Middlesbrough Borough Council (19 010 587)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 17 Feb 2021

The Ombudsman's final decision:

Summary: The Council is at fault for failing to consider the potential use of a fire escape as a balcony when it granted planning permission for an external door to a property opposite Mrs X’s home. The Council should pay Mrs X £1679 to recognise the permanent loss of amenity and £250 to acknowledge their time and trouble pursuing the complaint

The complaint

  1. Mrs X complains the Council granted planning permission for her neighbour to convert a window into a door. She says the door allows access from her neighbour’s flat onto a fire escape which is now used as a balcony. Mrs X says this means their property is now overlooked.
  2. Mrs X says the door is obscurely glazed and next to a toilet. She says she can see the occupants of the flat using the toilet at all hours of the day and night and finds this upsetting. She says the Council required the door to be glazed to a minimum level 4 but level 3 glazing has been installed. She says the Council has told her this is sufficient.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have spoken to Mrs X about her complaint and considered the information she provided to the Ombudsman.
  2. I have also considered the Council’s response to my enquiries. This includes correspondence with Mrs X and her solicitor and details of site visits.
  3. I have considered the Ombudsman’s Guidance on Remedies which is available on our website.
  4. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Planning law

  1. All decisions on planning applications must be made in accordance with a council’s development plan unless material considerations indicate otherwise.
  2. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.
  3. Councils will notify local people when a planning application is received and give them an opportunity to comment. The volume or strength of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission. However, councils must consider any material planning considerations raised in comments from local people.
  4. Councils can impose conditions on planning permission to control the use and impact of a development. The law says this includes conditions which control the use of land outside the application site but which is in control of the applicant. (Town and Country Planning Act 1990, section 70(1)(a))

What happened

  1. In Autumn 2018 the Council granted planning permission for a flat opposite
    Mrs X’s home to change a window to a door. This gave access to a fire escape at the rear of the property.
  2. Mrs X objected to the planning application. She said the door would result in the fire escape being used as an outdoor space and would result in overlooking of her garden and kitchen. She also said it would mean she would find it difficult to sell her property.
  3. The Council produced an officer report which considered the impact of the door on Mrs X’s home. It said:

“The proposed door will be at the rear of the first floor flat and will provide access to the existing rear fire escape. The original plans for the flats show there was a door approved where the window currently exists to provide access to the rear fire escape. Furthermore, under current building regulations there is a requirement for access to this rear fire escape. The proposed door will face towards the rear elevation and rear garden area of [Mrs X’s property]. However, the proposed door is to be obscurely glazed which will be secured by a planning condition which will reduce the potential overlooking to the rear. In terms of the fire escape being utilised as an outdoor space this would fall within the fire regulations where access should be available at all times and is not a material planning consideration. Taking into consideration the building regulation requirements and the fact the access is to a fire escape and will be obscurely glazed the impact in terms of loss of privacy is not considered to be significant.”

  1. The Council imposed a condition on the planning permission. This said the obscure glazing on the door should be to a minimum level of 4 “in the interests of the privacy and amenity of the neighbouring properties”.
  2. On 5 December 2018 Mrs X e-mailed the Council to say the occupier of the flat had left the door open continually giving a clear view of the toilet in the bathroom. Mrs X also said she had overheard the occupiers talking about using the fire escape as a balcony.
  3. The Council replied on 27 December 2018 and said it could not stop the occupiers from leaving the door open but planning permission had not been given for the fire escape to be used as a balcony. The Council said:

“In this location, it is likely that an application for a balcony would not have been supported. The fire escape is different to that however and in this instance, whilst I understand your concerns, there is nothing from a planning perspective that we are able to do to address your concerns of whether a door is left open and how someone uses the fire escape.”

  1. On 13 February 2019 Mrs X’s solicitors wrote to the Council regarding its decision to grant planning permission. The solicitors said the fire escape was being used as a balcony. The solicitors said this meant Mrs X’s garden was now overlooked by anyone using the fire escape as a balcony.
  2. The Council replied to Mrs X’s solicitors on 25 February 2019. The Council said a site visit was carried out prior to planning permission being granted. The Council said it had considered Mrs X’s objections to the application. The Council said if the occupiers of the flat put up a structure or screening on the fire escape it may become a planning matter. The letter went on to say:

“The applicant could, prior to the planning approval, access this fire escape to the rear of their flat from the garden area. Although it is accepted that the resident could gain a greater ease of access as a result of the door, this access was already in situ as a fire escape route and not as a balcony.”

  1. On 9 March 2019 Mrs X complained to the Council. She said she was unhappy that the Council had granted planning permission for the door and said her the occupiers of the flat were using the fire escape as a balcony. She said the occupiers of the flat were also acting in an abusive manner towards them and the Council should have considered the possible use of the fire escape as a balcony before it granted planning permission.
  2. On 7 June 2019 Mrs X received a response to her complaint about the Council’s decision to grant planning permission. The Council said it was “not able to accept your complain as planning objections follow a separate process which you have already accessed”. The Council said Mrs X could complain to the Ombudsman.
  3. In September 2019 Ms X contacted the Council to say that the obscure glazing to the door was not the correct level.
  4. The Council visited the property and found that the glazing was obscured to level 3. However, the Council also found that only the top half of the door was glazed and that the lowed half of the door was PVC.
  5. The Council e-mailed Mrs X on 19 September and said that level 3 rather than level 4 glazing was acceptable and it would not be taking further action.
  6. On 23 September 2019 Mrs X complained to the Council again. She said the use of the fire escape as a balcony resulted in unacceptable overlooking of one of the bedrooms at the rear of her property. She said this meant they had to have the blinds to the bedroom permanently closed.
  7. The Council said Mrs X should complain to the Ombudsman if she was unhappy.

My findings

  1. The Council is at fault for failing to properly consider Mrs X’s comments about the possible use of the fire escape as a balcony. In its case officer report the Council said, “this would fall within the fire regulations where access should be available at all times and is not a material planning consideration”.
  2. However, fire safety regulations only consider whether the means of escape are blocked. The fire service could not take action because of overlooking and any impact on Mrs X’s property.
  3. In response to my enquiries the Council said it did consider the potential use of the fire escape as a balcony and decided not to impose a condition because:
    • The application was to allow for emergency access to the fire escape.
    • The fire escape is not “part of the planning unit” which is controlled by the applicant as others have access.
    • The applicant can get access to the fire escape from a rear garden in the flats and has not previously used the fire escape as a balcony.
  4. However, these reasons are not recorded in the Council’s consideration of the planning application. Therefore, I cannot give the same weight to them as I would have if they had been recorded at the time.
  5. The potential use of the fire escape as a balcony is a material planning consideration as Mrs X raised this in her comments and there would be a potential impact on Mrs X’s residential amenity as a result of overlooking. The Council acknowledged the potential impact on Mrs X’s property when it required the door to be obscurely glazed.
  6. The law and statutory planning guidance says the Council can impose conditions to control the development or use of land “under the control” of the applicant even if it is outside the site which is the subject of the application. This is not dependent on the existence of a freehold or leasehold interest. (Town and Country Planning Act 1990, section 70(1)(a))
  7. The section of fire escape outside the door only allows access to and from the flat. There is no reason for occupiers of other flats in the building to use this section of the fire escape.
  8. The Council’s case officer report says the “original plans for the flats show there was a door approved where the window currently exists to provide access to the rear fire escape”. However, this is not the case. The original plans show two windows which would open out onto the fire escape to allow for access in an emergency. This is clearly shown on the plans for the “proposed rear elevation”. Therefore, the Council is at fault for how it considered the planning history of the property. The Council says the plans show both a window and door but as set out above, this is clearly not the case when the plans are viewed as a whole.
  9. However, there is no fault in the Council’s decision to grant planning permission for the door itself. The Council has considered the impact of this on Mrs X’s amenity and required the door to be obscurely glazed.
  10. However, as set out above, the Council failed to properly consider the potential for the fire escape to be used as a balcony as a result of easier access to the area from the new door. For example, the Council may have been able to impose a condition saying the door could only be used for emergency access and to allow for maintenance, in order to protect Mrs X’s amenity. The Council may also have been able to impose a condition saying the fire escape should not be used as balcony, roof garden or similar amenity area without the grant of further specific permission from the Council.
  11. The Council says the fire escape does not have planning permission to be used as a balcony. However, it has not investigated Mrs X’s complaints that it is being used for that purpose. That is fault.
  12. The Council should have visited the site to check whether the fire escape was being used as a balcony. The Council did visit the property in September 2019 to check the obscure glazing, however there is no record that it checked for evidence of the fire escape being used as a balcony or that any advice was given about this to the occupants of the flat.
  13. The Council was also at fault for refusing to deal with Mrs X’s complaint through its complaints procedure. The Council’s complaints procedure says it cannot be used for complaints about a refusal of planning permission. This is because separate appeal rights exist. However, the Council’s policy does not exclude local people from complaining about decisions to grant planning permission. There are no separate appeal rights for local people who wish to complaint about the Council’s decision to grant planning permission. Therefore, Mrs X has been put to unnecessary time and trouble pursuing her complaint. home.
  14. The Council has acknowledged that the fire escape does not have planning permission to be used as a balcony. However, it says is would be unable to take enforcement action because it cannot now restrict the use of the balcony and has missed the opportunity to control the use of the new door.
  15. Mrs X has therefore suffered a permanent loss of amenity as a result of the potential loss of privacy arising from the uncontrolled use of the fire door. Mrs X has provided me with evidence that she paid £679 for planting to screen her downstairs rooms. However, there is still overlooking of an upstairs bedroom. Therefore, it is appropriate to recommend the Council pay a financial remedy to acknowledge the permanent loss of amenity. I have to take account of the fact the the fire escape might still be used intermittently even if a condition was in place controlling the door. I also have to consider that any use of the fire escape as a balcony would be limited due to seasonal variations in the weather.
  16. Mrs X instructed a solicitor to assist her in making a complaint. Whilst I appreciate that she had some difficulties making a complaint to the Council the Ombudsman service was available for her to access. Whilst Mrs C was entitled to seek advice from a solicitor there is no reason for me to recommend the Council covers these costs.

Agreed action

  1. Following my recommendations the Council has agreed to take the following action to remedy the injustice caused to Mrs X as a result of the injustice I have identified:
    • Write to Mrs X to apologise for failing to properly consider the potential use of the fire escape as a balcony and for failing to investigate her complaints.
    • Pay Mrs X £1000 to acknowledge the permanent loss of amenity to the bedroom window. The Council should also pay £679 to cover the cost of the planting to obscure her downstairs windows and £250 for the unnecessary time and trouble she was put to pursuing the complaint. This is a total of £1929.
  2. The Council should take this action within four weeks of my final decision.
  3. The Council should also take the following action to improve its services:
    • The Council should remind planning officers that the Council can impose conditions on land outside the application site which is controlled by the applicant where appropriate.
    • The Council should remind officers to investigate complaints from local people about decisions to grant planning permission and issues relating to planning enforcement where no appeal rights exist.
  4. The Council should provide the Ombudsman with evidence it has issued these reminders within two months of my final decision.

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Final decision

  1. I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman

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