Summary: Mrs B complains that there was fault in the way the Council considered her neighbours’ planning application to extend their home. In particular she considers that the Council was wrong to approve a first-floor balcony with inadequate screening, which will affect her privacy. The Ombudsman has found no fault in the way the Council considered the application, so we cannot question the merits of the Council’s decision to approve the application.

The complaint

1. Mrs B complains that there was fault in the way the Council considered her neighbours’ application to extend their home. She says the Council did not properly consider the impact on her amenity when granting planning permission for a first-floor balcony, and an officer gave her misleading information about the screening. She says the balcony does not comply with permitted development rules. She also says the Council wrongly applied its own policies and did not consider her human rights. As a result, she has suffered overlooking of and loss of privacy to her garden.

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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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. Mrs B complained to the Ombudsman in 2019 about the Council’s decision to grant planning permission for her neighbour’s extension in 2017. She did not therefore complain to the Ombudsman within 12 months of first becoming aware of the matter. However, I have exercised discretion to investigate her complaint because she understood from her initial contact with the Ombudsman in 2017 that she could not complain to the Ombudsman until the extension was built.
6. In considering Mrs B’s complaint, I have considered her written complaint and spoken with her. I have considered the planning papers and complaint correspondence and the Council’s planning policies. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

The planning system

Sustainable development

7. The purpose of the planning system is to contribute to the achievement of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs.

Planning permission

8. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.

Decision making and material considerations

9. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
10. Material 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. Government statements of planning policy are material considerations.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Permitted development

13. Parliament has given a blanket planning permission (“permitted development”) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.

What happened

14. Mrs B lives in a detached house in a private road characterised by large detached house in large plots.
15. In 2018, the Council received a planning application to extend the neighbouring house. The proposals included erecting a large porch, a second-storey rear extension and a single-storey rear extension with balcony and high screening.
16. The Council consulted on the application. It received objections from neighbours including Mrs B, who raised concerns about overlooking and loss of privacy from the proposed balcony.
17. The case officer visited the application site to consider the impact of the proposals. The case officer prepared a delegated report. This described the proposals, the character of the site and its planning history. It set out relevant policies, and summarised neighbours’ objections. The report identified the main planning issues to consider, which were the design and impact on a residential area of special character, the effect on neighbouring amenity, and on protected trees. It then considered each of these issues.
18. The report noted Mrs B’s concerns about overlooking from the balcony. However, it was felt that the 2-metre obscure-glazed privacy screen to the side of the balcony would limit overlooking of Mrs B’s upper floor rooms and the garden area next to her home. There would be views from the balcony towards Mrs B’s garden, but these were not felt to be dissimilar to those from the existing rear-facing windows, nor unusual for a suburban environment. As the balcony would be of modest size, it was considered unlikely to be used by large number of people, such as to cause noise. The report recommended granting planning permission.
19. The Head of Planning granted permission under delegated authority. The Council attached conditions which included that 2-metre high obscure-glazed screening be installed and kept in perpetuity.
20. Mrs B complained to the Council. It did not uphold her complaint because it considered that there was no fault in the way it had considered the application.

My assessment

Misleading information about the balcony screening

21. Mrs B says she called and asked to speak with the Head of Planning. She spoke with an officer and understood that the 2-metre privacy screening would apply to the rear of the balcony as well as to the side.
22. There may have been some misunderstanding, but the Council does not know whom Mrs B spoke with, so I cannot determine what was discussed. However, it would be unusual for a balcony to have a 2-metre obscure-glazed screen at the rear, because this would largely negate the purpose of a balcony. Besides, the plans show a full height screen at the side and a half height screen to the rear.

Failure to comply with permitted development rules

23. Mrs B says the Council should not have allowed the balcony because it is not permitted development. She also says it should not have allowed the extension because the building covers more than 50% of the total curtilage area.
24. Mrs B is correct in saying that the development does not comply with permitted development rules. However, if proposals are not permitted development, an applicant may apply for planning permission. The Council will then consider the application with regard to national and local planning policies, as was the case here. Permitted development rules are not relevant to the planning application.

Failure to comply with its planning policies and guidance

25. Mrs B considers that the balcony contravenes several sections of the Council’s Local Plan and Householder Extensions and Alterations Supplementary Planning Guidance (SPG):
• Policy Ho 9 – “Layout and design should not severely affect the amenities of adjoining properties.”
• Policy Ho 16 – “The privacy and outlook of adjoining properties' must be safeguarded and great care should be taken with regard to the siting of windows and balconies. Windows should not overlook adjoining properties.”
• Policy Ho 13 – “The intention is to protect existing housing from unacceptable loss of privacy, overlooking or obtrusive development.”
• SPG – “Using a flat roof as a balcony will not be permitted if it could result in a loss of privacy for your neighbours.”
26. She considers that the balcony is likely to be occupied for significant periods so the impact of any overlooking will be more pronounced than from rear windows.
27. Officers considered the impact on Mrs B’s home in some detail. They were aware that this was a balcony and not rear windows. However, they felt that, with the proposed screening, the degree of overlooking and loss of privacy was not sufficient to warrant refusing planning permission.
28. I appreciate that Mrs B strongly disagrees with that judgment, but the Council had to balance the right of her neighbours to develop their home against the impact on neighbouring amenity. I see not fault in the way the Council considered this matter, so I cannot question the merits of the Council’s decision.

Failure to consider her human rights

29. Mrs B complains that the Council did not consider her rights to privacy and family life under the Human Rights Act and as set out in case law such as Britton v the Secretary of State 1997.
30. The Articles of the European Convention on Human Rights (ECHR) relevant to planning include Article 6 (Right to a fair and public trial within a reasonable time), Article 8 (Right to respect for private and family life, home and correspondence), Article 14 (Prohibition of discrimination) and Article 1 of Protocol 1 (Right to peaceful enjoyment of possessions and protection of property).
31. The Human Rights Act 1998 incorporated provisions of the EHCR into UK law. It sets out the basic rights of every person together with the limitations placed on these rights in order to protect the rights of others and of the wider community.
32. The Britton case extends the application of Article 8 to the countryside, so does not appear to have any specific bearing on Mrs B’s complaint.
33. The decision-making process used in the planning system assesses the effects of proposed development on individuals and weighs them against the wider public interest in deciding whether development should be allowed to proceed.
34. In considering this planning application, the Council had regard to the Human Rights Act. It balanced Mrs B’s rights against the wider public interest of allowing sustainable development. I appreciate that Mrs B disagrees with the Council’s decision, but I see no fault in the process by which it reached that decision.

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Final decision

35. I have closed my investigation into Mrs B’s complaint because I have found no fault in the way the Council considered her neighbours’ application.

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Investigator's decision on behalf of the Ombudsman