The Ombudsman's final decision:
Summary: The Council was aware of all relevant facts, including the impact on Mr X’s property, when it granted a neighbour’s planning application. There is no evidence of fault in the way the decision was made.
- Mr X complains the Council failed to properly consider a planning application that affected his family’s privacy. A neighbour has built a two storey side and rear extension. Mr X says the extension is overbearing and affects privacy to his main living room and child’s bedroom and devalued his house.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered the planning documents and complaint documents, including the plan and case officer’s report. I have visited the site and viewed photographs taken by both parties.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
- Planning considerations include things like:
- access to the highway;
- protection of ecological and heritage assets; and
- the impact on neighbouring amenity.
- views over another’s land;
- the impact of development on property value; and
- private rights and interests in land.
Supplementary planning guidance
- Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
- 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.
- Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
- Although guidance can set different limits, councils normally 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.
Case officer reports
- The purpose of the case officer's report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
- However, the courts have made it clear that:
- Case officer reports do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
- Case officer reports do not need to include every possible planning consideration, but just the principle controversial issues.
Chronology of complaint
- Mr X lives in what appears to be a relatively new housing estate with similar houses. The houses are arranged in a sporadic formation. The planning application relates to the house (which I shall call ‘A’) which is at the rear of Mr X’s home and diagonally to the right. Because of the way the houses are arranged, Mr X’s home (‘B’) is set back from his next-door neighbour and so closer to the extension than the house of his neighbour (‘C’) whose rooms directly face the extension. The house to the rear of Mr X’s garden (‘D’) adjoins A.
- Mr X’s house is close to the boundary fence with A and C. His garden is an L shape with the long part of the L extending towards D along the side elevation of A. The short part or the L is towards the boundary with C, with the inner corner of the L being the point closest to A.
- Mr X’s rear extension has two upper floor windows at first floor level and on the lower floor he has large patio doors on the side closest to A. Mr X’s complaint relates to the patio doors which serve his living room and the first floor window above this which serves his daughter’s bedroom.
- Mr X objected to the extension when the planning application was made. He said ‘we already feel we are relatively close to this property and a significant two storey extension on the side and rear of this property will bring this property in close enough proximity to ours that we will be able to see into each others windows on both floors. The plans propose 2nd floor windows on the side of the property almost up to our boundary and directly overlooking our rear garden. This will impact upon our privacy in our garden.
- There is evidence from the Council’s file the case officer visited the site and took several photographs including looking towards Mr X’s home.
- The case officer report considered residential amenity referencing properties B, C and D. The officer noted the side extension posed no harm in overshadowing or overdominance. The officer stated ‘there are no new windows proposed in the side elevation which would eliminate any overlooking to B and D. The windows proposed in the rear elevation have a sufficient amount of distance to omit any overlooking to the neighbour at C. A condition will be placed on the approval that restricts any insertion of windows to the side elevation at first floor to protect the amenity of the neighbours’.
- Planning approval was given on this basis.
- Mr X complained quoting supplementary planning guidance that there be a minimum distance of 22 metres and a field of vision to a 90 degree arc centred on the centre of a window.
- The Council said the application had been correctly assessed against the Householder Design Guide (HDG) which sets out suggested minimum separation distances. The Council had taken measurements following receipt of Mr X’s complaint and found there was a separation distance of 10 metres between the rear elevation of A’s existing conservatory and Mr X’s property which sits to the north-west. The application involved the demolition of A’s existing 3.3 m deep conservatory and erection of an extension. The side elevation was 1.124m from the side boundary (with D / Mr X’s rear garden).
- The Council acknowledged that the rear elevation of A would be brought closer to Mr X’s home but said there were no windows to the side elevation and the windows on the extension were secondary windows. ‘The HDG guidance states that a secondary window to the boundary should be 7.5m. The distance between the new first floor windows and the rear boundary is approximately 9m which exceeds the minimum distance for secondary windows to a boundary as set out in the HDG’.
- The Council said a separation distance of 21m only applied where two main windows (living /dining rooms) directly face each other. A distance of 10.5m should be maintained to the boundary, which added together (to each boundary) makes a separation distance of 21m. However, this was only guidance and not a ‘hard and fast rule’.
- The Council says A’s ground floor window serves a kitchen and so is a secondary window and there is a boundary hedge which provides privacy. The first floor windows of A serves bedrooms, and are at an ‘oblique angle’ to Mr X’s first floor bedroom window (all secondary windows). The Council says the distance is therefore acceptable.
- The Council explained the field of vision arc applied to light, not privacy.
Household Design Guide
- The Council’s HDG says windows which directly overlook neighbouring gardens or cause conflict with existing windows will not be permitted. Upper floor side windows which overlook will only be permitted if obscure glazed. The HDG provides a table which gives ‘an indication’ of minimum distances.
Ground floor main (living / dining rooms) to
Secondary (bedrooms, ground floor kitchens when overlooking) to
Tertiary (windows to kitchens and utility rooms excluding dining areas) to
Side to (windows to bathrooms, staircases and landings and blank walls)
- The HDG says these distances are a guide, not a hard and fast rule and regarded as the normal minimum for flat sites. Where neighbouring windows face each other across a neighbouring boundary the minimum distance of each window to the boundary should be added together. So a ground floor main window to main window should be 21m and a main to secondary window 18m (10.5m+7.5m).
- My role is not to make a planning judgement on whether the development is acceptable. My role is to make sure the Council had all the relevant information when it made its decision, that is, the decision was made without fault.
- The Council is correct to say the rule of light would not apply here, this applies to adjoining or adjacent buildings not ones which are diagonally opposite. The key issue is the separation distances.
- Mr X was notified of the application. The plan of the site shows the relationship of the application property and distance to its neighbours and the case officer also visited the site. The case officer took photographs looking from the host property towards Mr X’s home and referred to Mr X’s property in the report. The case officer therefore knew the location of Mr X’s property and its proximity to the corner boundary shared with A.
- The separation distances are less than in the guidance but the HDG is only a guideline and applies to windows which directly face each other. Mr X’s windows are at an angle, described by the Council as north west (or approximately 45 degrees), not directly facing. Where properties are at an angle, windows can be proportionally closer to each other. The case officer concluded there would not be unacceptable overlooking at this angle. The case officer clearly considered overlooking of neighbours as a condition was included about windows on the side elevation of the extension.
- While I acknowledge that Mr X would have been more reassured his objection had been considered if separation distances to his windows had been mentioned in the report, the purpose of the report is for the applicant and Council, not neighbours and the courts have found case office reports do not have to include every planning consideration.
- I understand that Mr C disagrees with the decision on the planning application, but the Council was aware of all the relevant facts when it made the decision. I have found no evidence of fault by the Council and therefore cannot intervene in the decision reached. (Local Government Act 1974, section 34(3), as amended)
- I have completed my investigation as I have found no evidence of fault by the Council. This complaint is not upheld.
Investigator's decision on behalf of the Ombudsman