Summary: Mr X complained the Council did not properly consider the impact a new development would have on his amenity before approving a planning application. Mr X says the new development affects his privacy. There was some fault in the way the Council made its planning decision. This is because the case officer’s report did not specifically refer to the impact on Mr X’s home or the affect differences in land levels would have. However, we could not show the outcome would have been any different.

The complaint

1. Mr X complained the Council did not properly consider the impact a new development would have on his amenity before approving a planning application. He says this has led to overlooking and a loss of privacy and the matter has caused him adverse health issues and distress.
2. The Council acknowledges the original case officer’s report should have specifically referred to Mr X’s property, the impact caused by different land levels and whether boundary screening should be required. The Council has apologised to Mr X for these omissions, but Mr X wants the Council to take to more action to protect his amenity and to review its procedures.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. I read Mr X’s complaint and discussed it with him.
7. I considered information sent to me by the Council, including its responses to the complaint and documents from its planning files, including case officer reports, plans and a surveyor’s report.
8. I gave the Council and Mr X an opportunity to comment on an earlier draft of this decision and took account of the comments we received.

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What I found

Planning law and guidance

9. Planning permission is required for the development of land. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, but the Council should take account of any material planning reasons that are brought to its attention.
12. It is for the decision-maker to decide the weight to be given to any material consideration in determining a planning application.
13. The Council’s local plan includes policies to preserve the visual amenity of the area and protect neighbouring residential amenities.
14. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
15. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
16. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
17. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
18. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
19. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
20. If a proposed development is much higher or is built on higher ground, councils sometimes require greater separation distances.

What happened

21. The Council approved a planning application for a detached two-storey dwelling behind Mr X’s home. The planning approval included conditions to protect neighbouring residential amenity, in accordance with the local plan.
22. During the building work, Mr X had concerns about the development. He complained the house was higher than was approved in plan, and the upper windows overlooked his property, affecting his privacy.
23. The Council’s planning enforcement team investigated Mr X’s concerns. It found the ridge level of the building and the ground level were slightly higher than was shown on approved plans but considered the difference so minor that no further enforcement action was necessary.
24. The developer submitted a second application to vary the original plans, which included the slightly raised level. This time the case officer’s report did refer to the impact on Mr X’s property and other houses below the development site. The Council approved this application and issued a new approval, which included the plans and conditions.
25. Mr X registered a formal complaint. He said the position and height of the property allowed overlooking which caused him a loss of privacy.
26. The Council investigated his complaint under the first stage its complaints procedure. In its response, it said it had considered the impact on neighbouring properties as part of the original planning application process and had decided the development was acceptable. It said the subsequent enforcement investigation had showed the development was sited in accordance with the approved plans and the discrepancies, when considering the scheme in the round, were too minor to justify enforcement action. It concluded no unauthorised development had occurred.
27. Mr X was dissatisfied with this response. He said the original planning case officer’s report showed the Council had only considered the impact on adjacent properties but not those below it. His property was on lower ground and the upper rear window of the new house had uninterrupted views into his property. He asked the Council to escalate his complaint to the second stage of the complaints procedure.
28. The Council visited Mr X’s property. It concluded that, although the original case officer’s report to planning committee did consider residential amenity generally and did take into account the difference in ground level, it should have specifically referred to the impact on Mr X’s residential amenity and others living on his road.
29. The Council said the upstairs rear window of the new house was at an angle to Mr X’s property and the property’s rear elevation was a significant distance away from him. However, it said the case officer’s report should have addressed potential overlooking more specifically and considered whether boundary screening was necessary to protect Mr X’s amenity. It apologised to Mr X for this.
30. Mr X remained dissatisfied and brought his complaint to us.

My investigation

31. The Council accepted the case officer’s report should have given more explicit consideration to the impact of the development on Mr X’s amenity, and it had apologised to Mr X for this omission. However, it said that, even if it had done this, it would still have recommended approval of the application, due to the significant distance between the two properties.
32. The Council said since Mr X’s complaint, as part of its approval of an application to vary one of the planning conditions, the Council had required the applicant to submit landscaping plans including tree screening at Mr X’s boundary. The applicant did this, and the Council has since approved the submitted plans.
33. The Council says it has also reminded its officers to ensure they consider all key aspects of a development proposal and specifically address the relevant issues in their planning reports.

My findings

34. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
35. The case officer’s report on the original application does mention the drop in land level towards Mr X’s property, but it does not set out its consideration of the impact the development will have on his amenity. I agree with the Council when it says this report should have explicitly referred to the impact the development in the context of differing levels would have on Mr X’s amenity, and whether any boundary screening would be needed to protect it. This omission is fault.
36. In its response to my enquiries the Council said that even if there had been no fault, it would still have approved the application. On the balance of probabilities, I consider it is more likely than not that this would have been the case. This is because the distance between the new and existing properties is almost twice the 21-metre distance between directly facing habitable room windows that is normally required. The properties are not directly facing, and though the new house is higher, I cannot conclude that, but for the fault, the authority would have required a further set-back. For these reasons, I cannot say the outcome would have been different.
37. The Council has apologised to Mr X for not specifically setting out its consideration of his amenity in the report. This is an appropriate remedy for the fault I have found.
38. When Mr X complained the development was not being built in accordance with the approved plans, the Council’s enforcement officers visited the site, found a breach of planning control, but concluded the difference was too small to justify action. The Council followed the decision-making process we would expect for a planning enforcement decision, so I find no fault in how the Council’s enforcement decision was made.
39. Finally, I should also note that the second planning approval, which considered and approved revised plans, supersedes the original application. The case officer report for that decision shows that Mr X and other properties below the site were referred to and considered before that decision was made.

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Final decision

40. I have completed my investigation. There was some fault in the way the Council made its original planning decision, but it made no difference to the outcome. The apology the Council has already made is a satisfactory remedy in these circumstances.

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Investigator's decision on behalf of the Ombudsman