Summary: Mrs X complains about the way planning permission was granted for a new build that backs onto her property. She says the Council failed to consider the impact on her property, did not notify her, and failed to visit her property. She says this has meant her property is overlooked and there is a loss of privacy. The Ombudsman does not uphold Mrs X’s complaint. This is because there is no evidence of fault.

The complaint

1. The complainant, who I refer to here as Mrs X, complains about the way planning permission was granted for a nearby development. She complains that the Council:
1. failed to properly consider the impact of the new development on her property;
2. failed to notify her of the planning application; and,
3. failed to visit her property.
2. Mrs X says the new development completely overlooks her back garden causing a loss of privacy. She believes it will have an impact on her property’s value. She says she will have to protect her privacy by building a substantial raised bed patio.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
6. I have seen the relevant planning documents which are available on the Council’s website. I have considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

Legislation, guidance and policies

Planning applications

7. The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise.
8. Material planning considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
9. Councils’ planning powers are set out in Part VII of the Town and Country Planning Act 1990. Planning powers are discretionary. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
10. Councils must be able to show they have considered the material planning considerations. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
11. Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission. A senior planning officer will then decide most applications, but some go to the council’s planning committee for councillors to decide the application.
12. Policies and the supplementary planning document must be taken into account but are not to be treated as if they create binding rules.

Advertising planning applications

13. Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 deals with publicity for applications for planning permission. It says applications must be publicised in two ways: 1) with either a site notice or by serving notice to any adjoining owner or occupier; and 2) in a local newspaper.
14. Site notices must be on display in at least one place on or near to the land the application refers to for a minimum of 21 days. If a site notice has been removed, obscured or defaced before the end of the 21-day period, without any fault or intention by the local planning authority, the authority will be seen as having complied with the law. This is as long as it has taken “reasonable steps” to protect the notice.
15. An adjoining owner or occupier is defined as an owner or occupier of any land which adjoins the land the application refers to.

The Council’s planning policies

16. The Council has a Residential Design Supplementary Planning Document published in 2014. This says:

“Homes should provide a comfortable, safe and private space … In order to ensure this can be achieved minimum separation distances should be applied having regard to site conditions and context. Separation distances should have regard to the location … the character of the area and topography … On sloping sites, there may need to be greater distances between properties or a change to the orientation of buildings to avoid overlooking.”

17. This policy sets out the minimum distances that should be maintained between the windows of ‘habitable rooms’ in both the existing and proposed dwellings. These distances vary according to the angle of the line of sight between the windows.

What happened

18. Mrs X lives in a property which shares a boundary with the development site (to the rear of the site, and to the side of Mrs X’s property). Because the area is hilly, the new dwelling’s first floor rear windows look out onto the back of Mrs X’s property, and onto her patio.
19. In March 2018, the Council received the planning application for this new house. The Council sent a letter to Mrs X notifying her of the planning application. The Council also put up a site notice on a lamp post on the road where the build was taking place.
20. In May, the Council granted planning permission.
21. During the build, the Council received a complaint about the distance between the rear of the development and the boundary. The Council visited the site to see if there had been a breach of planning control.
22. The enforcement officer who visited the site spoke to the owner. The officer took measurements and found that it was being built in accordance with the plans. The Council took no further action.
23. In November, Mrs X complained to the Council. She said the Council had failed to properly consider the impact of the proposed development on her property. She said she was not able to object because she did not receive any correspondence about it.
24. Mrs X said she did not see the site notice because she has no reason to walk down that road, it being a cul-de-sac. She said the Council failed to consider the differences in ground level between the development site and her property, which is higher up the hill. She asked the Council to visit and see the impact.
25. Later that month, the Council sent its stage one response. It said the planning application was approved after it consulted with local residents and fully assessed the proposal. It confirmed that a notification letter was sent to her in March. It said that a site notice was posted in the area. For these reasons, the Council was satisfied it had made every effort to ensure neighbours were notified.
26. The Council said planning permission was granted after it was concluded that the proposal would not result in any significant impact on the amenity of the surrounding area or neighbours.
27. The Council said the case officer’s report referred to ground level changes along the road where the house was built. It said that while the case officer’s report did not explicitly refer to the ground level change between the site and Mrs X’s property, photos showing the ground level changes were added to the file for consideration.
28. The Council said it had fully assessed the loss of privacy and overlooking on all neighbours. It said it had done an assessment of the separation distances between the windows of habitable rooms in the development and Mrs X’s property. It said scaled plans showed the distance between these windows was approximately 21 metres.
29. The Council said that 18 metres is the minimum separation distance to ensure an appropriate level of privacy is retained, considering the angle of direct line of sight between the windows. It said the distance between the windows at the site and Mrs X’s property was above the minimum, so it considered the distances between properties was appropriate.
30. The Council said the area directly overlooked by the rear windows was 12 metres from the rear of Mrs X’s property, which complied with its policy. It said that because the proposed plans complied with minimum separation distances, noting the distance of the proposed dwelling from Mrs X’s property, it was not necessary to detail this assessment in full in the case officer’s report.
31. In December, Mrs X asked that her complaint be dealt with at stage two of the complaints process. She said she did not get the letter notifying her of the planning application. She said the Council did not put up the site notice appropriately. She said the Council should have put up another site notice on the road she lives on, which is adjacent to the road the development was being built on.
32. Mrs X said the case officer’s report noted a difference in ground level for one neighbouring property, but her property is higher than that.
33. Mrs X complained that the Council said loss of privacy and overlooking was assessed for all neighbouring residents, but the case officer’s report did not refer to her property. She said the report did not say that three first-floor windows would overlook her property. She said the report did not look at the distance between these windows and her garden or consider the impact that would have. Mrs X again asked the Council to visit to see the impact.
34. Later that month, the Council sent its stage two response. It said the letter advising Mrs X of the application was posted, along with other residents, in March. It said that if she did not receive the letter, she needed to raise this with the Post Office. It said a site notice was put up on a lamp post on the road which the site fronts onto. For these reasons, the Council said it had met its legal obligations to advertise the planning application.
35. The Council said it had reviewed the file and confirmed that it had considered all material planning matters. It said it had followed its policy on overlooking. It said the distances had been measured using scaled plans and the Council’s own system.
36. The Council said a visit to Mrs X’s home was not necessary because the proposal complied with all national and local policy and guidance. It said it was satisfied that officers had “fully taken into account the impact of the proposal on the residential amenity of all neighbouring occupiers, including [Mrs X]”.

Analysis

Consideration of the impact on Mrs X’s property

37. Mrs X complains the Council failed to properly consider the impact of the new development on her property (part a of the complaint).
38. The case officer’s report notes that there are ground level changes along the road the development was built on. The report says the proposed house would be 0.5 metres higher than the property next door (not Mrs X’s property). It said that any overbearing impact would not be significant enough to justify refusing planning permission.
39. The case officer’s report says that the overlooking impact on neighbouring properties was fully assessed. It discusses the impact on the neighbours to either side, but it does not mention Mrs X’s property that borders the site to the rear.
40. The Council says it is not general practice or procedure to refer to its assessment for all neighbouring properties, particularly when the proposal complies with the Council’s policy and guidance.
41. I would not expect a case officer’s report to set out their consideration of the impact on every neighbouring property.
42. In this case, the case officer set out her assessment of the impact on the closest properties to the development site, which were less than two metres away from the site. Mrs X’s property is approximately 20 metres from the development.
43. For this reason, I do not find the Council at fault for not detailing its consideration of the impact on Mrs X’s property in the case officer’s report.
44. The Council’s Residential Design Guide outlines the minimum distances between habitable room windows from one property to another. This is to make sure there is an appropriate level of privacy for neighbours. This guide considers the angle between the windows, and sets distances according to how directly the windows face each other.
45. The Council considered the impact on Mrs X’s privacy by looking at the angle between the windows at the rear of the new dwelling and the windows at the rear of Mrs X’s property. It then calculated the distance between these windows. The Council says this distance is between 19 and 20 metres.
46. The Council’s policy says that the minimum separation distance between habitable room windows for the angle in this case is 18 metres.
47. I find that the approved plans are in line with the Council’s policy on overlooking. I also find that the Council considered the impact on Mrs X’s property.
48. Mrs X says the Council failed to consider the difference in ground level between the development site and her property.
49. The case officer’s report refers to ground level changes between the development site and the next-door property (not Mrs X’s property). However, there are photos on the Council’s file showing the ground level difference between the development site and Mrs X’s property. The Council says these were taken and put on file for consideration.
50. While the case officer’s report does not explicitly refer to the ground level change between the site and Mrs X’s property, I do not find this is fault. I would not expect a case officer’s report to detail the ground level change for each adjoining property, particularly when the impact of ground level changes to the nearest, or most significantly impacted, property have been considered in the report.
51. I must point out that the ground floor windows of the new property look out onto a fence. Only the first-floor windows look out on to Mrs X’s property. For this reason, the Council would have been at fault if it had calculated the distance between Mrs X’s rear windows and the development’s ground floor windows.
52. The fact that the Council calculated the distance between Mrs X’s ground floor rear windows and the development’s first-floor windows shows that the Council was aware of the ground level differences, and considered them. Because of this, I do not find fault with the Council.
53. Just because a development overlooks, or will overlook, an existing property, this does not mean planning permission should not be granted. Councils have to show they have considered the matter of overlooking. I find that the Council has shown it considered overlooking, so I do not find fault here.

Notification of the planning application

54. Mrs X complains the Council failed to notify her of the planning application (part b of the complaint).
55. Mrs X does not think that posting notifications on the adjacent road is good enough. She says a site notice should have been put up on her road because the development site has a boundary with her property. She also says this should have been done just in case the neighbours on her road did not get the site notification letter.
56. As I have said in paragraphs 13 and 14, the law says planning applications must be advertised in one of two ways: 1) with either a site notice or by serving notice to any adjoining owner or occupier; and 2) in a local newspaper.
57. The Council put up a site notice and sent neighbour notification letters, including one directly to Mrs X. The fact that Mrs X did not receive the letter is not evidence of fault. The Council did not have to send the neighbour notification letter as well as put up a site notice. The fact that it did send the letter is evidence of good practice.
58. The law says site notices must be on display in at least one place on or near to the land the application refers to. The Council put up a site notice on the road the development was being built on. This is appropriate. The fact that Mrs X did not see it is not evidence of fault by the Council.
59. The Council put up the site notice in line with law. For this reason, there is no evidence of fault.

Visit to Mrs X’s property

60. Mrs X complains the Council failed to visit her property (part c of the complaint). Mrs X thinks the Council should visit her to see the impact.
61. There is no requirement for a council to visit a neighbour’s property, either during or after the planning process. Councils are entitled to use plans and maps to assess the impact. This is what happened in this case.
62. For this reason, I do not find the Council at fault.

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Final decision

63. I have completed my investigation. I do not uphold Mrs X’s complaint. This is because I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman