The Ombudsman's final decision:
Summary: The Council was not at fault for the way it considered a planning application to remove obscured glazing from a window which faces Mr X’s property.
- The complainant, whom I refer to as Mr X, complains the Council approved a planning application to remove obscured glazing from a window facing his property.
- Mr X says he did not receive notification of the application and his property is overlooked from his neighbour’s development. He has had to purchase screening to reduce the overlooking.
The Ombudsman’s role and powers
- 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)
- 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
- As part of this investigation I considered the complaint made by Mr X and the Council’s responses. I also considered the information provided by both Mr X and the Council. I sent a draft of this decision to Mr X and the Council.
What I found
- In August 2017 Mr X’s neighbour submitted a planning application to the Council to build a two storey dwelling. Mr X objected raising concerns about overlooking from the development into his property. The Council granted planning permission in October 2017. The planning permission contained a condition saying the first storey window on the side of the building facing Mr X’s property must be obscured.
- In March 2018 Mr X’s neighbour applied to vary the planning permission. This included changing the design of the building by moving it two metres further away from Mr X’s property. Mr X’s neighbour also applied to remove the obscured glazing from the window facing Mr X’s property and change its design to an oriel style bay window.
- Mr X said he was not notified about this application. The Council has provided evidence it generated a letter which was sent out to neighbours near the development and has provided a copy of the letter addressed to Mr X.
- The Council approved the application to vary the planning permission in May 2018. The planning officer’s report considered that the new design of the window is orientated away from Mr X’s garden space which reduces views into his property. In addition, the house being moved a further two meters away from Mr X’s property also reduces the impact on his amenity.
- In early 2019 Mr X’s neighbour completed the first floor of the development. Mr X said the window overlooks his property, however his neighbour agreed to keep the window obscured glazed. Mr X said he raised this issue with the Council at the time but was not responded to.
- Mr X complained to the Council in November 2019 about its decision to remove the planning condition and allow his neighbour to use clear glazing in the window facing his property. Mr X said the window overlooks his property.
- The Council responded to Mr X’s complaint at stage one of its complaints process in December 2019. The Council said on review of the case and after visiting the property, the removal of this planning condition has led to some overlooking into Mr X’s property. The Council said the planning officer decided the planning application in line with Council procedure and process. However the Council apologised for the distress caused as it does appear Mr X’s property is now overlooked by the window.
- Mr X remained dissatisfied and asked the Council to consider his complaint at stage two of its complaints process.
- The Council provided Mr X with its stage two response in February 2020. The Council explained the case officer took the view that the introduction of an oriel style window which changed the angle of the window, together with the building being moved two metres further away would reduce the views into Mr X’s property. The Council said planning permission had been legitimately granted.
- The Council also said after visiting Mr X‘s property it did recognise there is overlooking and reiterated its apology from the stage one response for the distress caused. The Council also offered Mr X £500 for the distress and time and effort spent pursuing the complaint.
- In February and March 2020 Mr X paid for works to put up screening to reduce the overlooking into his property. He continued to pursue the matter with the Council, requesting they pay for the screening.
- The Council responded to Mr X in May 2020. The Council explained the money offered to Mr X was to recognise the time, trouble and distress spent pursuing this matter. The Council said it did not make clear to Mr X early enough the justifications for approving the application. The Council said the £500 was not an offer to fund any works or to mitigate any harm to amenity. The Council said while it recognises Mr X’s property is overlooked it does not agree the decision to remove the glazing has caused an unacceptable impact on Mr X’s amenity.
- Councils are required to give publicity to planning applications. The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the requirement was for a site notice or neighbour notification.
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available and relevant evidence and base our findings on what we think was more likely to have happened.
- Mr X says he did not receive a notification letter and would have objected as he was not aware of the changes to the glazing in the window facing his property. I have no reason to think Mr X is not telling the truth about receiving the notification letter.
- In order to find fault I must believe that it is more likely than not the Council did not send the letter in the first place. The law says a notice must be ‘served’ on ‘any adjoining owner or occupier’. Service is considered complete in law when a document is sent to someone by post at their address. The fact it did not arrive does not mean the Council’s actions were automatically fault. Considering the evidence available I believe the letter was generated and posted. What happened to it from there I cannot say.
- When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made. This means we have to consider whether the decision at the time to approve the removal of the obscured glazing was made without fault.
- The case officer’s report shows the case officer did consider the amended plans, planning policy and the impact of removing the obscured glazing on Mr X’s property. The report shows the case officer thought the change in the design of the window to an oriel style window and the fact the development was being moved two metres further away from Mr X’s property meant the impact of the window on Mr X’s property would be reduced. I recognise Mr X disagrees with the case officer’s reasoning however, it was a decision the case officer was entitled to make at the time. I cannot find fault with the decision making process.
- I acknowledge since the development was built the Council has said there is overlooking into Mr X’s property. However, the fact a development may have more of an impact when built than the Council believed it would from the plans does not necessarily mean there was fault in the way it handled the application.
- The Council has agreed to pay Mr X £500 for the distress, time and trouble he experienced in pursuing this matter as it could have told Mr X the reasons for approving the application sooner. I agree this is a suitable remedy.
- I have completed my investigation and found the Council was not at fault for the way it approved the planning application.
Investigator's decision on behalf of the Ombudsman