The Ombudsman's final decision:
Summary: Mrs B complained about the consideration by the Council’s predecessor authority of a planning application for residential development at the back of her home. In particular she said the first-floor lounge and kitchen mean there is an unacceptable degree of overlooking into her home and garden. There was fault by the Council but that did not alter the decision.
- I call the complainant Mrs B. She complained about the consideration by the Council’s predecessor authority of a planning application for residential development at the back of her home. In particular she said the first-floor lounge and kitchen mean there is an unacceptable degree of overlooking into her home and garden.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- 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)
How I considered this complaint
- I considered the complaint and documents provided by Mrs B and spoke to her. I asked the Council to comment on the complaint and provide information. I interviewed the planning case officer. I sent a draft of this statement to Mrs B and the Council and considered their comments.
What I found
Summary of events
- Mrs B lives in a detached property. The development about which she complained is a row of terraced properties at the back of her house. The predecessor authority granted planning permission for the development in late 2017. Mrs B was notified of the application and had seen the plans. She did not object at the time as she had not appreciated that the rooms at first floor were to be a living room and kitchen – she thought they were bedrooms.
- Mrs B complained to the Council in 2020 when development had started and she realised the impact the properties would have on her house and garden. The Council responded saying it had considered the impact the development would have on her property and considered it to be acceptable.
- Mrs B was not satisfied with the response she had from the Council so complained to us.
- General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
- There is no analysis in the report on the application of the consideration given to the impact on Mrs B’s home specifically. In responding to my enquiries on this point the Council said that officer reports do not usually detail the relationship numerically with every surrounding residential property. But the report did refer to residential amenity in terms of the relevant policy and noted that sufficient separation distances were achieved. It is not fault for there to be no specific analysis on Mrs B’s property.
- The policies in the Council’s local plan refer to the factors that should be taken into account when considering impact on neighbour amenity. These include privacy and overlooking, and that development is acceptable where it would not cause an unacceptable loss of amenity to adjoining or future occupiers of the development. Also relevant at the time was supplementary planning guidance. That related to house alterations and extensions, but the Council considers the same principles could be applied to new residential development. I agree that it is a sensible approach. This provides for a back-to-back separation distance of 24m. That could be lessened in dense urban areas where there was already excessive mutual overlooking. If the upper floors contain living rooms then the distance may need to be greater to maintain privacy.
- The report on the application said that in terms of residential amenity the orientation of dwellings was such that there was no direct overlooking into private garden areas. And there was a sufficient level of separation to protect neighbouring land’s amenity.
- The key point for Mrs B was that from the first-floor living room window there is a clear line of sight down on to her patio and garden and into her home. So she did not consider the Council gave adequate consideration to the impact on her.
- The report referred to there being no direct overlooking into private gardens. This was inaccurate as there is direct overlooking into Mrs B’s garden and house. The officer accepted the wording in the report could have been clearer. But she had visited the site and understood the relationship between the existing properties and the development. The key point in her consideration was that the degree of separation was such that the overlooking was not so significant that it made the development unacceptable. The application and report were reviewed and approved by her manager. She could not specifically recall what happened in this case, but she said there was often discussion about the application and proposed decision.
- I understand why Mrs B is unhappy about the impact the development has on her home. My role is to consider the way in which the Council assessed the application. There was fault in the wording of the report but that does not mean there was a flawed assessment of the impact on Mrs B’s home. The key point for the Council was the separation distance which exceeded the guideline figure by 2.5m. The Council was entitled to give weight to this and to reach the decision it did on the merits of the application. I am satisfied the consideration itself was without fault and the poor wording of the report did not mean the decision was affected.
Investigator's decision on behalf of the Ombudsman