Summary: Mrs X complained the Council failed to properly consider a planning application that affected her privacy. There was fault in the way the Council made its decision, but by the time we investigated the complaint, the Council had already found a satisfactory remedy for the impact on Mrs X. The Council has approved amended plans which should ensure a window facing Mrs X is obscured and fixed shut below a certain height.

The complaint

1. Mrs X complained the Council failed properly to consider a planning application for a housing development on land next to her home. Mrs X says that because of this, the Council failed to protect her privacy.

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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 read the complaint and discussed it with Mrs X. I read the Council’s response to an earlier complaint about the same development, and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave the Council and Mrs X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. 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.

What happened

11. Mrs X lives in a house that was once at the end of a cul-de-sac. The land beyond the end of the cul-de-sac was left undeveloped for many years, and when her house was designed, it included windows to take advantage of the light and open outlook. Mrs X has since added a conservatory facing towards the open land.
12. The Council received a planning application to build houses on the open land. The Council publicised the application and a case officer considered it.
13. The case officer wrote a report which included his recommendations. The report included:
• a description of the proposal and site;
• details of relevant policy and guidance;
• comments from the public and other consultees;
• an analysis of the main planning considerations, including the principle of development, the impact it would have on its environment, drainage risk and highways safety.
14. The case officer referred to Mrs X’s home, but said it would not be affected, because it would be set back from the boundary and there would be no windows overlooking her boundary. The application included several plans. The site plan showed where the houses were located on the site. It showed the shape of the roofs and indicated the house near her had a garage near her boundary. It had no windows marked on it.
15. The layout plan showed the garage on the other side of the new house. On this plan, the gable end was closer to her boundary and showed the rooms on each floor. There are small obscured windows to bathrooms facing towards Mrs X’s home.
16. When building work began, Mrs X realised something was wrong. The garage was built on the boundary and the gable facing her had a large clear glazed window looking over her garden and directly into habitable room windows of her home. The Council sent an enforcement officer to investigate.
17. The enforcement officer found that planning officers had agreed an application to make minor amendments. The plans for the amended application included layout plans marked to show the true orientation of the house nearest Mrs X’s home. The case officer’s report for the amended application did not refer to this change or consider whether the clear glazed window that overlooked Mrs X’s home was acceptable in planning terms.
18. Mrs X said she felt her privacy in her garden and in living rooms in her home, was severely affected and so she has complained to the Ombudsman.

My investigation

19. I asked the Council why it had approved two plans with different layouts. I suggested there was fault because:
• a member of the public or a planning decision-maker could be misled as to what was being proposed; and
• the case officer’s report said there would be no windows overlooking the boundary, but this was not true.
20. The Council accepted there was fault. It said:
• it would have expected its officer to notice the discrepancy in the plans, which showed inconsistent building orientations; and
• despite what is said in the case officer’s report, there is in fact a window overlooking the boundaries of the houses nearest the site, including Mrs X’s home.
21. The Council suggested the best way to resolve the problem would be for it to attempt to negotiate changes to the window and to secure them by planning condition. It said it would want the bedroom window facing the complainants’ home to be obscured and fixed shut, ‘apart from a top hung fanlight’.
22. The Council had already begun this process to remedy the complaint, before Mrs X first came to us. The developer had applied to make the changes the Council wanted, and the amended plans have now been approved subject to conditions. The window facing Mrs X must now be obscurely glazed and fixed shut above 1.7 metres from floor level. A planning condition requires the changes should be carried out prior to occupation of the new house, or within six months from the date the amended plans were approved, whichever date comes first.
23. The Council has already apologised to Mrs X. It also offered a small time and trouble payment to her, which she accepted.

My findings

24. The Council approved plans that showed inconsistent layouts, and this caused potential for those considering the plans, the public and the decision-maker, to be misled by what was proposed and later approved. This is fault.
25. The case officer’s report says there are no windows overlooking Mrs X’s boundary, but this is not true. This is fault.
26. The case officer’s report did not identify that there were two inconsistent plans in the application. This is fault.
27. Where we find fault, we must determine whether it causes an injustice to the complainants. If the application had been properly considered, I think it is likely the Council would have sought to control the bedroom window overlooking Mrs X’s boundary to protect her privacy.
28. During my investigation, the Council agreed a satisfactory remedy for the injustice caused to Mrs X. It spoke to the developer, who agreed to make changes to the window facing Mrs X and submit a planning application for the amendments. The Council has now approved the application and can require the changes are carried out. I am satisfied with the Council’s actions.

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Final decision

29. I completed my investigation because the Council accepted my findings and agreed to the remedy I proposed.

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Investigator's decision on behalf of the Ombudsman