Summary: Ms X complains the Council failed to consider the impact of a neighbour’s extension on to a small bedroom window of her property. The Council has accepted it was at fault. It has already apologised and offered a payment in recognition of the distress caused which is a suitable remedy in this case.

The complaint

1. The complainant whom I shall refer to as Ms X complains the Council failed to tell her of a neighbour’s planning application to develop his property. So, she could not send her objections to the proposal. Ms X also complains the Council failed to consider the impact of the proposed development onto her amenities. Ms X says she has suffered loss of privacy and will now be overlooked.

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The Ombudsman’s role and powers

2. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

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

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), as amended)

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How I considered this complaint

4. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Ms X and the Council and considered the comments received.

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What I found

5. Ms X lives in a row of five terraced houses. Although they adjoin each other the houses are stepped forward and back from each other. Ms X’s neighbour, Mr Y submitted a planning application to the Council to build a two storey and a one storey rear extension at his property. Mr Y’s property is stepped forward to Ms X’s so the proposed extension would finish level with the rear of her property.
6. The plans show a first-floor walk-on terrace area above the ground floor extension accessed through doors on the first floor. The terraced area is next to Ms X’s bedroom.
7. The Council validated the planning application and its records show it issued 12 neighbour notification letters to properties near to the site including Ms X.
8. The planning case officer visited the site and met with Mr Y and his architect. The Council says there are no site visit notes although the officer took some photographs. The Council considered the application under officers’ delegated powers, so the case officer prepared a planning report on the proposal.
9. The report explained the proposal to build a two storey and rear extension to the property. The report noted an officer site visit to Mr Y’s property. The report outlined the notification carried out. It said the Council received one letter of objection, but this had been withdrawn. The report noted relevant planning policies and the officer’s assessment of the proposal. The officer referred to design and amenity. The first sentence of the officer’s consideration on design was incomplete. But the report goes on to say the officer considered the design of high-quality, sympathetic to the original building, modest in scale and respected the building form of the row of properties.
10. The officer did not consider the proposal resulted in any amenity issues. The officer said the extension was modest in scale and would not extend past the building line of either neighbouring properties. The officer considered there would be no material deterioration of daylight and sunlight as a result. The report does not refer to the proposed a walk-on terrace.
11. The officer recommended the Council approve the application. A senior officer considered the delegated report and granted planning permission.

Ms X’s complaints

12. Ms X became aware of the planning permission when Mr Y started building works and she viewed the plans. Ms X complained the Council failed to tell her about the application, so she had been unable to object. Ms X said the proposal would affect her family’s quality of life and there was no similar extension in the area. Ms X said the original staggered building of the houses was designed to provide privacy to neighbours.
13. Ms X said she would lose this privacy because of the extension and Mr Y’s plans showed a walk-on terrace above the ground floor extension accessed through large doors from the first floor. Ms X said the terrace was next to her property and her bedroom window had a small side return window to it which faced the boundary of Mr Y’s property. Ms X said it would have a devastating impact on to her privacy and the Council failed to take account of the impact onto her amenity.
14. Ms X also complained about the lack of health and safety of the building works and said they had been stopped due to this.

The Council’s response to Ms X’s complaints

15. The Council says its records show it told 12 addresses in the road and neighbouring streets of the application. It says it carried out notification according to planning law and the Council’s Statement of Community Involvement. The Council received one objection from a notified neighbour so considers it shows the letters were issued according to its usual procedures and obligations.
16. The Council accepts part of a sentence about the proposal is missing from the officer’s report. This should refer to the extent of the extension filing in half of the first-floor extension and rest being recessed. The Council says it is unclear why this was missing but maybe due to a technical error. The Council accepts a senior officer should have picked this up when reviewing the delegation report.
17. The Council accepts the planning report did not mention the issue of overlooking into Ms X’s rear garden or the side facing bedroom window. It says both are material planning considerations relevant to applying the Council’s policy on amenity.
18. The Council considers the relationship between the small outdoor area above the ground floor extension (with access doors from the first floor) and the rear garden of Ms X’s property not uncommon in a dense inner-city location. It says there are many examples of upper floor terraces to private gardens or amenity spaces next to private gardens or amenity spaces. And the Council has no specific planning policies against this. The Council considers the slanted overlooking from the first floor to Ms X’s garden would be like that of an enclosed room with a first-floor window. The Council says the position of the terrace to Ms X’s garden is not a reason to refuse planning permission.
19. But the Council accepts the relationship of the outdoor terrace as approved to the side facing bedroom window could cause direct overlooking. And the direct relationship affects the Council’s residential amenity policy. The Council accepts it did not properly consider or mitigate this when assessing the application.
20. The Council responded to Ms X’s complaints at Stage two of the complaint procedure. It apologised that, while the planning report looked at amenity, it did not assess the specific relationship of the proposed terrace to her side window. The Council considered it could not definitely say if it would have made a different decision had officers detailed this part of the plans or an objection from her might have prompted this.
21. The Council looked at the level of harm that might be caused to her. It said the plans showed a stone parapet about 400mm deep. It said the position of the parapet to Ms X’s side window limited the extent of the roof terrace. So, there was only a 150 mm of the return overlapping with the roof terrace. The Council considered it gave a slight opportunity for direct overlooking or serious loss of privacy. The Council said while regrettable it did not agree the impact on her amenity was as much as Ms X alleged.
22. The Council acknowledged the delegated report lacked an assessment of the relationship of the proposed terrace to her side window. It says it was an omission and a failure in the planning procedure which the Council regretted. The Council offered Ms X £500 for any inconvenience caused to her.
23. The Council says its Planning Compliance team has been monitoring Mr Y ‘s implementation of the permission to ensure compliance with the approved plans. The Council says it is not aware of any health and safety issues with the building works. But understands a party wall dispute between Ms X and Mr Y may have caused a temporary halt to building works.

Recent events

24. Ms X rejected the Council’s offer of compensation and sought advice from a building surveyor. The surveyor confirmed the lack of ‘fall protection’ on the first-floor rear extension roof did not comply with Building Regulations. This needs a minimum of 1100 mm guard and barrier at the edge of the roof.
25. The Council says the approved plans do not show a facility to stop a fall from height if the new area was used as a walk-on terrace. So, it does not comply with Building Regulations and using the terrace even for maintenance purposes would be a contravention.
26. The Council contacted Mr Y and London Building Control (the approved Building Control Inspector). The Council advised Mr Y to discuss proposals and seek advice on external protection with the planning service. This was before applying for planning permission or a non–material amendment of the existing permission due to no external protection shown on the approved plans.
27. The Council says Mr Y advised he had no plan to use the space as an outdoor terrace except for maintaining the roof if needed. Mr Y’s architect contacted the Council about amending to the approved plans to change the proportion and style of the rear windows. As part of the discussions the Council asked the amended plans to include a note to confirm access to the flat roof area will be for maintenance only and not for general use. The Council says Mr Y has agreed to this and it will provide the Council with additional planning controls over access to the area which can be enforce.
28. Mr Y submitted a non-material amendment application seeking amendments to the approved plans. These include changes to the window frames, alterations to the roof parapet detail and an additional note to say the flat roof is not permitted as a terrace area.
29. The Council validated the application. It is not required to carry out neighbour notification of a non-material amendment but it can be carried out at the Council’s discretion. The Council has advised Ms X it will carry out neighbour notification. So, Ms X will be able to comment on the proposal.
30. The Council says its offer of £500 compensation to Ms X still stands. In addition, it would be willing to consider meeting the reasonable costs of any proposed changes Ms X wishes to make to the affected side facing bedroom window to prevent direct loss of privacy. This may be such as fitting obscure glazing.

My assessment

31. The Council’s records show it issued 12 neighbour notification letters and it has provided a copy of the letter addressed to Ms X. The neighbour on the other side to Mr Y did receive a notification letter and sent comments to the Council. I consider this shows, on the balance of probabilities, the neighbour notification letters were issued. It is unfortunate Ms X did not receive the letter addressed to her property, but I cannot say it was due to any fault by the Council.
32. The Council’s records show there are no site visit notes but there are photographs and the officer met with Mr Y and his architect. The planning report also records the date of the site visit. I consider the officer’s report does show the case officer assessed the impact of the extension and its windows onto Ms X’s property. The officer did not consider it raised any issues in terms of impact onto Ms X’s amenity.
33. The missing sentence in the planning report shows the officer noted half of the area above the ground floor extension as being ‘recessed’. As part of the sentence is missing the assessment appears incomplete. It is unfortunate the Council missed the error when considering the application. I consider it is fault by the Council as the planning report is a publicly available document showing how it assessed and considered a planning application. The Council should ensure that any delegated reports are carefully proofread by officers and the senior officer reviewing the application.
34. Even with a completed sentence the report refers to half the extension on the first floor being recessed. It does not refer to the use of the area as a walk-on terrace or the window of Ms X’s property. This is fault by the Council. The Council has accepted that the full impact of the proposed extension on the living conditions of Ms X were not properly considered when the application was assessed, and permission granted. This has caused an injustice to Ms X as it has impacted onto her amenities and caused her distress.
35. The Council has investigated and apologised to Ms X for the omission. It has offered Ms X £500 in compensation which I consider is a suitable amount for the distress caused. The Council has also offered to meet the reasonable costs of any proposed alterations Ms X wishes to make to the side facing bedroom window to prevent direct loss of privacy to her bedroom.
36. I am aware Ms X does not consider it is a suitable offer or that she should change her property due to the Council’s error. But as planning permission has been granted for the extension, I consider it is suitable action for the Council to take. It is in line with any recommendation we would make to the Council to remedy the injustice caused to Ms X. It is open to Ms X to suggest changes to the Council for any other means of providing privacy to her small bedroom window for it to consider.
37. Mr Y has submitted a non-material amendment application to the Council to change some parts of the extension. Through discussions the Council has secured a note to prevent the walk-on area being used as a terrace. If approved the permission will enable the Council to gain some control over the use of the ‘terrace’. The Council’s actions in securing the non-material amendment application is more than we would usually recommend and so I do not consider any further investigation would achieve a different outcome for Ms X.

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Final decision

38. I am completing my investigation. This is because I do not consider I can add anything to the investigation already carried out by the Council. Or achieve anything more for Ms X.

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Investigator's decision on behalf of the Ombudsman