Summary: Mr B complains the Council approved planning permission for a side facing window that directly overlooks his rear windows. He says he has suffered a loss of privacy as a result and the Council has declined to help rectify the problem. The Ombudsman does not fault in how the Council considered the planning application.

The complaint

1. The complainant, who I refer to as Mr B, complains about the way the Council considered a planning application for a housing estate. He says the Council approved plans for the estate without considering the impact on the privacy, from the design of certain homes. Mr B bought a house on the new estate. The rear of his property faces the side of another property. The side of that property has a window, serving a kitchen-dining area, which Mr B says directly overlooks his rear windows and causes a lack of privacy.
2. Mr B says he has asked the Council to help remedy the situation by providing screening or glazing for the side window. However, the Council has not accepted any wrongdoing in how it approved planning permission and declined to get involved.

Back to top

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 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)
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 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)

Back to top

How I considered this complaint

6. I considered the initial information and correspondence provided by Mr B and the Council. I looked up the relevant planning documents on the Council’s website. I then spoke to Mr B about the complaint. I had sufficient information to reach a draft view without further enquiries, so sent a copy of my draft decision to Mr B and the Council.

Back to top

What I found

Legislation, Guidance and Local Policies

7. Planning permission is required for the development of land (including its material change of use). Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
8. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. Material considerations include issues such as overlooking, traffic generation and noise.
9. 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.
10. The Council’s Local Plan sets out its criteria for sustainable development at Policy GN3. It says proposals for development should ‘Retain or create reasonable levels of privacy, amenity and sufficient garden / outdoor space for occupiers of the proposed and neighbouring properties’.
11. The Council has also produced a supplementary design guide (“the Guide”). The Guide says siting and orientation of new developments should avoid unacceptable levels of overlooking. It says the distance between properties is important but also factors such as the use of rooms. It says privacy issues are not as critical in secondary rooms as compared with lounges, dining-kitchen rooms or bedrooms.
12. The Guide sets out general guidance that:
• The minimum distance between buildings, on similar levels, facing back to back, is 21 metres. Where justified, this distance can be reduced.
• The minimum distance between main elevations and those that do not contain primary windows of habitable rooms is 12 metres.
• Side facing windows serving habitable rooms should be avoided.
13. It says the above is guidance only and that in some cases the distance standards may vary.

Background

14. The Council approved outline planning permission for a housing estate in 2015. It considered an application for approval of reserved matters in 2017, which included the detailed design and layout of the houses on site.
15. The estate includes a number of different house designs. One of the designs has a ground-floor, side window serving a kitchen-dining area. The window is next to the kitchen sink.
16. In the Council’s report it says, ‘Generally there is a good mix of dwellings and adequate interface distances and garden lengths have been provided which ensures acceptable privacy and amenity space standards are compliant with [the Guide]’. It says, ‘In terms of the relationships between the proposed dwellings, I am satisfied that the proposed layout, in general, accommodates the required interface distances. Where this is not the case, I am satisfied that the resulting impact has been designed out by ensuring that the main outlook is focused away from the neighbouring property’.
17. The Council approved the application.
18. In 2019, Mr B bought and moved into one of the new houses. At the time he moved in, the house at the back of his was not yet built. As the build continued Mr B noticed there was a side window serving the kitchen, which faced the rear of his property. That window was close to his back fence and 14 metres from his rear windows.
19. Mr B complained to the property developer. He said the top half of the window was visible to his ground floor kitchen windows, over the fence. Therefore, when the neighbours moved in, he could make direct eye contact with them from his kitchen. He could also see directly into the whole of the window from his first-floor bedroom windows.
20. The property developer offered to install a trellis on the back fence to screen the window. Mr B did not accept this at first as the developer had installed a trellis next door and he was concerned about the quality, effectiveness and potential damage to the fence.
21. Mr B complained to the Council. He said the Council should not have approved planning permission for windows that overlooked in this way. He said the Council did not follow its own Guide, which said facing windows should be 21 metres away.
22. The Council did not uphold the complaint. It said the Guide was only guidance and it would consider each individual application on its likely impact. It said that, although there was a habitable room at ground floor on the side elevation, there was a 1.8m high fence along the boundary, which prevented views into each property. It said the view from the window to Mr B’s bedroom window was at an angle. It said the planning committee properly considered neighbour amenity.
23. Mr B asked to escalate his complaint. The Council provided a further response, which again said it had properly considered the application and did not uphold the complaint.
24. Mr B says the issue has led to a breakdown in his relationship with his neighbours. He says the neighbours have also made complaints and, without his knowledge allowed the developer to fit a trellis to their side of the fence. He says the trellis has helped to shield the view between the properties at ground floor level. However, there is still direct overlooking between the window as his bedroom windows. He says that to prevent this overlooking he would need to plant foliage of up to 9ft at the end of his garden and asks that the Council pay for this.
25. The Council has provided a response from the planning officer who approved the application. The officer says she was aware of the relationship between the two plots and the side facing window when approving the application. She says this is a common relationship found across the developer’s sites and she assessed that the ground floor window was a secondary window as the main source of light and outlook was from the rear dining room window. The officer considered the relationship between the houses was acceptable.

Findings

26. I do not find fault in how the Council considered the planning application.
27. The Guide sets out general principles the Council normally expects from a development. Where the design falls short of those principles, it should set out clearly why it considers the development acceptable. I can see the Guide says side facing windows serving habitable rooms should be avoided. In this case, one of the house designs included a side facing window serving a habitable room. I cannot see anything in the report that addresses this or explains why that is acceptable in this instance.
28. However, this is guidance, and the Council can still approve the application if it considers the development is acceptable. The officer who approved the application has provided a clear explanation of their rationale for why they considered the relationship between the two buildings was acceptable. This includes that the window was a secondary window, where privacy issues are not as critical.
29. I note that, while there is an open kitchen-dining room, the window is the only window for the kitchen area. However, I cannot see any guidance that clearly sets out what the position is when there is a combined kitchen-dining area. It is physically one room so, on balance, I cannot question the Council’s decision that it was a secondary window.
30. I cannot question the merits of the Council’s decision, only whether it properly considered the factors involved. For this reason, on balance, I do not find fault.

Back to top

Final decision

31. The Council is not at fault in how it considered the application.

Back to top

Investigator's decision on behalf of the Ombudsman