The Ombudsman's final decision:
Summary: The Council was at fault in failing to properly assess a planning application by Mr W’s neighbours that would result in direct overlooking of his private amenity space from a ground floor window. There was also fault in the Council’s stage 1 complaint response. The neighbours have now resolved matters by erecting a boundary fence at their own cost. But, I have asked the Council to make a time and trouble payment to Mr W, and to make procedural improvements.
- The complainant, whom I shall refer to as Mr W, complained about the way in which the Council assessed the impact of his neighbours' planning proposals on his residential amenity. In particular, the Council approved proposals that meant:
- there would be a new side door facing the bedrooms to the rear of Mr W’s property. This door would be the sole entrance and exit to and from the neighbours’ property. So, Mr W and his family would suffer noise and loss of privacy from its frequent use; and
- in addition, a new kitchen window further along in the side elevation would directly overlook Mr W’s rear garden and private amenity space.
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)
- 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 have considered information provided by both Mr W and the Council.
- I have written to Mr W and the Council with my draft decision and considered their comments.
What I found
- The guidance says that all development proposals should protect the amenity of neighbours. Proposals which harm their residential amenity through excessive overshadowing, overdominance or overlooking will be strongly resisted.
- The guidance goes on to say that:
- windows which directly overlook neighbouring gardens, or cause conflict with existing windows at close quarters will not be permitted;
- the minimum guide distance from tertiary windows (windows to kitchens and utility rooms excluding dining areas) to the boundary should be 2.5 metres;
- these distances are a guide only, and should not be taken as a hard and fast rule. These are regarded as the normal minimum requirements for flat sites within suburban areas .… Some existing intensive forms of development may justify lower distances being used. But, with sloping sites, greater distances are likely to be required.
The planning application
- The proposals were for a single storey side and rear extension.
Mr W’s representations
- The Council sent Mr W a notification letter in December 2017. Mr W did not object to the proposals. He said only that he did not think a fully rendered house would be in keeping with the surrounding area. He noted this was because the proposals required the existing door and windows to be blocked up. But, he considered a partially rendered design would be more appropriate.
The delegated report
- The report:
- noted Mr W’s comments, but said that officers considered that a rendered external finish in an appropriate colour would cause no harm to the character of the local area;
- with regard to overlooking, the openings in the extension would predominantly face the host property’s garden areas and driveway; and
- windows serving the kitchen and bathroom facing the side elevation of the neighbouring property would not differ in location from the existing arrangement. So, the impact on the neighbours’ privacy would be negligible.
The Council’s stage complaint responses
- Mr W made a formal complaint to the Council six months later. A complaints officer responded in mid-August at stage 1 of the Council’s complaints procedure. He said:
- the extension included a new dining room, living room and bedroom to the rear of the application property, with two bedrooms now located at the front of the dwelling. Changes to the internal layout meant the kitchen would move further back on the side facing Mr W’s property;
- he noted Mr W’s view that the new position of the kitchen would result in an unacceptable loss of privacy, as the existing boundary hedge was deciduous. It would, therefore, be relatively bare in the winter months and would not provide adequate screening; but
- the site visit had taken place in January 2018. So, the case officer was able to make a balanced assessment of the hedge. He considered this was dense enough to provide adequate screening;
- his view was based on the position of the existing window which faced directly on to the side wall of Mr W’s property, and provided only an oblique view across Mr W’s garden; also
- the new room was a kitchen. In planning term, this was not a habitable room. As there was a work top and sink next to the window in question, it would afford only limited views across Mr W’s garden;
- the new window was only a replacement for an existing one. This would not normally require planning permission, even though the internal layout had changed;
- the relocation of the door also did not require planning permission. It was not unusual for a side door to face a driveway, and the neighbouring boundary;
- he further noted Mr W’s view that the new position of the doorway to the hall would result in an unacceptable increase in noise and disturbance. But, the Local Planning Authority had no powers in relation to increased activity and noise arising from a new extension; and
- if Mr W considered this was a significant problem causing a noise nuisance, he could contact Environmental Protection officers for further advice.
- Mr W remained dissatisfied and escalated his complaint early in September. The Council’s Planning Services Manager responded to Mr W early in October at stage 2 of the complaints procedure. The manager said:
- the drawing detailing the proposed elevations clearly showed the new position of the window. This could be compared with the drawing of the existing elevations. Officers had uploaded both drawings to the Council’s website early in December 2017;
- the uploaded drawings of the existing and proposed floor plans also indicated the changed position of the window and door;
- she understood there was previously another entrance at the front of the house. But, there was also an existing door in the side elevation that residents and visitors would have been able to use;
- she agreed with the complaints officer that a side door was not an unusual feature in a bungalow. However, a group manager from Planning Services had re-assessed matters. He had agreed the changed position of the door would not lead to any detrimental increase in noise; also
- the Local Planning Authority could not refuse planning permission simply because a development might have a detrimental impact. Officers had to consider if conflicted with relevant planning policies. if so, they had to assess the severity of the impact, and whether this was sufficient to justify a refusal of planning permission;
- overlooking was a material planning consideration where it led to an intrusion of privacy that would be considered harmful. There was no statutory definition of overlooking. This was a matter for planning officers’ professional judgement;
- under permitted development rules, the applicant could have altered the position of the window in the existing building. This would have been outside the control of the Local Planning Authority; but
- as this alteration was part of a planning application, planning officers had had the opportunity to look at the matter;
- they could only consider a window to be “main”, when it was in a location where someone might sit and enjoy the view for extended periods of time. They did not consider the window in question to be a main window to a living and dining room; but
- they accepted that the delegated report did not assess the impact of the new kitchen window, and there was some level of overlooking due to the window’s proximity to the boundary. The intervening landscaping reduced the impact on Mr W’s amenity; but
- they agreed the section of hedge that would screen the new kitchen window was deciduous and could provide only limited screening during the winter months; so
- the Council was offering him the sum of £200 to purchase evergreen hedging to plant inside his boundary to complement the existing mixed hedgerow. The Landscapes Team had agreed this would be feasible;
- she apologised for this error. She would ask the Head of Development Management to remind case officers of the need to fully appraise distances and the potential for overlooking. They should be more explicit in considering these issues, so as to prevent recurrences; and
- she further agreed there were inaccuracies in the stage 1 complaint response. She apologised for this, and for the time and effort it had cost Mr W to point these out to the Local Planning Authority. She had discussed matters with the complaints officer, and the Group Leader would review future complaint responses.
The Council’s further comments
- The Council further told me that the kitchen window did not directly overlook Mr W’s bedroom windows. It had a work top and sink in front of it. The window was 2.45 metres from the boundary. So, it only marginally fell short of the expected separation distance.
Was there fault and if so, was there injustice requiring a remedy?
The kitchen window
- I do not consider the plans were unclear or difficult to read. But, it should not have been necessary for Mr W to comment on the degree of overlooking he thought he would experience. The case officer should have properly assessed this issue anyway. Instead, the officer misunderstood the position of the proposed kitchen window in relation to Mr W’s patio area. The statement in the report that the position of the window did not differ from the existing, and that there was a negligible impact on the neighbours’ privacy, was misleading for the decision maker.
- Consequently, the Council approved the insertion of a kitchen window that directly overlooked Mr W’s private amenity space immediately to the rear of his dwelling. Also, from the photographs I have seen, the ground level of the application site is slightly higher. So, the window is at a slightly higher level too. All this appears to conflict with the Council’s Household Design Guidance. I note the Council’s view that it was not a main or secondary window, and had a sink in front of it. But, people can be standing at their kitchen sinks for quite long intervals of time.
- On balance, I am persuaded there is doubt about whether the Council would have approved the development in that precise form, if officers had correctly understood the position of the window. In saying this, I have been mindful that the proposed window was also less than the recommended distance from the boundary, even without the difference in ground levels.
- I note what officers have said about the applicant being able to insert the window in that position as permitted development. But, as the Council has said, it had the opportunity to assess matters as part of a planning application. This meant it also had the opportunity to protect Mr W’s future amenity by requiring the applicant to provide a suitable boundary treatment, or by restricting permitted development rights in relation to openings in that side elevation.
- With regard to the door, I accept the Council’s view that:
- this would not overlook Mr W’s bedroom windows, which are in the rear elevation of his home;
- this is not an unusual arrangement in a bungalow; and
- there was already a door in use in this side elevation, although not in the same location.
The stage 1 complaint response
- The Council’s stage 1 complaint response was incorrect in perpetuating the view that the window would be in the same position as the existing one. This was fault which caused Mr W the stress, time and trouble of having to escalate his complaint and pursue matters further.
- I also found the stage 1 response unhelpful in referring Mr W to the Environmental Protection Team if he thought use of the door was causing a nuisance. But, there is not a statutory nuisance where the noise complained of is caused by normal day to day activity. Realistically, making a noise complaint could not assist Mr W. In this instance, it would have been better if officers had thought matters through and either not given or qualified this advice.
- I asked the Council to utilise its inhouse or contractor’s landscaping and horticultural expertise to advise Mr W about the best type of boundary treatment, and to arrange and pay for the planting of this. This was instead of the Council’s voluntary offer to pay Mr W £200 towards the cost of planting. But, Mr W told me neither remedy will now be necessary, as his neighbours are willing to resolve the issue of overlooking by erecting fencing along the side boundary.
- However, the Council has also agreed to:
- pay Mr W the sum of £100 for the stress, time and trouble that fault in the stage 1 complaint response caused him; and
- provide me with evidence of the procedural improvements it has undertaken to make. These should include ensuring case officers understand the importance of proper assessment of overlooking issues; and training along similar lines for complaint investigation officers who are not planning professionals to enable them to make correct and defensible decisions.
- As the Council has agreed to my proposals for settling matters, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman