Summary: Ms X complained about the Council approving a planning application for a neighbouring development which contained a planning condition which could not be applied. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of injustice caused by fault on the Council’s part which would warrant an investigation.

The complaint

1. The complainant, whom I shall call Ms X, complained about the Council adding a condition to a planning application to protect her residential amenity which could not be enforced. The Council approved an amended condition which meets the building regulations but which she says does not guarantee her property from being overlooked.

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The Ombudsman’s role and powers

2. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered all the information which Ms X submitted with her complaint. Ms X has been given an opportunity to comment on a draft copy of my decision.

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What I found

4. Ms X says a neighbouring development was approved by the Council with a condition which was included to safeguard the residential amenity of her property by requiring two windows to be obscure glazed and unopenable to prevent overlooking.
5. When the development was completed, she noticed that the windows were capable of opening and had been so before the flats were occupied. She complained to the Council and the Council told her that the original condition could not be applied because the building regulations required the windows to be capable of being opened for fire escape purposes.
6. The developer applied to have the condition varied in 2019 so that the windows would comply with the building regulations. This include an amended condition which would allow the windows to be openable but to be done so only in the case of emergency situation. This means that any other use would be a breach of the planning regulations.
7. Ms X remains dissatisfied with the amended condition. She says the windows were opened on one occasion for 60 hours. The Council has investigated more than once and says the flats were still unoccupied at the time. Planning enforcement is a discretionary power and must be used proportionately to any breach.
8. The amended condition was a reasonable remedy to Ms X’s complaint that the original condition could not be applied. Any breach of the condition would, like any other breach of planning regulations, be an enforcement issue to be considered in the future.

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Final decision

9. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of injustice caused by fault on the Council’s part which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman