Summary: Mrs D complains the Council failed to protect her amenity when considering a planning application for a neighbouring property. The Council failed to ensure screening was retained leaving Mrs D being overlooked. The Ombudsman has found evidence of fault by the Council. He has upheld the complaint and completed the investigation because the Council accepts his recommended actions including financial redress.

The complaint

1. The complainant (whom I refer to as Mrs D) says the Council failed to include a planning condition to retain a high hedge bordering her home when dealing with a neighbour’s planning application. Mrs D says that as a result the hedge was removed leaving no screening to her home and affecting her amenity.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 considered the information provided by Mrs D. I asked the Council questions and carefully considered its response.
5. I shared my draft decision with both parties.

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What I found

What happened

6. In November 2017 the Council received a planning application for a property neighbouring Mrs D to extend and convert a barn. This was attached to an already occupied dwelling. A Case Officer from the Planning Team carried out a site visit that month and noted a hedge and fencing on the boundary of the two properties. In December Mrs D and her husband objected to the application based on overlooking and loss of light. In January 2018 the Council assessed the case. The Case Officer noted Mrs D’s objections, she said the site was well screened with tall trees which prevented significant overlooking or loss of amenity. The Council granted planning permission. It did not include any conditions to retain the hedge.
7. On 7 January 2019 Mrs D wrote to the Council. The neighbour had removed the hedge to accommodate building works and scaffolding. She felt the Council should have realised this would happen. She also queried why the case did not go to the Planning Committee to decide the application The Council visited the site on 16 January and wrote to Mrs D on 25 February. It said the Chairman’s Panel had considered whether to refer the planning application to the Planning Committee to decide. It had followed procedures and correctly decided the case could be considered by the Case Officer. The Council also stated that it accepted “and saw for myself that the impact of the development has increased by the removal of the boundary hedge”. The block plan submitted with the original plans had indicated the hedge would be retained. The Council accepted the building works had “changed the outlook and character” of Mrs D’s property. The Council would ask the neighbour to consider obscure glazing for the ground floor windows facing Mrs D’s home.
8. On 25 February Mrs D told the Council a side window on the site had been changed to a door and would increase lack of privacy. The Council contacted the owner about this she stated she would replant the hedge and erect a high fence.
9. In May the Council told the owner she needed to submit a planning application because the side door was not in accordance with the approved plans.
10. In June the Council received a premature complaint referred to it by the Ombudsman. The Council wrote to Mrs D on 12 June confirming it had received her 7 January complaint but as it related to planning permission it had sought to resolve it without using the formal complaints process. The Council was awaiting a planning application to address the side door issue. Mrs D subsequently escalated her complaint. The Council met Mr and Mrs D in July and sent its response on 17 July. It said the usual practice during a planning application was for a Case Officer to assess from the site of the development. There was no statutory obligation to inspect from a neighbouring property. However, it said it would have been good customer service if a visit to Mrs D had occurred. It reiterated why the planning application did not go to the Planning Committee. In respect of a breach of planning control a Planning Enforcement Officer had visited the site and found the build in line with plans except for the side door. The Council had told the owner to submit an application for the side door. The Council had also informally discussed the hedge with the owner would was agreeable to replanting.
11. In August the Council received an application for variation of a condition following the grant of planning permission. On 1 October Mrs D objected and said the applicant had no intention of reinstating the hedge and the property was overlooking her home. An Officer carried out a site visit on 17 October. On 14 November the Chairman’s Panel decided the case could be considered by a Case Officer rather than the Planning Committee.
12. The Case Officer’s report notes the objection from Mrs D and the impact on her amenity caused by the side door. The report stated the current fence height was insufficient to prevent overlooking and needed to be 2.3 meters high. The removal of the hedge had exposed a first-floor bedroom window but the overlooking from this was not considered sufficient to justify refusal of the application. The Council granted planning permission on 6 December. A condition required the owner to erect a 2.3 metre fence for the neighbour’s amenity within three months.
13. As I understand it the fence has not yet been erected.

What should have happened

14. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted by the Council subject to conditions relating to the development and use of land.
15. When considering a planning application, the Council’s Case Officer should take account of material considerations. 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.
16. A Case Officer is not statutorily required to visit the site of neighbours who object to a planning application, they will usually only view the site of the development.
17. A decision on a planning application can be made by either a Case Officer, under delegated authority, or the Planning Committee. Where an application receives objections the Chairman’s Panel will consider the number and extent of the objections to see if they warrant referral to the Planning Committee. If an application has a small number of objections it will usually be decided by a Case Officer.
18. The Council can attach planning conditions when granting planning permission to prevent a development impacting on neighbour’s amenity.
19. Once planning permission is granted if the Council receives a complaint about a breach of planning control the case is considered by the Planning Enforcement Team. An Officer may visit the site to see if there is a breach of the planning permission. The Council will usually ask an applicant to submit a new planning application if there is a breach before any formal enforcement action is taken.

Was there fault by the Council

20. Mrs D says the Council failed to ensure the screening at her neighbour’s site was retained to protect her amenity. I consider there is fault by the Council. It was aware of the screening afforded by a high hedge when the planning application was considered in 2017 and 2018. The hedge was included in a block plan for the site. It is clear to me the Council assumed, incorrectly, the hedge would be retained during the development works. However, it failed to ensure this was done by including a condition in the planning permission. As a result, this failure to retain the hedge meant the owner was able to cut it down and not reinstate it. This has significantly impacted on Mrs D’s amenity as she is now overlooked. The Council has already accepted in February 2019 “the impact of the development has increased by the removal of the boundary hedge” and “changed the outlook and character” of Mrs D’s home. I see the Council has now included a condition in the most recent planning permission requiring a high fence on the boundary. This would help resolve matters but to date it is not in place.
21. Mrs D says the Case Officer should have visited her home during the planning application process. I do not find fault by the Council because it is not obliged to visit neighbouring properties. The Council acted in line with its procedures.
22. Mrs D feels the applications should have been considered by the Planning Committee. The evidence shows me the Council acted in line with its policies and procedures. The Chairman’s Panel considered both applications and was entitled to conclude a Case Officer could make a decision on them. There is no fault by the Council in this matter.
23. Mrs D refers to the build not being in line with the planning permission. She is correct and the Council found there had been a breach of planning control when it investigated in 2019. It followed the correct process by requiring the owner to submit a new planning application. I appreciate Mrs D may disagree with the decision taken by the Council in that it did not take formal enforcement action, but I am satisfied the Council acted in line with its polices.

Did the fault cause an injustice

24. The Council’s failure to include a planning condition to retain the hedge, or replace it with suitable alternative screening, has left Mrs D with a change to the outlook and character of her home. This has been ongoing since January 2019. The new conditions attached to the recent planning permission means there should be a high fence in place shortly in 2020. This would provide sufficient screening, albeit not the greenery Mrs D was used to and, in part, remedies the injustice.

Agreed action

25. The Council has agreed to my recommendations and will:
• Pay Mrs D £250 for time and trouble;
• Pay Mrs D for temporary loss of amenity at a rate of £75 per month from January 2019 to the start of December when new planning permission and a condition to protect her amenity were agreed. That totals £675;
• Updating her on the progress to have a high fence installed and explaining what is likely to happen next. It would be helpful if the Council visited Mrs D to discuss the case with her.
26. Those actions should be completed within four weeks of this investigating being completed.

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Final decision

27. I have upheld the complaint and completed the investigation.

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Investigator's decision on behalf of the Ombudsman