North Devon District Council (18 014 430)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 29 Apr 2019

The Ombudsman's final decision:

Summary: Mr B complains about the Council’s handling of his neighbour’s planning application for an extension. Mr B says the Council did not adequately consider the impact on his garden of overlooking from the new first floor window. There was fault by the Council in the description of the impact of the development on Mr B’s property. But that does not call into question the decision made.

The complaint

  1. Mr B complains about the Council’s handling of his neighbour’s planning application for an extension. Mr B says the Council did not adequately consider the impact on his garden of overlooking from the new first floor window. He says that his private patio will be overlooked from the window.

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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), as amended)
  2. 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)

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How I considered this complaint

  1. I considered the complaint and spoke to Mr B. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of this statement to Mr B and the Council and invited their comments

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What I found

  1. Mr B lives in a detached house. His neighbour applied for planning permission for a two storey extension over the garage which is next to Mr B’s property. Mr B is concerned about the window in the first floor of the rear elevation of the extension. He considers this will overlook his garden and in particular the private patio he has next to the boundary.
  2. Mr B objected to the planning application and when it was approved he complained to the Council. The Council responded to Mr B. Mr B was dissatisfied with the responses from the Council so complained to the Ombudsman.

Analysis

  1. The Council must consider the relevant material planning considerations when deciding a planning application. That includes the impact on neighbouring amenity. But proposed development can have an adverse impact on neighbouring property and that does not mean an application must be refused. The Council has to consider the degree of impact and decide if it is so great that conditions should be imposed to make the development acceptable. Or, if that is not possible, refuse the application. My role is to consider whether here has been any fault by the Council in how it has considered the application which is so significant that it could have affected the decision made.
  2. Mr B was concerned that the Council had not viewed the site from his property when considering the application. There is no requirement for the Council to visit neighbouring property when considering a planning application. I cannot, therefore, say there was any fault here.
  3. The officer report on the application refers to Mr B’s property. It wrongly refers to there being a high concrete wall on the boundary which will screen the majority of the view of the extension from Mr B’s property. There is not a concrete wall but a six feet high fence. Mr B makes the point, which I accept, there is no screening from his patio of the development. The Council has said the reference to a wall was an error in the report but the officer who visited the site, and made the decision on the application, knew it was a fence on the boundary. This error in the description of the development and its impact on Mr B’s property is fault.
  4. Where there has been fault I need to consider what difference this has made to the decision made. The photographs taken by the case officer show they visited the site and would have seen the fence on the boundary with Mr B. The crux of the complaint is the consideration to the potential for overlooking from the new window. Because the development site and the window is set back from Mr B’s house there is a potential for downward looking, at an angle, into parts of Mr B’s garden and a patio he has next to the boundary. The report on the application refers to Mr B’s property and says there are already two large windows on the rear elevation so the addition of one further window which is set back will not cause a significant enough impact on the garden in terms of overlooking to warrant a refusal of the planning permission.
  5. In responding to my enquiries the Council expanded on this point. It said the window was on the southern elevation of the extension and would primarily face south and would be directed over the applicant’s own garden. Any view into Mr and Mrs B’s garden was not direct but at an angle and was partial and oblique. Given the urban context and the presence of existing windows the additional window was not considered to result in such an impact that the scheme could reasonably be refused on amenity grounds alone.
  6. I understand why Mr B is concerned as the new window could provide a greater degree of overlooking of his patio from someone standing in the window and deliberately looking down and to the side. But, as the Council says, the window is not facing Mr B’s garden and this is an urban area. The Council has provided reasons why it considered the relationship is acceptable and that is taking into account it will not be screened when viewed from Mr B’s patio. I accept the reasoning provided by the Council and do not consider there would have been grounds for the Council to refuse or condition the application based on the impact on Mr and Mrs B’s property.
  7. Mr B considers the Council has in effect disregarded the Parish Council’s comments. This is because the Parish Council commented that it did not object to the application provided there was no adverse impact on neighbouring amenity. As he considers it does have an adverse impact then the Parish Council would not have supported it. I explain above why I am satisfied that there was no fault in the decision about the impact on Mr B’s property.
  8. Mr B considered his suggestions to alter the internal layout of the extension so that the rear window could be obscure glazed were disregarded. The Council must consider the application made. Here the Council did put Mr B’s suggestions to the applicant but they did not wish to make any alterations to their proposals. As the Council was satisfied that the proposals as submitted were acceptable in planning terms it had no grounds to pursue this further with the applicant.

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Final decision

  1. There was fault by the Council in the description of the impact of the development on Mr B’s property. But that does not call into question the decision made.

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Investigator's decision on behalf of the Ombudsman

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