Summary: We will not investigate Mr X’s complaint about the Council permitting an opening window in his neighbour’s gable wall. Mr X bought the property in 2019 with the window present. It was Mr X’s 2019 decision to buy his house which directly led to the window becoming his concern and linking him to the injustice he now claims. We also cannot achieve the outcome Mr X seeks from his complaint. Any issue of trespass or easement related to the window is a private civil issue between Mr X and the neighbouring owner, not a matter for the Council as the planning authority to negotiate.

The complaint

1. Mr X lives in a new build property. The gable end wall of a neighbouring house, house A, forms the boundary with his garden.
2. Mr X complains the Council wrongly granted permission in 2015 for house A’s gable wall to include an opening window.
3. Mr X says the window causes privacy and overlooking issues, and trespass and encroachment over his land when it is open. He is concerned the window could result in a permanent easement over his land, unless it is changed. He wants the Council to negotiate with the owners of house A to resolve the matter. He would like the current window replaced with one which does not open.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I considered:
• information provided by Mr X, which included documents produced by the Council;
• relevant online planning documents and maps;
• the Ombudsman’s Assessment Code.

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My assessment

6. The 2015 permitted and built plans show a window in the gable wall of house A. Mr X bought his house with the window in house A in place. It was for Mr X to have satisfied himself that he was content with the impact of that window on the house he was buying, before he bought it. While there was an oversight by the Council giving permission for the development as built, it was Mr X’s subsequent decision to buy his house in 2019 which directly led to the window becoming his concern, and which linked him to the injustice he now claims from the matter. We will not investigate in these circumstances.
7. If the Council had identified the window issue in 2015 and required its removal, the developer could have built house A without it. But the installation of an obscure glazed gable wall window is allowed under Permitted Development (PD) rights. Those PD rights were not removed in the 2015 planning permission by any condition. So there would have been no impediment to the new owner installing the window later on under their PD rights. The same situation could have been reached, even if the Council had identified the window issue in 2015.
8. I recognise Mr X is concerned about trespass over his property by the window when it is opened and that this might result in an easement over his land. But any issue of trespass or related easements are legal matters, not planning ones for the Council to be involved in. Any negotiations or discussions on this matter would be between Mr X and the owner of the neighbouring house as the only two parties involved.
9. It follows from the above point that we also cannot achieve the outcome Mr X seeks from his complaint, for the Council to negotiate a resolution with the owner of house A. There is no basis for the Council to be involved in what is now a private civil matter between the two properties’ owners. The Council’s role was as the planning authority, which has ended.

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Final decision

10. We will not investigate Mr X’s complaint because:
• it was Mr X’s 2019 decision to buy his house which directly led to the house A window becoming his concern and linking him to the injustice he now claims;
• we cannot achieve the outcome Mr X seeks from his complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman