which required translucent glazing to be installed and permanently retained. Mr X asked the Council to enforce this condition. Mr X also noted the Council had not explained why it did not consult his clients on the application to discharge the conditions.
21. The Council reviewed Mr X’s complaint and responded in late June 2021. It apologised for the delay in responding. The Council considered it important to note that the study benefits from windows to the front, side, and rear elevations and that the condition did not specify which windows had to comprise of translucent glazing. The drawing submitted with the details application to discharge the condition showed only the windows to the side elevation would be translucent glazed. The Council therefore considered the applicant had complied with what was approved and there were no grounds to take enforcement action.
22. The Council also noted there was no statutory requirement to notify neighbours on applications to discharge conditions. It confirmed the Council’s standard procedure followed this legislation.
23. As Mr X remains dissatisfied, he has asked the Ombudsman to investigate his concerns. Mr X has provided copies of photographs taken from Ms Y’s property towards the application site. He refers to the Council’s supplementary planning guidance which states new windows should be 18 metres from existing habitable rooms. If this standard cannot be met the window should be designed to ensure there is no loss of privacy. Mr X states the distance between the new window and Ms Y’s property is inadequate.
24. In response to my enquiries the Council has provided records of a site visit in February 2022 to assess the impact of the clear glazed windows on the privacy of neighbouring properties. The records of the site visit show the officer considered the impact on Ms Y’s property and took photographs of the view from the study window. They noted mutual overlooking of the gardens was already possible from existing windows of adjoining properties on Y Street.
25. The officer noted Ms Y’s property was at an oblique angle when viewed from the site and the intervening garden fences and separation distance ensured the garden retained sufficient privacy. They considered the conservatory was sufficiently screened and had obscure roof glazing, providing privacy space within on the ground floor. The upper floor windows are beyond the 18 metre separation distance normally considered acceptable.
26. When standing in the centre of the new study the officer did not consider there was unreasonable overlooking from the window, especially given the street pattern. They considered it reasonable to expect a certain amount of mutual overlooking when living in such locations with the established street pattern.
27. The Council did not notify Ms Y of the application to discharge conditions. It states the purpose of a discharge of condition application is to confirm the planning obligations established within the planning permission have been met. This is a technical exercise, and the Council does not consult the public on applications of this type, nor is there a statutory requirement to do so.
28. In response to the draft decision Mr X has reiterated his view that the Council is wrong to conclude that the use of clear glass is not a breach of the planning condition which clearly requires translucent glass. He asserts that with one exception, the details provided to discharge the condition indicate that the rear windows would be fitted with translucent glass. Mr X states the only inconsistency is the notation on the approved drawing that states “clear double glazing” despite referring to the materials schedule which specifies translucent glazing for the window.

Analysis

29. There is no dispute that when granting planning permission the Council intended that the rear first floor study would have translucent glazing to protect the impact on privacy. The Council accepts that officers reviewing the details submitted to discharge the condition overlooked this requirements and approved details showing clear glazing in error. The failure to properly consider the details submitted to discharge the condition and the approval of clear rather than translucent glazing is fault.
30. Although it was not the Council’s intention, as it has discharged the condition to allow clear glass in sections of the study, the Council asserts it cannot now require the owner to reinstall translucent glass. The approved drawing shows clear double glazing to three sections of the study and translucent white double glazing to a fourth section. The materials schedule specifies translucent glazing for a section of the window, rather than the whole study. It considers that as the owner has complied with the drawings and materials schedule approved under the application to discharge the conditions, which show only a section of the study will be translucent glass, there is no breach of condition.
31. Mr X disagrees and maintains the installation of clear glazing is in breach of a condition of the original planning permission which clearly requires translucent glass to be installed and permanently retained.
32. It is not the Ombudsman’s role to decide whether there is a breach of planning control, or whether Council can or should take enforcement action; that is the Council’s job. We can only consider whether the Council assessed the situation correctly. We cannot criticise a council where officers have followed the correct procedures and reached a reasoned decision.
33. The Council has reviewed all of the permissions and approved drawings and taken legal advice on its options. Based on this advice the Council has concluded the owner is not in breach the planning conditions and it cannot take enforcement action. This is a decision the Council is entitled to take.
34. Mr X asserts that as a matter of fairness and consistency the Council should have consulted Ms Y on the application to discharge the conditions. And that had it done so the problems with the glazing could have been avoided. There is no statutory requirement to publicise applications to discharge conditions and I have not received any evidence it is the Council’s practice to consult on such applications. We would not therefore criticise the Council for not consulting Ms Y on the application to discharge conditions.
35. Mr X also complains about the way the Council has dealt with his complaint. He first complained to the Council in July 2020 but did not receive a substantive response. I consider this to be fault. The Council did not respond to Mr X’s complaint until he asked the Ombudsman to intervene. Mr X complains that the officer who investigated his complaint at stage two of the complaint process was not qualified in planning and did not have the expertise or experience to carry out an independent investigation. He asserts that only a qualified town planner or lawyer familiar with planning law can make such an assessment.
36. The Council’s corporate complaint policy states the stage two investigation will be carried out by an officer who has not previously been involved in the matter. This will normally be a senior investigating and information officer who is independent from the original service. The Council investigated Mr X’s complaint in line with this policy. In investigating Mr X’s complaint we would expect the officer to review the documentation and where appropriate speak to the planning officers. There is no evidence of fault in the way the officer investigated Mr X’s complaint. It is however disappointing that the Council did not meet its published timeframes for responding. I note the Council apologised to Mr X for the delays.
37. Having identified fault I must consider whether this has had a significant impact on Ms Y. The Council imposed a condition requiring translucent glazing in order to prevent overlooking and loss of privacy. I recognise that in the absence of translucent glazing the residents to the rear of the site will be concerned about the extent to which their gardens and properties are overlooked. The Council is satisfied having visited the site and viewed their properties from the glass study that there will not be unreasonable overlooking or loss of privacy, particularly in the context of the established street pattern.
38. The photographs do not show unacceptable overlooking from the glass study towards Ms Y’s property. Given the separation distance and the oblique angle I do not consider Ms Y has suffered a significant injustice as a result of the Council’s fault.

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Final decision

39. The Council’s failure to properly consider the details submitted to discharge the planning condition and the approval of clear rather than translucent glazing is fault. This fault has not caused Ms Y a significant injustice.

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Investigator's decision on behalf of the Ombudsman