Summary: Ms X and two neighbours complained about the impact of a development of new houses built behind their homes. We did not uphold the complaint finding no fault in the Council's consultation about the development, nor for how it assessed the impact of the development before giving planning permission. It had also considered properly concerns the development as built, differed from the approved plans.

The complaint

1. Ms X, Mr Y and Mr Z complained about the impact of a new housing development built behind and / or to the side of their homes. They complained the Council:

• did not consult them about the development;
• approved the new homes too close to their own;
• did not take enforcement action, as they found the new homes were closer to their own than shown on the approved plans.

2. The complainants said the new houses had an unacceptable impact on their privacy as they gave clear views into their homes and gardens.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by the complainants and the Council as well as relevant law, policy and guidance.
7. I gave the complainants and the Council an opportunity to comment on a draft version of this decision statement. I took account of any comments made in response, or further evidence provided, before finalising the decision statement.

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What I found

Relevant legal considerations

8. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise. The impact of development on neighbours is a material planning consideration. So, councils should assess the impact development will have on neighbours through overlooking or other impacts on privacy.
9. Regulations set out the minimum requirements for how councils publicise planning applications. For major developments (ten houses or more), councils must publicise the application by a local newspaper advert and either a site notice or writing to adjoining owners or occupiers.
10. In addition, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the council’s policy on how it will communicate with the public when acting as a planning authority. In their SCI policy councils may commit to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
11. Councils delegate most planning decisions to their officers. A council constitution or scheme of delegation will usually set out any exceptions where decisions should go to a planning committee of elected Members.
12. Usually, council planning officers will produce a report that sets out the council’s assessment of a planning application. This will show the procedure followed in deciding the application and the reasons for its decision whether to approve or reject the application. It will show its consideration of material planning considerations.
13. However, the courts have made it clear that officer reports:

• do not need to include every possible planning consideration, but just the principal issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) already familiar with those issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead on the key, material issues.

14. Councils can take enforcement action if they find a development has deviated from the approved plans. However, this is discretionary. Government guidance says: “local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework December 2024, paragraph 60)
15. So, formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development ‘as built’. As planning enforcement action is discretionary, councils may decide to take informal action instead or not to act at all.

Relevant Council policies

16. The Council has local planning policies relevant to new housing development in its area. This includes its “supplementary planning document number 2” (SPD2) which sets out guidelines for separation distances when it receives applications for house alterations or extensions. This says: “the best way of ensuring privacy between houses is to avoid windows to habitable rooms directly facing one another. Where this cannot be achieved […] as a ‘rule of thumb’ a gap of 21 metres should generally be provided. In more densely developed, inner urban locations this distance may be less. […] Where windows to habitable rooms face the end wall of a house the distance should not be less than 12 metres”.
17. The Council has a SCI which explains how it seeks to involve members of the public in planning decisions. It says that when the Council receives a planning application it will write to properties neighbouring the development site as well as display a site notice and place adverts in local newspapers.

The key facts

18. Ms X, Mr Y and Mr Z live on a residential street in the Council’s area. The homes occupied by Ms X and Mr Y front on to the street approximately facing east, with gardens behind facing approximately west. The home occupied by Mr Z lies off a side path and orientated differently, facing approximately north with a rear garden to the side and rear, or approximately south and west.
19. The development at the crux of this complaint lies to the west of the complainants homes. So, for Ms X and Mr Y it is directly behind their back gardens. They have windows at first floor level serving bedrooms in their homes that look out at the development.
20. For Mr Z, the development lies to the west of his garden. On the first floor of his home Mr Z has a bedroom with windows facing north and south, as well as one window in the gable end of the property facing west. He can see the development from all three, but most prominently from those windows to the south and west. He also has another bedroom on the second floor of his home with a single window in the gable wall, facing west. So, from this too he can see the development.
21. The development comprises social housing, for which the Council itself was the planning applicant through its housing service. It has over 30 units built on land formerly used for a different purpose, but which included some single storey accommodation on its eastern side (i.e. behind the complainants’ houses). The previous use of the site included a car park with screening behind provided by trees and other foliage which went to the border of the complainants’ homes.
22. The Council housing service applied to develop the site in 2020, although before then it had publicised its intent to do so holding public events setting out what it envisaged. Ms X and Mr Z occupied their homes in 2020 and had some general knowledge the Council intended to use the site for housing. However, they received no letter of consultation from the Council directing them to the planning application and inviting their comments.
23. For its part the Council says that it did send them consultation letters. It has provided a list of all properties it wrote to in this way and a print out from its database showing when it posted the consultation letters. These include Ms X and Mr Z’s addresses. It says it also put up two site notices, but it cannot say exactly.
24. The Council decided the application in 2020 and gave planning permission for the development. Planning officers decided the application under delegated powers. The Council said the application did not go to its planning committee because no local Ward Councillors asked for this. So, under its then scheme of delegation (which has changed since) officers could decide the application.
25. A planning officer wrote a report which set out the Council’s evaluation of the planning application. It noted that it had received some comments from members of the public on the application.
26. The report referred to plans and a design and access statement provided with the application. These showed the development proposed a line of two storey terraced houses behind the street on which the complainants live. The new houses would face west with rear gardens to the east. So, the complainants’ houses would have views to the rear of the new houses.
27. The design and access statement said that all existing houses bordering the site, except one, would be 20 metres or more from the development. The one exception was Mr Z’s home. The design and access statement said this would be 12 metres from the new terraced houses. But the property would have only an “oblique view” of those. It noted a window in the gable end of Mr Z’s home but said this was a “secondary window” that did not serve a “habitable room”.
28. In their report, the planning officer gave specific attention to the impact of the development on the privacy of neighbouring homes. Their report said the distance between the main windows serving the development and existing homes was 20 metres or more in every case except that of Mr Z’s home. It said this was “on the margin of what is acceptable”, using a “rule of thumb” of 21 metres as the usual acceptable separation distance.
29. With Mr Z’s home, the Council noted the proposed separation distance of 12 metres between the gable end and the new terraced houses. The report noted the window at first floor level in the gable end and it also described this as a “secondary window”, noting it served a bedroom with windows also at the front and rear. It noted there were existing views towards that window from the car park related to the site’s former use. It also noted the window had blinds fitted.
30. Mr Y moved into his home in 2021. He said when he moved he knew of the planned development behind his home, but not specific details of how it would impact on him.
31. By September 2024 the development was under construction behind the complainants’ homes. Ms X contacted the Council, on her own behalf, and that of Mr Y and Mr Z, as they had become concerned at the distance between their homes and the new houses.
32. Ms X’s enquiry went to the planning enforcement service. In November 2024, it made enquiries with the development company building the new houses. The company provided drawings showing the new homes as built, compared with the approved plans. The Council sent these to a representative supporting the complainants. The planning enforcement service said the drawings showed the new houses were “further away” from the complainants’ homes than shown on the approved plans.
33. The following month an officer from the Council’s planning enforcement service also visited the site. He contacted Ms X to say that he saw no case for the Council to take enforcement action. He confirmed he did not measure the separation distance between the new houses and the complainants’ homes when he visited.
34. Unhappy with the Council’s position, Ms X made a complaint in January 2025. In this Ms X said that she and her neighbours had measured the distance between the new houses from their homes. In her case it was 18.5 metres. Their measurements showed all the new houses as built were closer to their homes by one to two metres than on the approved plans.
35. In its reply the Council said that it accepted the complainants’ measurements of separation distance. But that it had “no reason to conclude the development was not following approved details so as to be unacceptable in planning terms”.
36. Ms X escalated the complaint but the Council stuck to its view that it should not take enforcement action. In its final reply the Council explained that its enforcement service had to consider if any loss of privacy to the complainants was “below a reasonable level such as it justifies enforcement action”.
37. Afterwards, and following further discussion with the complainants’ representative, the Council agreed to install a taller boundary fence between the development and the complainants’ home. This would be around three metres tall, rather than two metres as first approved. It rejected a suggestion it should also fit windows at first floor level in the new houses with obscure glazing or film.

My findings

Application of the Ombudsman’s powers to investigate

38. The first matter I had to consider was the extent to which the Ombudsman could investigate this complaint. As I explained above, the law limits our ability to investigate late complaints. I had to consider if these complaints were late, given the Council consulted on, and decided, the planning application at the centre of the complaint in 2020.
39. I decided the complaints were not late. I found none of the complainants knew about the planning application or decision in 2020. In Mr Y’s case this was because he had not moved to his current home. In Ms X and Mr Z’s case, they should have known as they should have received the consultation letters from the Council. However, they were clear they did not receive those and I had no reason to dispute that. As a result, they had only a general knowledge a development would take place at some point on the land behind their homes.
40. I found therefore Ms X and Mr Z had no cause to complain until the development behind their homes began to take shape. And that was not until 2024, within 12 months of their complaint to this office.
41. In Mr Y’s case, he should have had more knowledge of the development at an earlier time having moved in 2021. He recognised knowing of the plans before he moved but not being familiar with the detail. This was an opportunity missed.
42. However, Mr Y still had no opportunity to comment on the plans before the Council approved them. And given I decided to investigate Ms X and Mr Z’s complaint, I considered it fair to also look at the impact of the Council’s approval of planning permission on his home also.

The complaint about consultation

43. I found the Council’s SCI required it to tell Ms X and Mr Z of the planning application covering the development site. I had no evidence the Council did not try to fulfil that requirement.
44. It had an audit trail showing it sent neighbour notification letters to the homes of Ms X and Mr Z. In addition, I noted the Council had received comments from some members of the public when it consulted on the planning application, which it referred to in the planning officer’s report. I could not say for certain if those comments were in response to neighbour notification letters or followed some other prompt such as a site notice. But I considered this evidence suggested the Council had sent out those letters, in line with the record from its database.
45. I reiterate that I did not doubt Ms X’s or Mr Z’s accounts that they did not receive the letters. But the fault for this need not have been with the Council. It could instead have been because of fault by the postal service. In any event, I had no evidence to find the Council at fault for the consultation it carried out surrounding the planning application.

The Council’s decision and consideration of the complainants’ privacy

46. I found no reason to fault the Council for delegating a decision on the planning application to officers for the reasons it explained.
47. Turning to its scrutiny of the planning application, the Council needed to consider the impact of the development on the complainants’ homes, even without receiving comments from them. I found evidence in the Planning Officer’s report that it did this.
48. The report explained the Council began from the position that it would usually approve development with windows in habitable rooms facing other habitable rooms if the separation distance was 21 metres or more. I found nothing unusual in this approach. Many local authorities work to this or a similar standard, following advice issued by the Building Research Establishment. In addition, the Council can point to its SPD2 planning policy. While it targets this at applications for extensions and alterations to existing homes (rather than new homes), it had clear relevance here also.
49. The report rightly focused therefore only on those properties which fell inside this separation distance. These were Ms X and Mr Z’s homes.
50. In Ms X’s case the Council noted the proposed separation distance of 20 metres was just inside its usual recommended guidelines (with Mr Y’s house at 21 metres from the new housing). However, it considered this slightly greater degree of tolerance acceptable.
51. I could not find fault with that. The guidance officers work to, is exactly that. It is not a rigid set of rules that do not allow for flexibility. Officers will take account of the general urban environment where separation distances will vary, but where distances of around 20 metres are not uncommon (something its SPD2 policy alludes to). In this case I could not see the officer needed to take account of any, additional factors when exercising their judgement. For example, there is no significant difference in land levels between Ms X’s home and the new development, which could cause the new development to be more imposing.
52. I recognised a point made to me by the complainants, that the unbroken terraced design of the new houses could have more impact on them. But there was no suggestion officers were unaware of this when they approved development. I was not persuaded this factor needed specific consideration in the report therefore.
53. Turning to Mr Z’s home, clearly it was much closer to the development. I found the Council was fully aware of this as the officer report drew specific attention to it. Further, the evidence showed the officer scrutinised the design and access statement presented with the planning application. They did not repeat the mistake contained in that document which described the window in the gable end of the property as serving a non-habitable room. They recognised it served a bedroom, clearly a primary room in any home.
54. I noted the officer report did copy the wording of the design and access statement in describing the first floor gable end window as a ‘secondary window’. On balance, I considered this acceptable. This was because the officer noted the bedroom also had windows front and back. These are larger and therefore presumably the main source of light. So, I could see justification for the report referring to the window this way.
55. I considered the presence of these additional windows was a reasonable factor for the Council to take account of in weighing up the planning application. So too, was its consideration of the previous use of the site, which gave some views into Mr Z’s home. However, I also recognised here that the previous use of the development had less impact on Mr Z. And where the development site adjoined Mr Z’s property there had been some screening from trees and other foliage.
56. I had concern the officer report did not say more when considering the impact of the new houses on Mr Z’s home. The SPD2 policy suggests a 12 metre separation distance is acceptable where development faces a gable wall. However, I considered it implicit in the guidance that it envisaged development facing a blank gable wall, not one with a window serving a habitable room. While I read the officer report comments cited above as providing the Council’s justification for making an exception to this rule, the report would have benefited from making this plainer.
57. The report also contained no mention of window on the second floor in the gable end of Mr Z’s property. Nor did it address the views Mr Z would have from the rear bedroom window (that which faces approximately south). For while Mr Z’s home is at an angle from the new houses, it is not at 90 degrees. So, to the south it also faces towards the development, meaning Mr Z has views towards the new houses from that window (and they have views towards his home accordingly).
58. But on balance, I could not say these omissions were enough for me to find fault with the officer report. As I explained above, while we must scrutinise reports our approach must follow that set by the courts which is not to be overly forensic in reading them. Overall, I found there was enough in the report to show planning officers fully understood the relationship between Mr Z’s home and the development. This included knowing about these windows, one of which it mentioned in the report. There was insufficient evidence to show therefore the Council did not take relevant factors into account before approving the application and nothing to show it took anything irrelevant into account.
59. In which case I could only find fault with the decision if I considered it was one no reasonable planning authority could have come to on the same facts after taking account of relevant planning policies. That is a high bar, and not one that I could find reached in this case.

The Council’s approach to planning enforcement

60. After construction began, the complainants’ found the new houses lay closer to their homes than the approved plans showed. In Ms X and Mr Y’s case this was something around one to two metres closer and something slightly less than that in Mr Z’s case. I consider that where the Council has approved a separation distance to the minimum usually considered acceptable, it must look closely at any departure from the approved plans which may reduce that distance further.
61. On balance, I found it had done so here. I considered its enforcement service did not handle Ms X’s initial enquiry well. I could not see the drawings provided by the developer showed the new homes ‘as built’ further away from the complainants’ homes as it suggested. Instead, the drawings suggested to me a position similar to that provided by the complainants’ measurements; i.e. that the new homes were in fact closer. The Council accepted this in its later correspondence with Ms X where it said it did not dispute the measurements she provided. But I considered it could have avoided that confusion had it taken its own measurements in response to Ms X’s initial contact and confirmed these with her.
62. However, I did not consider a failure to provide measurements by the Council at the outset showed any misunderstanding of the relationship between the new housing and those of the complainants’ homes. Because the Council’s approach towards enforcement also encompassed it visiting the site, as well as scrutiny of the approved plans and liaison with the developers.
63. A departure from approved plans does not require the Council to take enforcement action to secure compliance with the original plans. What the Council must do is compare the development ‘as built’ with that ‘as approved’. It must decide if any difference between the two means the development is no longer acceptable. Only then should it look to secure changes to make it acceptable again. So, in this case, the Council had to assess whether the new housing ‘as built’ resulted in an appreciable or significantly greater loss of privacy than that envisaged when it approved the development.
64. While some of its explanation could have been clearer, I found the Council had come to a clear view the new housing did not have that greater impact. I could only challenge that judgement if I considered the Council reached it with fault. I could not make that finding here finding no evidence the Council took anything irrelevant into account, nor ignored anything relevant when reaching it.
65. I recognised the new housing led to all three complainants having a significantly different outlook. For the first time they would experience some overlooking from neighbours to the rear, impacting their privacy to some extent. But this would always have been the impact of the development on them. I could understand why the Council came to the view that the impact of the new homes ‘as built’ was not appreciably or significantly greater than it foresaw when it approved development. And therefore, why it saw no case for enforcement action. So, that was not a judgement reached with fault.
66. Finally, I noted the Council agreed to arrange for a higher than standard boundary fence between the new homes and those of the complainants. I did not consider this an acknowledgement of fault, but an act of goodwill by the Council recognising that regardless of the legality of the development it had caused genuine distress to the complainants. While I welcomed this action, I could not say it set any precedent. I had no ground therefore to ask the Council to go further and seek changes to the first floor windows of the new housing or take other measures to increase the privacy of the complainants.

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Final decision

67. For reasons set out above I found the Council was not at fault and so I completed my investigation accordingly.

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Investigator's decision on behalf of the Ombudsman