Summary: Mr B complained about the way in which the Council granted planning permission for development near his property. We found there was fault by the Council for including the wrong separation distance in the case officer’s report but consider this error did not affect the decision that was made.

The complaint

1. Mr B complains that Wycombe District Council (the Council) in respect of a planning application near his property:
• failed to properly consider the impact on his amenity of the four large first-floor windows;
• wrongly compared the impact to an existing first floor window in a different property which is much smaller and does not look directly into his bedroom;
• wrongly measured the window-to-window distance between his property and the new development; and
• failed to properly explain why the departure from the Council’s residential design guide was acceptable.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.

Back to top

What I found

Adopted Local Plan 2004 – Appendix 1

5. This section of the old local plan stated that:

A reasonable degree of privacy should be afforded to all residential units within the private realm (ie the back and sides of the plot) …The separation between facing windows in the private zone can be achieved by a minimum distance of 25 metres. However 30 metres is preferred…The particular circumstances of each case will be considered against the privacy criteria above. Where it can be demonstrated that privacy can be achieved by other means...privacy distances between facing windows in the private zone may be reduced.

Residential Design Guide (adopted June 2017)

6. The guidance in the local plan was updated in June 2017 and says development should aim to achieve privacy by maintaining a minimum gap of 25 metres between the backs of houses.
7. It also says that the 25 metres can be reduced within existing more traditional layouts where back to back distances are needed to maintain the existing character of the area and the layout retains the residential privacy of existing residents.

What happened

8. In 2016 the Council received a planning application for an extension to a property to the rear of Mr B’s property. He objected to the development saying the first-floor rear windows would overlook his property.
9. The case officer visited the site, took photographs and assessed the relationship between the proposals and the surrounding properties. Their notes show that they considered the relationship with the properties to each side which were much closer.
10. The case officer wrote a report assessing the application. In this they referred to Mr B’s property saying that his garden, and that of the neighbouring properties were not isolated or secluded. It also said that Mr B’s property was over 30 metres from the new house and there would be no detrimental impact.
11. The Council approved the application with some conditions protecting the amenity of the houses to each side.
12. Towards the end of 2018 when the work was nearing completion. Mr B complained to the Council that the rear first floor windows, including a floor to ceiling bathroom window, directly overlooked his property.
13. The Council replied to the complaint saying that the decision had made in accordance with the local development plan policies and his objections had been carefully considered.
14. Mr B was dissatisfied with the response and complained again saying he could see a toilet next to the window which was unpleasant and unacceptable.
15. The Council replied again saying that Mr B’s objections had been fully considered and the application properly assessed. It accepted that the overlooking was greater than previously but was not significant enough to refuse planning permission. It repeated the view that Mr B’s property was 30 metres from the development and that this was within the parameters set out in the adopted local plan.
16. Mr B escalated his complaint and the Council replied in February 2019. This time the Council undertook a thorough analysis of the impact of the development on Mr B’s property with photographs and drawings. It concluded that there was no undue loss of privacy from the ground floor aspect of the development. In respect of the first floor it noted that the rear elevation of the house was 2.5 metres closer than the previous building and included four larger windows serving two bedrooms and an en-suite bathroom. It noted that the adjacent property already had a first-floor bedroom window at a similar distance from Mr B’s property.
17. It acknowledged that the officer had made an error in the previous report and used the wrong scale to calculate the separation distance. The Council said the distance was 22 metres rather than 30. It considered the perception of overlooking was exaggerated by the size of the windows and the lack of blinds/curtains (as the property was unoccupied) but said the overlooking was no greater from a larger window than from a smaller one.
18. The Council also explained the changes in the residential design guidance over time, reflecting the need to meet increasing housing demand and make the best use of urban land. It said the ultimate decision as to what was acceptable was a matter of judgement for the Council to make: 25 metres was only a guideline and distances below this did not make a proposal automatically unacceptable.
19. The Council agreed that the development changed the relationship between the two properties but considered it did not create an unacceptable level of overlooking.
20. It apologised for the scale error made by the case officer but was satisfied they had visited the site and were aware of the relationship between the properties when they wrote the report.

Analysis

21. The Council was at fault for stating in the report and for repeating in two complaint responses that the distance between Mr B’s property and the first-floor rear windows of the extended property was over 30 metres. This caused Mr B frustration as he felt the Council had made the decision on incorrect information and that he was being ignored when he tried to point it out.
22. However, I am satisfied that the Council was aware of the relationship between the two properties when it made its decision. The case officer had visited the site, taken photographs and evidently assessed the relationship with the nearer adjacent properties.
23. In the final complaint response the Council has done a thorough analysis of the relationship between the site and Mr B’s property using more accurate distances and explaining why the Council considers the impact is acceptable, including reference to the residential design guide and its application. This should have been done within the original report, given the separation distance was below the minimum guideline of 25 metres. The Council has apologised for the error. I consider this is sufficient action to put matters right, as the decision would not have been different, even if the correct separation distance had been included.
24. I understand Mr B considers the impact is not the same as that from the existing first floor window in the adjacent property and disagrees with the Council’s analysis on this point. It is not my role to substitute my judgement for that of the Council. I am satisfied that the Council has properly considered Mr B’s objections and given its view on the impact on his amenity. Mr B may disagree with the conclusions reached but I cannot find fault with the way the decision was eventually made.

Back to top

Final decision

25. I have completed my investigation as I consider the Council has taken sufficient action to put right the fault in the planning report and no further remedy is warranted.

Back to top

Investigator's decision on behalf of the Ombudsman