Summary: The planning officer failed to condition a planning permission to require screens on a Juliet balcony to prevent the use of a flat roof as a roof terrace. This was fault. This caused injustice to the owner of the neighbouring property as he will never know if the second planning application might have been refused if the fault had not occurred. A payment of £1000 towards his uncertainty and time and trouble remedies the injustice.

The complaint

1. The complainant, who I shall call Mr B, complains the Council failed to impose a condition on a planning permission to restrict the use of his neighbour’s rooftop terrace. As a result, when his neighbour applied to vary the planning permission the Council felt it had to approve the application despite acknowledging it would have an unacceptable impact on his amenity. Mr B says the development impacts on his privacy.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I read the papers put in by Mr B and discussed the complaint with him.
5. I considered the Council’s comments about the complaint and any supporting documents it provided.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

7. Mr B lives in a terraced house. In 2018, the Council granted planning permission for his neighbour to extend the property to the rear.
8. In 2019 new owners put in a second planning application for a larger extension to the rear, which the Council approved.
9. The Council has accepted there was fault in the way officers dealt with the first application. It says the officer’s failure to place a planning condition on the first planning application, to require screens on a Juliet balcony to prevent the use of a flat roof as a roof terrace, was fault.
10. In the report to planning Committee, the planning officer said ‘if consideration of the second planning application was taken in isolation, officers are of the view that is would be unacceptable because of the harm from overlooking and consequent loss of amenity and privacy caused by the depth of the rear extension, even allowing for the recessed element to the indicated dining room area’.
11. In the Committee report, the planning officer said ‘the applicant or any future occupier could use the flat roofed area approved under the first planning consent as a terrace. Because of this and because works have started to carry out that permission, there is a fallback position which would allow the entire flat roofed area to be used as a terrace. It would seem probable that this would be unacceptable harm to residential amenity’.
12. Officers decided, on balance, the second scheme with a restricted and controlled permission, was a material improvement in privacy and amenity terms compared to the first permission. The restrictions would prevent the use of a smaller flat roof area as a roof terrace, prevent windows, doors or openings being inserted into the rear extension or glazed gable end.
13. The planning Committee considered the second planning application. Mr B spoke as an objector at the meeting and Committee members visited the site. Members approved the application.
14. Mr B made an official complaint. The Council accepted it was at fault. It asked a senior planning officer to visit the site to assess the impact on him. The Council said the main difference between the first and second permission was that the part of the roof extension containing a full height window extended further to the rear and so oblique views across Mr B’s patio area were no longer blocked by his roof. The Council said the overlooking from the full height window was greater than would have occurred in the first permission. But, due to the recessing of the window and its siting views into and out of the room would only be from the rear corner. The Council said that Mr B’s patio area did not enjoy any privacy before the development took place, from many windows and several small balconies. The senior planning officer, after visiting the partially built extension, believed the development did not have an unacceptable impact on the amenity of Mr B’s property, compared to the level of privacy generally in the area. So, the Council did not consider that any financial compensation resulting from adverse impact on Mrs B’s amenity was due. The Council did offer Mr B a compensatory payment of £250 towards his time and upset. This was because ‘the Council has made mistakes, failing to apply relevant planning conditions to the first permission and in judging the potential harm from the second consent to be greater than it actually is’.
15. The Council has already accepted fault. What is in dispute, is the injustice caused to Mr B and the remedy proposed by the Council. Mr B complains the remedy is not enough, as he has lost privacy in areas of his garden.
16. I have looked at all the information. Mr B has been put to time and trouble in pursuing his complaint, as direct result of the Council’s fault. He will never know if the result would have been different if the fault had not have occurred. So, I believe that a remedy for his uncertainty and time and trouble, above the £250 offered by the Council is reasonable. I consider that a payment of £1000 would remedy the injustice caused to Mr B.

Agreed action

17. The Council pays Mr B of £1000 within one month of the date of the decision on this complaint.

Back to top

Final decision

18. I have completed my investigation of this complaint. This complaint is upheld and I consider the remedy above is a satisfactory remedy to the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman