Summary: Mrs X complains about the Council’s decision to approve a planning application, resulting in her suffering loss of light, privacy and access. She also complains the Council failed to provide a final response to her complaint, causing distress. The Ombudsman finds fault in the Council’s decision making process, but finds this caused no significant injustice. The Ombudsman finds fault in the Council’s handling of Mrs X’s complaint and recommends it provides an apology and acts to reduce the risk of recurrence.

The complaint

1. Mrs X complains about the Council’s decision to approve a planning application. She says it failed to properly consider the effect on her amenity, resulting in her suffering loss of light and privacy. She says it also failed to consider the loss of vehicle access to her property.
2. Mrs X also complains the Council failed to provide a final response to her complaint. She thought the Council would ask to revoke the planning permission but there was no final response to confirm this, causing confusion and distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault 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), as amended)
4. 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)
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)

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How I considered this complaint

6. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I also reviewed planning documents available on the Council’s website. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

7. A council must decide on a planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Material considerations include the impact on residential amenity, such as loss of light and loss of privacy. A council must be able to show it has considered material planning considerations.
8. Planning officers usually decide on applications but a council may refer an application to the Planning Committee.

Council complaint policy

9. The Council publishes its complaints process on its website. This says it has a two stage complaints process and will provide a written response at each stage.

What happened

10. Mrs X lives in a ground floor flat within a Victorian terrace, at the back of a mixed use building. Her flat and its walled courtyard originally sat within the grounds of a commercial building, Building A. Her front door was originally next to an access road on the development site. Mrs X says she has a right of way to use this road for vehicle access to her property.
11. In 2017 a developer applied to demolish Building A and build a mixed use development. This would be taller than Building A and include residential use. The developer provided a Daylight Study to support the application. The study assessed the loss of light to neighbouring properties. I note it considered the impact to every relevant window, including those of Mrs X’s property. It found the development would have a relatively low impact on the light received by neighbouring properties and would not affect garden areas.
12. Mrs X objected to the planning application for the following reasons:
• Her property would be overshadowed leading to loss of light and privacy;
• There would be noise from a car park;
• Her courtyard would no longer be secured at night within the grounds of Building A;
• She would lose the vehicle access to her property.
13. A planning officer produced a report for the Planning Committee (the “Committee report”) recommending the Council approve the application. I note the following key points:
• The officer sets out his consideration of the planning application, with reference to the local plan and relevant policies.
• The officer describes the site. This includes a description of the neighbouring terrace, with ground floor flats at the rear. (I note Mrs X’s flat is one of these.)
• He summarises the consultation responses. This includes a response from the Highways Authority. This notes the existing vehicular access to the site will be closed. This will be replaced with a new access road for vehicles and pedestrians. The Authority is satisfied the site complies with planning policy.
• He summarises the objections made, including those of Mrs X.
• The officer sets out his consideration of material considerations, including the impact on residential amenity, parking and access.
• As Building A was a long established retail use, the continued presence of a business would not in itself cause harm to residents.
• The development is substantially taller than Building A.
• The Daylight Study shows there will not be unacceptable loss of light to the upper floor windows of the flats within the Victorian terrace. The ground floor flat’s rear view is substantially screened by their back wall anyway.
• Unacceptable overlooking from the first floor windows is avoided as the windows are misaligned, and they will have obscured glazing and obscured glass balconies. The Council could secure these features with a condition.
• The applicant confirms the development does not affect rights of way to the flats in the Victorian terrace.
14. A Planning Committee considered the Committee report, site plans and photos. Mrs X spoke at the committee meeting. The Council has provided a recording of the Planning Committee minutes. I note the following points:
• Mrs X explained to the Planning Committee the location of her flat.
• Mrs X expressed concerns about loss of light, loss of privacy, noise, access and security.
15. The Planning Committee considered all the information provided and approved the planning application with conditions.
16. Mrs X complained to the Council about its decision. In summary she said:
• The Committee report did not mention her flat;
• The development will remove her right of way;
• The new flats will have a view into her living room and courtyard;
• Her wall will not prevent overlooking from the upper flats and balconies;
• No sunlight will reach her courtyard.
17. The Council explained any dispute over rights of way was a private matter between Mrs X and the developer. It found the case officer was mistaken to say her wall screened her property but said this would not have affected the decision. This was because the Council considered the overlooking was not unacceptable provided there was obscured glazing and balconies.
18. The Council accepted the Committee report could have included more detail about loss of light. The Daylight Study showed there would be loss of light to Mrs X’s property. However, having regard to the nature of the surrounding development, the Council did not believe it would have refused planning permission.
19. Mrs X disputed the accuracy of the Daylight Study and on 23 February 2018 the Council agreed to review this.
20. Mrs X chased the Council for a response on 19 and 20 March. She also made clear she was unhappy with its previous response to her complaint.
21. On 20 March the Council said it was completing its stage 2 report and hoped to send it the next day. It confirmed the developer knew it was reviewing the file and that a request had been made to revoke planning permission.
22. On 20 April Mrs X chased the Council again. She wanted its findings in relation to the Daylight Study and queried if this was the basis for its request to revoke planning permission.
23. Mrs X then complained to the Ombudsman. She said she had not received the Council’s response to her stage 2 complaint. She explained the last correspondence she received from the Council suggested it had asked to revoke the planning permission.
24. The Council told the Ombudsman its Head of Planning had reviewed the correspondence exchanged with Mrs X, the Daylight Study and the transcript of the Planning Committee meeting. The officer concluded the Daylight Study was a robust assessment of the situation in terms of the normal BRE calculations and guidance. The Study acknowledged the existing building affected light into Mrs X’s windows and demonstrated that the development would result in some additional loss of daylight and sunlight. But it sought to demonstrate that the difference before and after was marginal and that the BRE Guide is to be used flexibly particularly in urban locations and where redevelopment seeks to match the height and proportions of other existing buildings. The Council said the Planning Committee had all the relevant information to make an informed decision on the planning application. (I note “BRE” refers to the Building Research Establishment, a company that produces advice and guidance on planning developments).
25. The Council said it provided a verbal response to Mrs X at stage 2, however Mrs X disputes this. The Council also confirmed it did not complete a written stage 2 report and therefore cannot provide a copy.

Findings

26. I cannot question whether the Council’s decision is right or wrong simply because Mrs X disagrees with it. I must consider whether there was fault in the way the decision was reached.
27. The Council must decide a planning application in accordance with the development plan and take into account material considerations, including the impact on residential amenity. The Committee report shows consideration of the development against the local development plan. It also considers the effect on residential amenity. But it does not directly address whether Mrs X’s property will suffer from further loss of light. I find this amounts to fault.
28. The Planning Committee considered the Committee report and had access to the Daylight Study and plans of the site. The Committee also heard from Mrs X as to the exact location of her flat and how the development affected her. I am therefore satisfied the Planning Committee took into account all relevant information in making its decision. However, I must consider whether the fault in the Committee report affected the outcome of this decision.
29. The Council has since considered Mrs X’s complaint. It finds the loss of light to Mrs X’s property is marginal and notes some loss of light is allowable under the relevant standards. It says it would not therefore have refused planning permission based on loss of light. I am satisfied the Council took relevant information into account in reaching this decision. It has considered the impact on Mrs X’s residential amenity with reference to the relevant guidance and decided it would not have refused planning permission. I appreciate Mrs X disagrees with this view, however I find the Council has followed a proper decision making process. Therefore, while I have identified fault, I find this did not affect the decision outcome and so did not cause a significant injustice to Mrs X.
30. Mrs X’s property is surrounded by a high wall but she remains concerned about overlooking from first floor flats and above. The Committee report evidences the Council considered the planning application in accordance with the local development plan and considered the impact on privacy. The report sets out the officer’s reasons for concluding the level of overlooking is acceptable. The Planning Committee considered the Committee report and also heard from Mrs X as to the exact location of her flat and how the development affected her. I am therefore satisfied the Council took into account all relevant information in making its decision. I cannot say the Council’s decision is wrong where it has followed a proper decision making process. I therefore find no fault by the Council.
31. The Council did not provide a written response to Mrs X at stage 2, in line with its published complaints process. This is fault. Although the Council says it provided a verbal response to Mrs X, there is no evidence of this and Mrs X disputes receiving any response. As a result Mrs X was unaware of the Council’s final position on her complaint, causing her confusion and distress.
32. I note Mrs X no longer benefits from the vehicle access road, which has been moved to another part of the site. The Committee Report shows the Council considered access to the development and reports the developer’s view that no rights of way are affected. The Council later made clear to Mrs X it would not consider the impact on any private rights of way, as that would be a private matter, not a planning consideration. I find the Council is correct. Planning is concerned with land use in the public interest; the protection of purely private interests such as a private right of way; is not a material consideration.

Agreed action

33. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Provide Mrs X with a written apology for failing to provide a written response at stage 2;
• Take steps to ensure it provides written complaint responses in future;
• Take steps to ensure it keeps a record of key discussions with complainants.
34. The Council has accepted my recommendations.

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Final decision

35. I find fault but no injustice in the Council’s decision on the planning application. However, I find fault causing injustice in the Council’s complaint handling. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman