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Hinckley & Bosworth Borough Council (16 013 263)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 30 Mar 2017

The Ombudsman's final decision:

Summary: The Council was at fault for some errors in a report which considered a planning application after a developer failed to comply with a condition on the positioning of a window. The Council could also have better handled a complaint about this and other matters. It has agreed to apologise. However, it is not considered the Council would have made any different decision on the planning application if the errors had not occurred.

The complaint

  1. The complainants, whom I have called ‘Mr and Mrs C’, are unhappy with the Council’s handling of a planning application submitted by their neighbour in September 2016. In December 2015 the Council approved a planning application allowing the neighbour to install a window at first floor level facing Mr and Mrs C’s home. However the neighbour located the window in a different position. The Council approved this change as part of an amended planning permission given in September 2016. Mr and Mrs C complain the Council:
  • Misled them into believing the neighbour could not change their plans. It described planning conditions attached to the first planning permission as being “in perpetuity”.
  • Allowed inappropriate communications between its Planning Officer and the neighbour between September and November 2016.
  • Reported inaccurately on the amended planning application resulting in a window which now has an adverse affect on their amenity or enjoyment of their home.
  • Did not follow its own complaint procedure when they complained.

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The Ombudsman’s role and powers

  1. 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))
  2. If we find fault, we must consider whether that 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))
  3. 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))

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How I considered this complaint

  1. Before completing my investigation and issuing this decision statement I considered:
  • Mr and Mrs C’s complaint in writing to the Ombudsman and supporting information, including correspondence exchanged with the Council about the matters raised.
  • Information available on the Council’s website setting out the planning history of the neighbouring development.
  • Observations gathered on a visit to Mr and Mrs C’s home.
  • Information provided by the Council in reply to written enquiries.
  • Comments made by Mr and Mrs C and the Council in response to a draft decision setting out my initial thinking about the complaint. Where appropriate I amended the decision below to take account of these comments.

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What I found

  1. Mr and Mrs C live in a detached house in the Council’s area. Another detached property is to the immediate south. At the beginning of the events covered by this complaint the neighbouring property was a bungalow. In 2015 Mr and Mrs C’s neighbour applied for planning permission to extend the property to include raising the roof height to build accommodation at first floor level. The plans included proposals for a window in the northern face of the roof, opposite to Mr and Mrs C’s home but offset at an angle to it. The plans described the window as obscure glazed and fixed shut.
  2. The Council approved the application subject to conditions. Its officer report noted “neighbours raised concerns the roof lights would cause potential overlooking unless obscure glazed and fixed. Amended plans show this while condition(s) require this to be retained in perpetuity”. The relevant condition said “the roof lights [described] shall be obscure glazed and fixed and retained as such at all times thereafter”. The Council recorded the reason for the condition as “to ensure that the development is not detrimental to the privacy and amenity of the neighbouring property”.
  3. Mr and Mrs C understood this to mean the neighbour could not change the window’s position or that it would be anything other than obscure glazed and fixed. However, in August 2016 they noted the window going into place in a different position on the roof. It was no longer offset to the main body of their house but instead faced two windows serving their master bedroom and an en-suite bathroom attached. They also noted the window looked bigger than on the approved plans and was open when installed.
  4. The Council visited the site and confirmed the window was not as approved. It gave the neighbour the choice of re-siting the window as approved, removing it all together or presenting a retrospective planning application seeking approval for the change. The neighbour chose the latter course of action and presented a retrospective planning application in early September 2016. The retrospective application still described the window as obscure glazed and fixed shut.
  5. Mr and Mrs C’s neighbour approached them just over a week later. He said he had spoken to the planning case officer assigned the case who was visiting him the following day (a Saturday). He complained Mr and Mrs C’s contact with the Council had cost him money by having to make a fresh planning application. Mrs C sent an email to the Council contemporaneously making reference to this visit and asking to attend the site visit. She received no reply before the Saturday in question but both Mrs C and her husband believed they witnessed the planning officer visiting their neighbour’s house the following day.
  6. The Planning Officer visited Mrs C a few days later. The Officer dated their site visit notes on the same day as the visit to Mrs C. Their notes refer to visits to both properties. The Council says this was the only time the officer visited the site. The Officer’s notes say Mrs C asked if they visited the neighbouring house the preceding Saturday and she said not. They also record the officer telling Mrs C they were likely to approve the changed window. This was because they noted the distance between the properties, that the neighbour’s window faced “non-habitable” or “secondary” windows in Mr and Mrs C’s home and the obscure glazing.
  7. The Council has provided photographs showing the outside and interior of the neighbouring property. The Officer’s notes record “saw window – fixed and obscure glazed”. A photograph shows the window above the head of a staircase.
  8. The officer’s report on the amended application recommended approval. The officer said Mr and Mrs C objected to the re-positioning of the window due to its “impact on outlook” from the en-suite and bedroom windows. Also that its position was contrary to the earlier planning permission.
  9. The officer commented that “in assessing the planning merits with regard to neighbouring residential amenity the 10 metre distance between the two properties is a consideration, whilst substantial landscaping exists on the intervening boundary in the form of tall conifers and hedging. Due to levels differences the neighbours [Mr and Mrs C] look down onto the new roof-light which is obscurely glazed. As such the potential overlooking is from [Mr and Mrs C] property’s window and not from the application property”. The report added that as the window was fixed, obscure glazed and positioned above the stairwell “there is no possibility of overlooking or loss of privacy”. Therefore it would not cause “any significant loss of amenity” to Mr and Mrs C.
  10. On a site visit I noted the landscaping between the properties does not extend to the area of the roof-light on the neighbouring property. I also noted there was no significant difference in levels between the roof-light and Mr and Mrs C’s windows which look on to it.
  11. After the Council approved the application Mr and Mrs C complained to it. They complained the approval contradicted the earlier planning application which they understood applied permanently given the comment it was “in perpetuity”. They complained at the officer’s conduct regarding visits and the comments made by their neighbour. They complained at the impact of the approved window. They also said the Planning Officer had falsely described their en-suite as an “uninhabited” room. When Mr and Mrs C were unhappy with the first response to their complaint they stepped up their complaint to ‘Stage Two’ of the Council’s corporate complaint procedure. The Council’s website says at this stage “the appropriate Head of Service, Deputy Chief Executive or Chief Executive will be asked to investigate the complaint”.
  12. However, on this occasion the Council’s Manager of Planning Services replied to the complaint. The Council says that it considered it reasonable for the Officer to respond as they were relatively new to the post and had no previous involvement in the events complained about. But it recognises this departed from its written complaint policy. So it says it will amend the policy wording in future.

My findings

Was there fault by the Council?

  1. I have considered each part of Mr and Mrs C’s complaint in turn. I think it was unfortunate the Council used the phrase “in perpetuity” when conditioning the first planning permission. Mr and Mrs C took these words to mean there could be no amendments to the originally approved scheme. I understand how they came to this view as this is how the phrase is commonly used. But as Mr and Mrs C discovered, in planning law, no Council can provide guarantees that its decision will not change in the future. A planning applicant can always apply to remove planning conditions or propose a different scheme.
  2. However, as the Council points out the phrase “in perpetuity” is not uncommon in planning reports nationwide. It considers it differs only slightly from the preferred wording recommended by the Planning Inspectorate which suggests use of the wording “permanently retained” instead. I agree there appears little difference between these phrases.
  3. So while I consider it would have been better for the Council to have used different wording, I do not consider I can find fault on this basis. The condition meant no owner could change the approved scheme without making a separate planning application. This was an important protection, but it was less than Mr and Mrs C expected. Therefore I do not blame them for feeling mislead. But I could not find the Council at fault for following commonly accepted practice in wording the condition.
  4. When Mr and Mrs C’s neighbour installed the window in a different position to that approved the Council acted quickly in investigating the breach and in requiring them to present a retrospective planning application. I found its approach consistent with Government guidance and good practice. A retrospective application allowed the Council to consider the impact of the change on Mr and Mrs C’s amenity.
  5. I had some concerns about the contacts which followed between the Planning Officer and both Mr and Mrs C and their neighbour. I did not find evidence the Planning Officer visited the neighbour on a Saturday as claimed. However, Mrs C’s contemporaneous email clearly showed this is what her neighbour told her. However, I could see no grounds to pursue enquiries given that even if the Planning Officer had visited on a Saturday that would not be a fault.
  6. I did not find evidence the Planning Officer said anything unacceptable about Mr and Mrs C to their neighbour. The Council recognises its Officer told the neighbour that Mr and Mrs C objected to their plans. But objections to planning applications are in the public domain. So there can be no fault in that.
  7. Turning to the Council’s consideration of the merits of the planning application, I noted Mr and Mrs C’s dissatisfaction with references to the windows in their home which overlook the neighbouring house. In particular I noted they took issue their en-suite bathroom described as a “non-habitable” room. Planning officers often use this phrase to describe rooms where occupiers do not spend most of their time. It can distinguish rooms which are not the main ‘living rooms’ such as lounges, dining rooms or bedrooms. I think it is another example of ‘unfortunate’ wording as it implies something different to the non-planning professional. It might imply the en-suite was somehow unusable or unfit. But I do not consider this was the Council’s intent and I cannot fault the use of this phrase.
  8. I considered describing the bedroom window as a ‘secondary window’ a statement of fact, given the bedroom also contains larger ‘picture’ windows in another wall.
  9. But I agree with Mr and Mrs C there were still some errors in the Council’s planning report. I do not consider they were objecting to the “outlook” from their home but for the potential for the neighbours to look at them through an opening or clear-glazed window. I also considered the statements made about boundary planting and the levels of respective windows were potentially misleading based on my observations recorded above. This justified a finding of fault.
  10. However, I did not consider the fault extended to the officer’s key observation that the neighbouring window would not cause “any significant loss of amenity” to Mr and Mrs C. I considered the officer could still reasonably arrive at this judgment noting the window’s position above a stairwell and that it appeared obscure glazed and fixed. This justified the accompanying statement that there would be no overlooking or loss of privacy from the window.
  11. I noted Mr and Mrs C remained concerned whether, in fact, the window is obscure glazed and fixed. I found it was not possible to decide from the photo I saw if the window has obscure glazing or if it opens. I noted Mr and Mrs C saw the window open at the time of installation and they researched it was of an opening type. But that does not preclude the window having been fixed shut subsequently. I could make no finding therefore whether the window opens or not.
  12. But I noted the Council had conditioned the planning application to say the window should remain obscure glazed and fixed shut. So if Mr and Mrs C saw it not being used this way they could ask the Council to begin another planning enforcement investigation.
  13. Finally, I considered how the Council’s complaint procedure performed in this case. It considered it did not follow the procedure it describes when publicising the procedure. I understood why the Council thought this acceptable on this occasion. But it did not explain this to Mr and Mrs C. So it created the appearance that it did not treat their complaint with the same degree of seriousness or objectivity that its policy implied. This was further fault.

Did the faults cause injustice?

  1. I have identified above two faults in the Council’s handling of the events covered by this complaint. The faults in the report on the amended planning application caused a justifiable sense of frustration for Mr and Mrs C. They felt the Council had not listened to them and so experienced some distress. Although on balance I am satisfied the Council considered the impact of development on them and it would not have made a different decision but for the fault.
  2. Similarly the way the Council handled Mr and Mrs C’s complaint created an appearance of less favourable treatment, causing some distress. However, I had no reason to find the Council’s response would have been significantly different had a more senior officer reviewed the case. In addition, the departure from the described procedure did not prevent Mr and Mrs C escalating their complaint to this office and having the Council’s actions independently reviewed.
  3. So I find there was injustice in this case, but that it was minimal. In particular I cannot find the Council responsible for the distress Mr and Mrs C experienced as a result of their neighbour’s conduct. With planning applications being considered in the public domain there is always a risk a developer may react inappropriately when objections are made by neighbours. But this is something which is outside the Council’s control.

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Agreed Action

  1. The Council has agreed to provide a written apology to Mr and Mrs C for the injustice described above. It will also share the lessons of this complaint with its planning officers so they can look to avoid inaccurate summation of objections in reports. I would also encourage it as far as possible to try and avoid phrases in reports which may not be readily understood by the population as a whole. It will share details of how it has done this with this office and it will complete these actions within 20 working days of this decision.

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Final decision

  1. For the reasons set out above I have upheld this complaint finding fault with the Council’s actions causing injustice to the complainants. I am satisfied the Council has agreed to take action which will provide a fair remedy to the complaint. So I have completed my investigation on the understanding this action will be undertaken within the next 20 working days.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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