Summary: Mr and Mrs X complain about the Council’s approval of a planning application for a housing development next to their property. The Ombudsman has found no evidence of fault in the way the Council considered the matter.

The complaint

1. The complainants whom I shall refer to as Mr and Mrs X complain about the way the Council dealt with a planning application for housing development on land next to their property. Mr and Mrs X say it will have a detrimental impact onto their amenity and privacy.

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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)

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How I considered this complaint

4. I have read the papers submitted by Mr and Mrs X and discussed the complaint wit Mrs X. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Mr and Mrs X and the Council and considered the comments received.

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What I found

5. The Council received a planning application to build houses on land next to Mr and Mrs X’s property. The Council consulted about the application including Mr and Mrs X. The developer amended the proposal and the Council consulted again. It invited those who made comments to attend the Planning Committee (Committee) when it considered the application.
6. The Committee visited the site before the Committee meeting. The Committee considered a planning officer report on the proposal. The report explained the Council owned the application site and part of a joint venture company set up with a property company to develop the site.
7. The report described the site, proposal and planning policy considerations. It outlined the consultation carried out and the representations received including those from Mr and Mrs X. Mr and Mrs X’s objections to the proposal included making the cul-de-sac they lived on into a through road to the development. They raised concerns about the impact on highway safety by construction vehicles using the road and the impact of a new property next to their home. Mr and Mrs X said the new property was close to their boundary, would shadow and overlook their garden and house. Mr and Mrs X raised concerns about a first-floor balcony on the new property.
8. The report outlined the planning considerations of the application including the impact on neighbours. The report considered the proposal met the Council’s Successful Places design guide. It noted the relationship between Mr and Mrs X’s property and a new house and considered the siting of the house acceptable. The report said the application proposed a first-floor balcony of the new build and noted comments about the potential views into Mr and Mrs X’s property. The report confirmed the balcony was at the front of the new house and any side views would be across the front of Mr and Mrs X’s property. The report said officers considered placing a condition needing the balcony to have a screen would not result in any unacceptable loss of privacy or amenity to Mr and Mrs X.
9. The report referred to ‘opening up’ the road Mr and Mrs X lived on. The report considered the traffic noise levels were not enough to warrant refusal. It noted concerns about construction vehicles using the road for access. The report said the highway authority had not raised concerns about this, but it would be covered by a construction method statement recommended as a planning condition.
10. The report considered the proposed development would adequately respect the privacy and amenity of neighbouring houses and conformed to the requirements of the Successful Places design guide. The report proposed approving the application.
11. The Committee considered and approved the application subject to planning conditions. The conditions included one needing details of a balcony screen for the new build house next to Mr and Mrs X’s property. It also included a condition requiring preventing the use of the road for residential vehicular traffic until the new houses were first occupied.
12. Mr and Mrs X complained to the Council about the decision to approve the application. They complained;
• The Council failed to take account of the impact the new build would have on to their property and amenity especially because of the balcony.
• The Council failed to consider their suggestions to move the new build property away from their house because of the unique circumstances of their property having a side garden area.
• The Council failed to comply with the Successful Places design guide which needed spaces between rear gardens to be no closer than 10.5 metres when overlooked by first floor windows. Mr and Mrs X say a proposed first floor window at the new property will overlook their side garden and the side door of their kitchen when opened.
• The Council failed to consider the concerns about road safety.
• The Decision notice for the approval contradicted the planning condition agreed at the Committee meeting. This said the road would not be used for construction traffic, delivery or removal from site traffic so would be blocked off. And the road would only be opened once the whole site is completed. Mr and Mrs X says the condition to open the road up when the properties are first occupied does not comply with what was agreed.
• Mr and Mrs X raised concerns about the Council owning the land and involvement in a joint venture to develop the site.

The Council’s response to the complaint

13. The Council says Mr and Mrs X’s property is at the head of the road they live on. It considers the house one of several with a uniform street frontage and private rear gardens characteristic of most houses on the site and across the district. The Committee planning report noted the road would continue that relationship beyond Mr and Mrs X’s property and specifically addressed the issue of the impact of the development onto their garden. The Council considered the relationship to the rear garden of the new property to Mr and Mrs X’s property was in line with the similar existing properties and so acceptable.
14. The Council says the issue of the proposed side window of the new build to Mr and Mrs X’s garden was considered. The Council considers there is no recognisable side garden at Mr and Mrs X’s property. And the angle from the side window towards the rear of their property has a limited impact onto the rear garden. The side window is a secondary window to a bedroom and limited to 30 cm in size which reduces the impact even more.
15. The Council says Mr and Mrs X have a side door to their kitchen. The Successful Places design guide refers to amenity and looks at protecting amenity where it impacts on windows not doors. This relates to privacy towards main windows to habitable rooms. The Council considers in this case Mr and Mrs X’s kitchen is a habitable room, their side door is a door and so not protected under the design guide. The Council says the door is a secondary means of lighting the room. So, would not be protected like a primary window.
16. The Council says the planning report refers to the proposed first floor balcony at the new property towards Mr and Mrs X’s house. The proposed balcony is to the front of the new build and overlook the street and front and therefore public area of Mr and Mrs X’s house. The Council required a condition to screen the balcony to address Mr and Mrs X’s perception of overlooking. It says the report discusses the impact of the development on the enjoyment of Mr and Mrs X’s garden. And the potential impact on their amenity from the proposed balcony at the front and side of the new property.
17. The Council disagrees with Mr and Mrs X’s comments about the 10.5 metre separation distance between rear gardens applying to their side garden. The Council says the successful places design guide refer to distance when “first floor windows directly face a rear boundary”. The Council says this is not the relationship between Mr and Mrs X’s property and the new build as their property is to the side and not a rear boundary.
18. The Council considers it has acted properly when considering the planning application. But because of Mr and Mrs X’s continuing concerns it has sought voluntary amendments to the new property. It asked the developer to remove the secondary side window to the first-floor bedroom. The developer has agreed to this and decided to remove the proposed balcony. The Council considers this will address Mr and Mrs X’s concerns about privacy although the new property will be subject to changes as a result. The amendments will be subject to a formal non-material minor amendment. The Council says it has sought the changes as a gesture of goodwill and considers the approved scheme remains acceptable in planning terms.
19. In response to concerns raised about the Council’s involvement in the planning development the Council commissioned an independent review into the sale of the land and the joint venture. The review also considered the procedure leading to the grant of planning permission. This included considering the planning condition about the allowing the road Mr and Mrs X live on to be opened on first occupation of the new houses.
20. The independent review found the Council acted lawfully in the sale of the land and the joint venture. The review concluded a need for the Planning Manager to draw up a condition that met the Committee resolution and the tests needed by national planning policy. The review noted the Committee delegated the final wording of the condition to the Planning Manager to complete. So, this allowed alteration of the final specific wording to ensure the Council met its legal responsibilities. The Chair, Vice Chair of the Committee and the proposer of the condition agreed to the Planning Manager’s wording.
21. The Council considers the condition as imposed will restrict the use of the road until the first occupation of any completed house. In addition, the use of the road by construction traffic will be controlled by the separate condition. So, the Council considers this meets in full the result sought by the Planning Committee.

My assessment

22. The documents provided by the Council show it told Mr and Mrs X about the planning application and they could send in objections to the proposal. The planning report considered by the Committee included the comments from Mr and Mrs X about their concerns. The report contained an assessment of the proposal against the Council’s planning policies. The Committee also carried out a visit to the proposed site.
23. Mr and Mrs X do not agree with the Council’s decision to approve the application. But I have seen nothing in the evidence I have considered to show the Council was not aware of all the relevant facts, including Mr and Mrs X’s objections when it made its decision. So, there are no grounds for the Ombudsman to criticise the merits of the Council’s decision to approve the application and no evidence of administrative fault.
24. In any event the Council has sought amendments to the new build next to Mr and Mrs X’s property. The developer has agreed to remove the side window and the balcony which addresses their concerns about loss of privacy. Because of this I do not consider any further investigation would achieve anything more for Mr and Mrs X.
25. The Council carried out an independent review of its involvement in the site and joint venture. This looked at the concerns raised over the planning condition about the road and when it should be opened to traffic. The review concluded the Council acted lawfully over its involvement with the site. It also found the Planning Manager had authority to amend the wording of the condition to ensure it met the Council’s legal responsibilities regarding planning conditions.
26. I consider the independent review has thoroughly looked the issues raised and so I do not consider there are any grounds to warrant the Ombudsman investigating further the matters covered by the independent review. The conditions about opening of the road and preventing it use by construction traffic accord with the outcome sought by the Planning Committee.

Final decision

27. I am completing my investigation. I have found no evidence of fault by the Council in the way it considered a planning application for housing development next to Mr and Mrs X’s property. The decision to grant planning permission is not one the Ombudsman can question even though Mr and Mrs X disagree with it.

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Investigator's decision on behalf of the Ombudsman