Summary: Mr X complains the Council has not enforced a condition in a planning application for a development near to his property. Mr X says this has caused him to lose privacy. From the evidence seen, the Ombudsman finds fault with how the planning condition was drafted. However, this did not cause any injustice to Mr X.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council has not enforced a condition attached to planning permission to obscure windows facing his property.

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What I have investigated

2. I have investigated how the Council carried out its enforcement investigation.
3. I have exercised discretion to investigate the decision to approve the planning application. I am satisfied Mr X thought the developer would condition the windows facing his garden. He only complained once the building work started and he realised the developer had not conditioned these windows. If he had known at the time planning permission was granted the windows facing his garden were not to be conditioned, I believe he would have raised a complaint sooner.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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

8. As part of this investigation:
• I considered the complaint made by Mr X and the Council’s responses.
• I considered the planning documents on the Councils website.
• I discussed the complaint with Mr X over the telephone.
• I made enquiries to the Council and considered the response provided.
• I sent a draft of this decision to Mr X and the Council and considered the comments I received in response.

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What I found

Planning law and guidance

9. The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations suggest otherwise.
10. Planning considerations include thinks like the impact on amenities, such as increased noise or decreased light and privacy.
11. Councils can take enforcement action if they find an individual has breached planning rules. However, councils should not take enforcement action just because there has been a breach of planning control. National Planning Policy Framework July 2018 says; “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”

What happened

12. In late 2017 the Council granted planning permission to develop houses to the back of Mr X’s property. The planning committee’s report said the first and second floor flank windows of the Plot [XXX] orientated in the direction of the rear garden at XXXXX and beyond will be obscure glazed and conditioned. All the other habitable windows of the new development are designed in mind to be adequately distanced away from opposite properties in [XXXX] to preserve their current levels of privacy.
13. A condition of the planning permission was that the first and second floor windows in the side flank elevation shown on drawing [XXXX] will be fitted with obscured glazing. Also any part of the window which is less than 1.7 metres above the floor of the rooms shall be non-opening and fixed shut in order to avoid overlooking in adjoining properties.
14. In March 2019 Mr X noticed the developer had not conditioned the windows facing his garden. He reported this to the Council saying the developer had not complied with the planning permission.
15. The Council contacted the developer who confirmed the correct windows were obscured. These were the windows to the rear side of the property.
16. The Council then carried out a site visit to look into Mr X’s complaint and decided the developer had glazed the correct windows. The Council wrote to Mr X to explain its findings.
17. Mr X disagreed with the Council’s position saying he believed the developer should condition the windows facing his property and not the windows to the rear of the property. He said the plans show the side elevation to be the windows overlooking his garden and the back of his property.
18. Shortly after the Council carried out a further site visit. It told Mr X the developer has obscured the correct windows on the rear side of the property. The Council said the windows facing Mr X’s property are Juliette windows and would not fall within the interpretation of the planning condition.
19. As Mr X remained dissatisfied he raised a formal complaint about the Council’s enforcement decision. The Council responded to Mr X setting out why it decided the windows in the planning condition related to the windows on the rear side of the property. The Council said:
• The planning condition refers to a drawing. There is a label on the drawing placed by the windows at the rear of the property which says, “windows to flank to be obscured”.
• The planning committee’s report refers to the windows facing the direction of another adjoining property, which are the windows the developer has obscured. These windows are close to the boundary of the adjoining property and it is normally common place for the developer to obscure them.
• The windows facing Mr X’s property are not orientated towards the garden of the other adjoining property the planning committee’s report refers to.
• The Council considers the distances from the development to Mr X’s property acceptable and needing obscuration is less common.
20. Mr X disagreed with the Council’s interpretation of the planning condition and the Council moved his complaint to stage two.
21. The Council provided Mr X with a stage two complaint response upholding its decision for the reasons it previously provided.

Analysis

22. Mr X disagrees with the Council’s decision that there has not been any breach of planning and the windows on the rear side of the relevant plot have been obscured.
23. I have not found fault in how the Council carried out its enforcement investigation. From the evidence available the Council contacted the developer and carried out two site visits. The Council decided the rear windows applied to the planning condition and not the windows facing Mr X’s garden and explained its reasoning for this to Mr X.
24. I have found fault in how the Council drafted the planning condition. The planning condition says, the first and second floor windows in the side flank elevation as shown on drawing [#] shall be fitted with obscured glazing. Any part of the windows that is less than 1.7 metres above the floor of the rooms in which they are installed shall be non-opening and fixed shut. Having considered the drawing this condition refers to I can understand why Mr X thought the windows facing his garden would be conditioned as the side elevation drawing shows the windows facing Mr X’s property.
25. However, the planning condition says the windows need to be fixed shut and non-opening. According to the plans, the windows facing Mr X’s garden are Juliette windows on the first floor, therefore would not be fixed shut. Also, the drawing the planning condition refers to has a small note by the rear side saying, “windows to be obscured”. The committee report says the first and second floor windows pointed in the direction of the garden of a different property to Mr X’s will be conditioned. I can therefore understand why the Council decided and interpreted the planning condition to mean windows to the rear side of the property are obscured.
26. It would have been helpful if the Council drafted the condition in a clearer way so it was obvious which windows the developer was supposed to condition. This would also have avoided Mr X bringing an enforcement complaint once he saw the developer building the property.
27. As I have found fault I must consider whether this has caused injustice to Mr X. I accept the planning condition could have been clearer. However, the committee report mentions overlooking and considers all other habitable windows have been designed to be adequately distanced away from the surrounding properties. This would include the windows facing Mr X’s garden. The report also mentions relevant planning policies from the Council’s local plan.
28. While the planning condition could have been drafted in a clearer way, I do not consider it would have had any impact on the planning permission being granted. Therefore, I do not consider this to have caused significant injustice to Mr X.

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Final decision

29. I have completed my investigation on the basis there was fault by the Council but this did not cause significant injustice to Mr X so no remedy is required.

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Investigator's decision on behalf of the Ombudsman