Summary: the complainant complained the Council failed to properly consider a planning amendment that has significantly affected her home. The Council accepts it failed to recognise a significant change to the plans and offered a remedy. We found the Council at fault and the Council agreed to the increased remedy we recommended.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council failed to properly consider the impact on her privacy and amenity when it granted planning permission to her neighbour. Ms X further complains the Council failed to properly exercise its enforcement powers without delay to ensure compliance with the planning permission it had granted.
2. Ms X says this fault has led to significant reduction in her privacy, increasing the overlooking from her neighbours resulting in her family adjusting how they live in and use their home.
3. To address the impact Ms X wants the Council to use its powers to ensure her neighbour installs obscured glass in one of the windows approved in the planning permission. Further Ms X wants the Council to use its discretionary powers of enforcement to ensure compliance with the planning permission and to remedy the lost privacy, distress, time, and inconvenience caused to her.

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The Ombudsman’s role and powers

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’. 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)
5. If 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

6. In considering this complaint I have:
• Spoken with Ms X and read the information presented with her complaint;
• Put enquires to the Council and reviewed the information sent in its response;
• Researched all relevant law, guidance, policy, and procedure.
7. I shared with Ms X and the Council my draft decision statement and reflected on comments received before reaching this my final decision.

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What I found

The law, guidance, policy, and procedure

8. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
9. Councils must give publicity to planning applications. The publicity required depends on the nature of the development although the Council must publish all applications on its website.
10. Material considerations concern the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities).
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. The Council’s planning publicity policy sets out how officers should publicise planning applications. When sending neighbours letters to tell them about the application the policy says the Council will send them “…to properties directly adjoining the application site…”
15. Under the publicity policy a householder application will be subject to the display of a site notice, letters sent to neighbours, an advert in the press and information displayed on the Council’s website. The policy does not direct how the Council should publicise amendments to the planning application.
16. Under the Council’s Local Plan, Policy 58 (both previously and in the Plan adopted in 2018) the Council said it would allow changes and extensions to existing buildings where they:

“ c) ensure that proposals for doors and windows… are of a size and design that respects the character and proportions of the original building and surrounding context…”

“3) do not unacceptably overlook, overshadow or visually dominate neighbouring properties.”

17. The policy continues: “…it is vital that any alteration or extension is carefully designed to avoid them…negatively impacting on the amenity of neighbouring properties in the area…”
18. The Council’s planning officers exercise their professional judgement by assessing the likely impact of any proposals on neighbouring properties though a site visit. The Council allows councillors to refer applications to the Planning Committee for a decision. Officers usually refer planning applications for large or controversial development to the Planning Committee for a decision.
19. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach. They should consider if it is proportionate or necessary to do so.

What happened

20. The Council has shared with me the significant volume of correspondence between the Council and Ms X. Plus its planning files and responses to the complaint at stages 1 and 2 of its complaint’s procedure. I have read and reviewed all the information presented by the Council and Ms X. Therefore, what follows contains a summary of the facts to explain my decision. It is not intended as a record of the full facts.
21. In May 2018 Ms X’s neighbour, Mr Y applied for planning permission to extend his property I shall call House Y. The Council publicised the application through a site notice, a notice in the press, on its website and through letters sent to neighbours including Ms X. It also sent letters to the statutory consultees such as the highways authority.
22. In June 2018 Mr Y proposed amendments to the original plans for House Y. The Council told consultees of those amendments.
23. On 20 September 2018 Mr Y presented further amendments which the Council’s case officer considered reduced the width of the rear extension and therefore improved the impact on the area. Therefore, the Council issued its decision granting planning permission on 28 September 2018. Ms X says this amendment which the Council did not publicise included a large window double the size of the original downstairs, and two further sections added to a four-section high level window.
24. To protect Ms X’s home’s amenity the Council imposed a condition on the planning permission placing the applicant under a duty to erect screening on the rear terrace.
25. In the Council’s case officer’s report on the application, they explain the weight given to the Planning Inspector’s report on the draft local plan the Council expected to adopt soon. Councils should consider the policies in a draft local plan in its final stages as a material planning consideration when deciding whether to grant planning permission.
26. The Council’s case officer summarised the objections received resulting from the publicity given including those from Ms X. Ms X listed concerns about overlooking, loss of privacy and negative impact on the amenity of the area. The report directs readers to the application file for more detail on the application.
27. In May 2019 Ms X emailed the Council to say Mr Y had inserted a large window on the south elevation of House Y overlooking Ms X’s home. This window of more than three metres Ms X believed the planning officer had missed when considering the planning application. Ms X said the Council did not share the change to the dimensions of the window made in September 2018 before granting planning permission so she could not comment on them.
28. Ms X said in her email the wide window allowed her neighbours to see into her kitchen, larder, dining room and main sitting room as well as in the garden. This she said resulted in much greater overlooking and loss of privacy than she had experienced before the Council granted planning permission.
29. The window now inserted, faces Ms X’s home. Ms X says it is 3.45m in length, that is 1.5m wider than the first plan produced, and the Council had said would cause a loss of privacy.
30. Ms X said is also now overlooked because the high level six section window in Mr Y’s adapted plans do not have obscured glazing or limited opening and so afford an intrusive view. Ms X says the window is one window with small thin bars giving the illusion of the six sections shown in the plans, increasing the potential for overlooking.
31. The Council found the building complied with the planning permission except the developer had not erected the screening on the rear terrace. Therefore, the Council issued a Breach of Condition Notice. The planning permission did not contain any other controls on any overlooking of Ms X’s home. Mr Y erected screening but it did not extend to the whole depth of the terrace. However, the Council considers Mr Y discharged the planning condition and met the directions in the Breach of Condition Notice.
32. In responding to my enquiries, the Council says it failed to follow good practice in September 2018. The Council accepts it should have publicised the latest amendments because of the increase in size of the proposed windows. Further, the Council accepts its case officer failed to recognise the likely impact on Ms X’s property of the high-level windows and therefore the Council did not impose any conditions to reduce that impact. The Council says it should have considered imposing a condition to obscure glaze the high-level window and have limited opening. The Council says it should have considered imposing a condition for screening along the boundary with Ms X. The Council says this would not remove overlooking and loss of privacy. However, the Council says in planning terms it could reduce overlooking and the extension as built more acceptable.
33. The Council recognises that it has no legal power to impose a duty retrospective of the planning permission on the developer to obscure glaze the window or plant screening material. The Council has offered to work with Ms X to agree some planting on her boundary with the development and to secure trellis to the top of the existing fence to further reduce overlooking. In recognising the avoidable distress caused the Council offered a payment of £100 in recognition of the poor communication with Ms X. The Council recognised the delay in the enforcement investigation. Plus, the failure to impose a suitable condition on the planning permission. It has offered £150 in recognition of the distress caused.

Analysis – was there fault causing injustice?

34. My role is to consider if the Council considered the planning application without fault. If I find it acted with fault, I must consider what impact that had on Ms X and decide what the Council should do to address the injustice.
35. The law does not impose a duty on councils to tell neighbours or consult with statutory consultees on amendments. , We believe best practice obliges councils to share any material amendments to planning applications with neighbours and other consultees. It should do so in the same way it publicises the original planning application. This ensures the Council has before it all relevant information, including objections when it decides an application. The Council accepts it did not meet best practice. The failure to tell Ms X of the amendment creating such a large window I find as fault.
36. The Council’s case officers failed to recognise the likely impact of the amendment. They failed to see such a large window and high-level windows without obscure glazing would affect Ms X’s privacy both in her home and garden. The faults mean Ms X experiences significant avoidable overlooking and lost privacy in her garden and her home. A loss of privacy the Council should have properly considered and reduced through imposing conditions on the planning permission. I find the failure to both recognise the likely impact of the amendment and consider imposing suitable conditions as fault.
37. The Council accepts it acted with fault. It has tried negotiations with the neighbour, but they are not willing to make any changes to the building. So, the Council has considered alternative measures to reduce the overlooking by proposing screening although it accepts this will not remove the overlooking in the way obscured glazing and a restrictive opening would do.
38. I cannot compel the Council to undertake action for which it has no legal powers to enforce compliance. Therefore, I must consider if the remedy offered is proportionate to the harm experienced through the loss of privacy.
39. In our “Guidance on Remedies” we explain our role is to try and place people in the position they would have been but for the fault. If that is not possible then we will recommend a symbolic payment in recognition of the avoidable distress, time and inconvenience caused. In our Guidance we suggest a payment of between £1,000 and £3,000 to address significant loss of privacy. We set the amount having considered any other mitigating measures offered, such as help with extra screening.
40. Our Guidance also recommends between £100 to £300 in recognition of delay, and a further similar scale for inconvenience in following up a complaint.
41. I recommended a payment at the higher end of the scale of £2,500. For the delay in the enforcement investigation which added to Ms X’s distress I recommended a payment of £200. Further, Ms X has experienced significant avoidable time and inconvenience in following her complaint and I recommended a payment of £300. That is a total payment of £3,000. This coupled with the Council continuing to explore with Ms X screening through planting, screen fencing or trellis along the border I believe is a proportionate remedy for the harm caused.

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Agreed action

42. The Council agrees to my recommendation and will within four weeks of my final decision apologise to Ms X and pay her £3,000 and send her its proposals for further screening for her consideration.

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Final decision

43. In completing my investigation, I find the Council at fault causing an injustice for which it has agreed a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman