Summary: There is no fault with the Council’s actions leading to a development’s approval. It considered and addressed Mr X’s concerns about separation distances and loss of privacy. We have completed our investigation.

The complaint

1. Mr X complained the Council did not comply with its own policy when it approved plans for a housing development behind his property. He says:
• The position of the proposed affordable housing is against policy.
• The Council did not consult properly on the plans showing its location
• The development affects his privacy as the proposed houses are too close to his house.

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What I have investigated

2. I have investigated Mr X’s complaint about the Council’s consultation on the proposals as well as the matter of loss of privacy. I have not investigated his complaint about the affordable housing. Paragraph 38 explains why.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6))
6. 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

7. I considered Mr X’s complaint and spoke to him about it.
8. I have also considered the Council’s response to Mr X and to my enquiries.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning policy and guidance

The Development Plan

10. Policy P10 Design, supported by a Supplementary Planning Guidance ‘Neighbourhoods for Living’ seeks to provide an adequate standard of residential amenity by ensuring that houses and gardens are of an appropriate size, receive adequate daylight/sunlight, have adequate outlook and are not overlooked.

Supplementary Guidance: Neighbourhoods for Living

11. This guide contains principles and process guidance to help deliver good housing design. It sets out the following recommended distances to prevent harmful overlooking:
• 10.5m separation from the main ground floor windows (serving living and dining rooms) to a boundary.
• 7.5m from secondary windows (serving kitchens and bedrooms) to a boundary.
12. Where houses face each other (i.e. across a road or across rear gardens) the Council recommends a minimum of:
• 21m from ground floor main to ground floor main windows (10.5m + 10.5m).
• 15m from secondary to secondary (7.5m + 7.5m).
13. It says that it is inappropriate to simply apply the distances without further consideration of local characteristics.

What happened

Planning application

14. In November 2018, the Council received a planning application for the development of approximately 430 houses on land to the rear of Mr X’s property.
15. The Council consulted on the application and received 40 objections. 18 of these were from houses within the adjacent estate, where Mr X lives. These concerns included overlooking, property values, the perceived impact of social housing tenants, and the lack of greenspace and community facilities.
16. In October 2019, the Council discussed the application as a position statement at the City Plans Panel. It was then presented for determination in January 2020 but was deferred until a later date. This was to allow for further discussion and negotiation with the applicant. The application was approved at committee in March 2020.

Mr X’s complaint

17. Between September and November 2020, Mr X complained to the Council about:
• Minimum distances between the existing and proposed houses.
• Loss of privacy.
• The proposed affordable housing not being ‘pepper-potted’ around the site.
18. The Council investigated Mr X’s complaint and responded to each of his concerns.

Distance between properties

19. Mr X said the Council considered it acceptable to build the new houses closer to Mr X’s boundary than the Council policy allows. It said this was because Mr X’s and his neighbours’ gardens are shorter than the standard length. He said the Council said the new development’s gardens were the correct length and are therefore in line with policy.
20. I asked the Council whether it considered the position and garden size of existing properties when determining separation distance for a new development.
21. The Council highlighted that certain streets (including Mr X’s) shared a boundary with the proposed development. It recognised that it was important to ensure that harmful overlooking does not occur, and that houses retain sufficient outlook and are not unreasonably over dominated or overlooked.
22. The position statement discussed at City Plans Panel stated ‘the new houses broadly meet these minimum required distances, both within the development and in respect of surrounding houses.’
23. The report recognised the separation distances with properties in Mr X’s street were approximately 1m short of the guidance in some instances, because these gardens were slightly shorter than the 10.5m guidance, thus meaning the 21m from ground floor main to ground floor main could not be achieved.
24. The report recognised that views from ground floor windows could be mitigated by an appropriate form of boundary screening. The Council acknowledged there was a deficit at ground floor level for some properties. It identified a different method of preventing harmful overlooking. The Council said in circumstances where a fence can be used to protect amenity, then the guidance must be interpreted reasonably.
25. The Council said that planning decisions are a balance of many factors to achieve compliance with the policies of the Development Plan, rather than a tick-box exercise through the rigid application of guidance. It said the separation distances are a guide to aid officers when assessing residential amenity, rather than adopted policy.

Privacy

26. I have seen photographs provided by Mr X. I asked the Council to comment on the fact that there are no hedges or trees between Mr X’s garden and the proposed development highlighting that there was nothing to mitigate the impact on his residential amenity and privacy.
27. The Council’s response said that the approved boundary treatment layout plan included a 1.8m high boundary fence along the common boundary with properties in Mr X’s street. It said there was no requirement for planting/landscaping along this boundary as the fence and the separation distances achieved were considered sufficient to protect the privacy of residents of the neighbouring dwellings.

Planning condition regarding boundary treatments

28. In the interests of residential and visual amenity, the Council attached a condition to the planning permission. This stated that no permanent boundary treatments shall be put in place until full details have been submitted to and approved in writing by the Local Planning Authority.
29. The details relate to the position, design, materials, and type of all walls and/or fences, hedges or permanent boundary/screening treatment.
30. The Council confirmed that the boundary treatment must be installed prior to the occupation of the related dwellings and shall thereafter be retained.
31. During the course of my investigation, the Council said this condition has not yet been discharged. It said the details are currently being considered by the Council.

Analysis

32. The Council carried out consultation in line with national requirements and its Statement of Community Involvement. Mr X submitted his objections and the Council considered them. There is no procedural fault here.
33. The Council highlighted that in some cases, the recommended separation distances could not be met. However, as the supplementary guidance; ‘Neighbourhoods for Living’ makes clear, the distances are a guide. The Council was able to satisfy the Development Plan strategic policy that says homes should not be overlooked, by attaching a condition for a 1.8m fence.
34. The Council said that a combination of the separation distance and the fence, would mitigate against loss of privacy. This was a considered decision that the Council was entitled to make. I cannot question the merits of this decision where there is no procedural fault.

Conclusion

35. The Council has properly considered the impact of the development on Mr X and other neighbours’ amenity. It has addressed the issue of separation distances and attached a planning condition to mitigate against the potential loss of privacy.
36. There is no fault with the way the Council handled the planning application. It considered the concerns raised by Mr X and his neighbours. The Council considered the specific circumstances of the development against the guidance. The Council approved the development in line with the Development Plan’s policies. It also used the guidance to inform the condition related to boundary treatment.

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Final decision

37. I have completed my investigation. There is no fault with the Council’s actions.

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Parts of the complaint that I did not investigate

38. I have not investigated Mr X’s complaint about the position of affordable housing in the new development. This is because I am unlikely to find fault causing an injustice. Mr X said the injustice would be the antisocial behaviour associated with the affordable housing. This is speculative, as there is no evidence that the proposed affordable housing will cause this.

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Investigator's decision on behalf of the Ombudsman