Summary: Mr X and Mrs Y complain the Council failed to carry out a full assessment about overlooking and privacy issues with new neighbouring flats. We find fault with the Council for delay in completing the investigation and the complaint response, and poor communication. This caused frustration and distress to Mr X and Mrs Y, and we have agreed remedies for the injustice.

The complaint

1. Mr X and Mrs Y complain the Council failed to carry out a full assessment of the screening necessary to reduce overlooking and privacy issues with new neighbouring flats.
2. They brought a complaint to the Ombudsman previously and part of the remedy agreed was for the Council to carry out a full assessment.
3. Mr X and Mrs Y would like the Council to mitigate the impact of the loss of privacy with the new flats looking directly into their home.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’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 Mr X and Mrs Y’s complaint and supporting information and have spoken to them about the complaint.
7. I have considered the Council’s response to Mr X and Mrs Y, and to my enquiries.
8. Mr X, Mrs Y 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

Planning law and Guidance

9. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include loss of privacy, overbearing, and the impact on to neighbouring properties.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. If something has not been built in line with the plans the council approved and the planning permission it granted, it can take enforcement action.
13. Government guidance explains how councils should use their planning enforcement powers. Enforcement action should only be taken if it would be a proportionate response. In reaching a decision, councils should consider what harm is caused to the public by the unlawful development. If a council decides it would approve an application for the development, further enforcement action is not likely to be in the public interest.
14. Balustrades are a row of small columns, topped by a rail usually forming an ornamental parapet to a balcony or terrace.

Council’s complaint procedure

15. The Council will acknowledge the complaint within three working days and send a response within 20 working days.
16. If the complainant is not satisfied with the stage one response they can ask for a review within 25 working days.
17. A member of the complaints team will review the complaint and agree a response with the Assistant Director or Director of the relevant service. A response will be sent within 25 working days.

What happened

18. Both Mr X and Mrs Y bring this complaint. However I will refer to the complainants as Mr X for ease of reading.
19. A development of flats were built next to Mr X’s property. The flats look directly into the front of Mr X’s property, and as a result he is not comfortable leaving the blinds or balcony doors open.
20. In 2021 Mr X made a complaint to the Ombudsman about the loss of privacy caused by the development, and other issues (see 21003093).
21. As part of the Ombudsman’s remedy for the complaint, the Council agreed in March 2022 to start a new investigation to include an assessment of the screening necessary to reduce overlooking and lack of privacy, and to accept a new complaint from Mr X if he makes one after the investigation is complete.
22. The Council’s investigation report is dated May 2022 and it apologised for the mistakes made in the planning application process. These included:
• Mistakes in the Committee Report that the proposal had been amended to obscure the windows up to 1.4m high to reduce overlooking after some objections were received;
• Incorrect drawings presented by the developer which the Council relied on when recommending approval to the Committee, which show a gap between the buildings;
• The approved plans show screens at first and second floor level which would prevent some views of the neighbouring property but would not prevent overlooking when people are standing up. There was a failure to identify this in the planning assessment. Further the screening is of a lower height than is normally required to avoid overlooking;
• No conditions were imposed to require the screening to be provided and maintained;
• The developer filed revised drawings which were meant to move the balconies so they are angled away from the neighbouring residents, but this failed to achieve its purpose as the substantive overlooking and loss of privacy remains the issue; and
• “In granting the planning permissions, the Council did not get the judgment correct in assessing the overlooking and loss of privacy harming amenity, especially with regards to distance and layout.”
23. The Council sent two people to measure the distance between the two buildings for the planning enforcement case, which showed the new build is closer to Mr X’s property by 10cm.
24. Mr X asked the Council to serve an enforcement notice for the flats to be built in accordance with the planning permission, but there would still be some overlooking.
25. The Council told Mr X it would not be proportionate to serve an enforcement notice to demolish the three-storey property and rebuild it in line with the permission. It said the developer would likely appeal and potentially go through the Courts, which could take years to settle.
26. During the Council’s investigation Mr X asked the Council to recommend the developer increase the screening, but the Council said it does not have jurisdiction to do this as it would be higher than stated in the planning permission.
27. The Council said in the investigation report it would try and mitigate the loss of privacy for Mr X, by speaking with the developer.
28. During our enquiries we reviewed emails between Mr X and the Council. The Complaints Manager at the Council visited Mr X’s property on 20 June 2022 and sent an acknowledgement of the stage one complaint the next day.
29. The stage one complaint from Mr X to the Council was:
• No full assessment of the screening necessary to reduce overlooking and privacy issues had been carried out;
• The report says “screening is lower than what is normally required to avoid overlooking”. Mr X would like the screening to be brought up to at least the “normal” requirement.
• No conditions were imposed to require the screening to remain in place. The screening is sticky film and is not a permanent solution.
30. The Council emailed Mr X in July and said a planning officer would be looking into his complaint. It said it would take longer to respond because of an emergency in the borough. The Council said the planning officer would like to meet with Mr X at his property, and then respond to the complaint.
31. The meeting took place in early August. Mr X contacted the Council for a response in mid-August and the planning officer said in early September he would respond shortly.
32. Mr X contacted the Council again in mid-October. The planning officer responded on the same day and said he “intended to contact the developer today to explain I require a meeting as I am not prepared to discharge the conditions until the environment is improved for you by way of additional screening. I will let you know when the meeting takes place.”
33. Mr X chased in early November. The planning officer responded in mid-November attaching boundary plans and landscaping plans he was considering. He asked Mr X for any comments but did not mention the meeting with the developer.
34. Mr X responded in mid-November and said the planning officer had not mentioned the screening. The planning officer said he was not sure what more he could reasonably suggest as “the balustrades are at a height that would usually be accepted and those at the upper level are higher than would usually be requested.”
35. Mr X asked if the Council would carry out the full screening assessment necessary to reduce overlooking and his lack of privacy as agreed with the Ombudsman. The Council said in its report the “screening is lower than what is normally required to avoid overlooking”.
36. The planning officer responded in late November asking if Mr X would agree to him discussing with the developer 1.7m high balustrades.
37. Mr X asked the planning officer to answer his previous questions. Mr X said earlier in 2022 on a site visit he and someone from the Council spoke directly with the developer and asked if it would consider installing 1.7m high balustrades to the top floor and the answer was “no”. Mr X said anyway this would still allow for overlooking from the other balconies due to gaps in the screening.
38. The planning officer responded saying he would issue a formal stage one complaint response within a week.
39. The formal complaint response dated 29 November said:
• The issues of overlooking, privacy and screening are matters of planning judgment for the Council to consider during site inspections. The planning officer came to the property in early August and carried out the full assessment. The complaint that no full assessment has been carried out is not upheld.
• The report said “screening is lower than what is normally required to avoid overlooking”. However the Council does not apply specific “space around dwellings” standards due to the urban environment. There is no minimum size specified for balustrades to avoid overlooking. However the case officer has secured an extra 50mm in height. The screening therefore exceeds that shown on the permitted drawings so this is all that can be reasonably done by the Council. This complaint is not upheld.
• Having reviewed the planning decision notice there are no conditions requiring retaining balustrades. The report detailed the issues of neighbouring amenity. Members did not consider it necessary to impose a condition to obscure the balustrades, so this was not included in the terms of consent. There is no reason to believe the members were not fully aware of this when making the decision so this complaint is not upheld.
• The planning officer accepts the Council has been criticised for the handling of this application and apologises for any adverse impact this has had. The Council “has brought in new members of staff to boost resources and created a new tier of principle planners which has enabled the team to handle the large volume of applications and ensures the junior members of staff are well coached.”
40. Mr X was unhappy with the Council’s response so he raised a stage two complaint on 2 December. The Council responded on 24 January 2023 re-iterating its stage one response. Mr X then brought his complaint to the Ombudsman.

Analysis

41. The report carried out by the Council in May 2022 accepts mistakes made by the planning committee when considering planning permission for the new flats. It said it would consider alternatives to mitigate the loss of privacy (see paragraph 28).
42. The report was supposed to be completed in April 2022, a month after the Ombudsman’s final decision. It was a month late and this is fault.
43. The only option given by the Council was to ask the developer about raising the balustrades to 1.7m in height, which had already been done before the report was completed. However there is no more the Council could do so I cannot find fault.
44. The meeting with the planning officer and Mr X in August was the assessment of the screening. This was not made clear to Mr X and it was late. It was supposed to take place a month after the Ombudsman’s decision (April 2022). This is fault causing confusion to Mr X.
45. The planning officer said he would arrange a meeting with the developer (paragraph 33) as “I am not prepared to discharge the conditions until the environment is improved for you by way of additional screening”. This shows that he understood Mr X’s lack of privacy. However I have not seen any evidence that a meeting took place, or if it did, no record of what was discussed. This is fault as the Council failed to keep contemporaneous notes, and failed to keep Mr X informed, causing him distress and frustration.
46. Mr X brought a complaint to the Council as he was unaware the assessment had taken place, and the Council had not told him of any actions it would take to mitigate the loss of privacy.
47. The Council failed to address Mr X’s questions, specifically where the report says “the screening is lower than what is normally required to avoid overlooking”, but the complaint response says “there is no minimum size specified for balustrades to avoid overlooking.” This is contradictory and fault by the Council causing confusion to Mr X.
48. The complaint response says the planning officer had “no reason to believe they were not fully aware of this (the issue of neighbouring amenity) when making the decision”, however the report says the Council did not get the judgment correct in assessing loss of amenity. Again this is contradictory and fault by the Council causing confusion to Mr X.
49. The acknowledgement to the complaint was sent on 21 June, but the stage one complaint response was not sent to Mr X until 29 November. This was a delay of five months and significantly longer than the 20-day Council complaint policy timescale (see paragraph 15). This is fault causing Mr X frustration and distress.
50. The stage two complaint response was also longer than the 25-days in the policy (see paragraph 17), which is fault.
51. The Council did get the developer to raise the screening by 50mm’s, but this has not had a significant effect on the overlooking issues.
52. The Council did carry out the full assessment, and has done what it can in the confines of its powers in speaking with the developer.
53. I find fault with the Council for delay in completing the investigation report and complaint response, and for poor communication with Mr X throughout the process.
54. The Council’s own investigation brought up numerous faults in the planning application process. It is not possible to take any other remedial action to lessen the effects of the flawed decision so I suggest a payment for loss of amenity to Mr X.

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Recommended action

55. Within one month of the Ombudsman’s final decision, the Council should:
• Write a personalised apology to Mr X and Mrs Y for the faults identified above;
• Pay Mr X and Mrs Y £250 for the distress and frustration caused by the faults above;
• Pay Mr X and Mrs Y £200 for the time and trouble involved in bring his complaint;
• Pay Mr X and Mrs Y £4000 for loss of amenity caused by the flaws in the planning application process. The total payment to Mr X and Mrs Y is £4450.
56. Within three months of the final decision the Council should:
• advise what it has done to ensure these errors do not occur in further planning applications and assessments;
• remind relevant staff about the timescales for its complaints procedure.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I find fault with the Council for delay in the complaint response, lack of remedy and poor communication. I have suggested remedies for the injustice caused to Mr X and Mrs Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman