Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s actions, in 2002-03, regarding a housing development and the impact of a garage and window on his amenity. Mr X’s complaint is outside the Ombudsman’s jurisdiction being made late. It is outside the permitted period of 12 months and there is no good reason to exercise discretion to investigate.

The complaint

1. Complaint 1: Mr X complains that in 2002 the Council mistakenly granted planning permission for a block of garages close to the rear boundary of his property. Mr X says the Council told him it had not noticed the change in the developer’s amended plan. The Council apologised, at the time, for the failure to notify Mr X of the amended plan, but he had lost the right to object. Mr X has recently had a dispute with the owner of two of the garages. He says if the Council had handled the application properly it would not have approved a garage so close to his boundary. He says it should pay him compensation.
2. Complaint 2: Mr X complains that the Council failed to ensure that a window, in the property to the rear of his home, has obscured glazing. The Council wrote to him in 2003 promising the window would be glazed. Mr X says he has suffered a loss of privacy because the neighbour’s window has clear glass and overlooks all his windows and most of his garden. Mr X wants the Council to ask the district valuer to assess the impact on the value of his home and pay compensation.

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The Ombudsman’s role and powers

3. 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)
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I have considered Mr X’s information, comments, and replies to my draft decision statement. I have discussed the complaint with him by telephone and considered his photographs showing the scene at the back of his property. The Council has supplied correspondence with Mr X between March and November 2019. The information held includes letters sent in 2002-03. I have considered the information on the Council’s website regarding the planning application and internet street scene views of the area.

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What I found

6. In September 2002, the Council’s planning committee approved an application for a large housing development. Mr X tells me he knew about the application and did not object because it included only one garage behind his property.
7. Mr X says the development, in terms of what he could see, was built in less than a year. He could see the building work being done. When it started he realised the developer was building 4 garages and at a different height and angle. He contacted the Council. Mr X says the Council’s chief planning officer visited him and shortly after wrote.
8. The Council’s letter to Mr X, dated 16 July 2003, says it had written to him about the garages the previous November. The Council confirmed that it missed a change in a revised plan increasing the number of garages to four. The Council apologised to Mr X for not notifying him of the amendment and reported it was part of the application approved by the planning committee. Both letters advised Mr X that had the change been considered it would have been difficult to justify a refusal.
9. The July 2003 letter to Mr X says the development to the rear: ‘is a 3 storey property and was always planned as such. The window to which you refer serves an en-suite and will be glazed using obscured glass. It is our belief that your property will not therefore be compromised as a result of the inclusion of this window.’ The officer says he had checked the measurements on the plans and the end gable wall (in which the window is placed), ‘is some 26 metres (85 feet) away from your property’.
10. There is a familiar planning standard, found in many local plans, of a 21 metre separation distance between facing principle habitable rooms/windows. The distance is greater if the development is higher and less if there are no windows or at an angle.
11. Mr X says there is: ‘a clear glass window at a high side elevation that overlooks all my windows’ and most of the garden. Mr X tells me the window is ‘70 feet or so’ from his home. Mr X tells me when the property was built he could see the window but he could not tell from the angle whether it had obscured glass. There was a white blind that looked as if the window was obscured. In 2003 Mr X had a small tree in his garden which over the years grew to partly screen the window. The tree was removed last year following the neighbour raising an issue about it.
12. The 2003 letter to Mr X was a complaint reply and it advises he can contact customer relations if he wants to go to stage 2 of the complaint procedure. In 2019 Mr X again raised the issues of the garages and window with the Council.
13. The Council’s recent replies to Mr X say the window serves a bathroom. The Council has not found a planning condition applicable to the window. The Council did not receive a complaint from Mr X about the window before 2019. Action could not be taken for breach of a planning condition, if one existed, because it is too late given the 10 year limit on enforcement action. The Council explained it cannot check every detail of a development and relies on surrounding properties to raise concerns. Mr X reply says, ‘I might mention that around that time I had cataract vision, which has since been corrected.’
14. Mr X’s photographs, taken from ground level, show part of a single storey garage close to the right side of his rear boundary (the website street plan sites it more centrally). Beyond the garage is the gable end of a tall house with a narrow window on the top floor. In one photograph there is clear glass visible and a half lowered blind. The window is aligned with Mr X’s flower bed to the right side of his garden.

Analysis

15. I will not investigate this complaint for the following reasons:
16. The first complaint about the garages is outside the Ombudsman’s jurisdiction because Mr X complains late. He is complaining outside the legally ‘permitted period’ of 12 months (see paragraph 3 above). Mr X knew about the change in the garage design and the Council’s admitted fault in 2002-03.
17. I will not exercise discretion to investigate the complaint because:
1. Mr X could have complained to this office much sooner. He dropped the matter in 2003 when he did not pursue a complaint with the Council (see paragraph 11).
2. The Council told Mr X in 2002 that it could not likely have refused the amendment to the garage plan. The Ombudsman, having regard to the photographs, cannot say the outcome would have been different or that the garage causes Mr X injustice. Investigation will not achieve the outcome Mr X wants.
18. The second complaint is also outside the Ombudsman’s jurisdiction because it is made outside the permitted period of 12 months. The Council promised Mr X, in its letter dated July 2003, that the neighbour’s window would be glazed. Mr X would have known that had not happened when the building work, which he could see, was completed. In saying that I have had regard to the photographs, Mr X’s comments on his eyesight and the growing tree which overtime partly obscured the situation behind his property.
19. I will not exercise discretion to investigate for the following reasons:
1. Mr X could have complained to the Ombudsman sooner.
2. Investigation is not likely to reveal more information regarding why there may not have been a planning condition requiring a glazed window. It will not change the position of the window. The Council cannot take enforcement action (see paragraph 12). There is no fault in it not acting since 2003 because Mr X did not complain to it about the window after it was completed.
3. The window does not cause Mr X injustice. It is a narrow window a considerable distance from his property. It is an en-suite bathroom, not a main habitable room, and will therefore be used less.

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Final decision

20. The Ombudsman will not investigate Mr X’s complaint about the Council’s actions, in 2002-03, regarding a housing development and the impact of a garage and window on his amenity. Mr X’s complaint is outside the Ombudsman’s jurisdiction being made late. There is no good reason to exercise discretion to investigate.

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Investigator's decision on behalf of the Ombudsman