Summary: Mr X complained the Council wrongly granted planning permission for his neighbour’s development. There was no fault in the Council’s decision making process and therefore I cannot comment on the decision reached. The Council was at fault for a long delay in formally responding to Mr X’s complaint. This meant Mr X was put to additional time and trouble pursuing the matter, for which the Council should apologise and pay him £150.

The complaint

1. Mr X complained the Council wrongly granted planning permission for his neighbour to build a development, that included a window that overlooks his own property. He said, because of this, he has to keep the curtains closed 24 hours in the sitting room and main bedroom to ensure privacy. He also complained about a delay in responding to his complaint.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I considered:
• the information Mr X provided and discussed the complaint with him;
• information available on the Council’s planning portal and provided in response to my enquiries, including a discussion with a Council officer; and
• relevant law and guidance, as set out below.
6. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

7. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like the impact on neighbouring amenities, such as overlooking/loss of privacy, and loss of light. The test is not whether there will be any loss but whether the loss reduces the neighbour’s amenity below an acceptable level. This is a matter for the decision maker’s professional judgement.
9. Councils need to provide evidence to show they have considered the material planning considerations. This evidence is usually found in the case officer’s report and the planning decision notice.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

What happened

11. Mr and Mrs X live in a bungalow. Their neighbour, Mr Y, applied for planning permission to develop his property. Mr X objected to the proposal. He said:
• the development would restrict light to his main bedroom and sitting room; and
• a proposed roof light would look straight into the main bedroom and living room. He suggested the window be moved.
12. The case officer, in their report, noted Mr X’s property had two sets of patio windows at the side, facing the proposed extension. One set of patio windows served the living room, although the main outlook for that room was from the rear. The other patio windows served the main bedroom.
13. The officer’s report noted that:
• Mr Y’s property was set at a higher level than Mr X’s property;
• The proposal would increase the height of Mr Y’s property by around 1.35 metres, although the side roof facing Mr X’s property was hipped away from Mr X’s property;
• Given the boundary treatment, the separation distance of almost 9.5 metres, the hipped roof and the orientation, the officer did not consider the proposal would lead to such a loss of outlook or light that it should be refused on amenity grounds.
14. The officer’s report also noted the objection about the roof light and overlooking but said that “given the location it is not considered that these [sic] roof light would lead to unreasonable overlooking issues”.
15. The Council approved the application. It did not impose any conditions about the roof light.
16. Mr X complained about the development in early April 2020 whilst builders were still on site. He said the development was not built in accordance with the approved plans and the roof light caused a loss of privacy, which meant he had to keep curtains closed all day.
17. The case officer visited the site twice in April 2020 to consider these concerns raised and they spoke to Mr X. Mr X said the officer told him the Council had made a mistake in approving the plans. After the second visit, the officer sent an email to Mr X in which they apologised for their oversight. They said they had agreed with Mr Y that the roof light would be obscurely glazed and had agreed to fit a restrictor to prevent the window being opened more than 10 cm.
18. In October 2020 a principal planning officer visited the site. By this stage, Mr Y had made internal changes to the plans and the roof light was now serving part of an extended bedroom. The obscured glass had been fitted and the principal planning officer asked the builder to install the restrictor.
19. After the complaint to us, Mr Y made a further planning application in relation to some aspects of the development that were not in line with the original planning permission. As part of the planning process, the Council took the opportunity to formalise the situation relating to the roof light by imposing a planning condition requiring it to be obscurely glazed and a restrictor fitted. The Council approved the new planning application on 21 December 2021, including a condition about the roof light. Mr Y was given one month from that date to fit the restrictor and the Council told me it would check he had done so at the end of that period.

Complaints handling

20. Mr X complained in August 2020. He said:
• builders working on the site were staring at him and Mrs X when they were in their living room;
• Mr and Mrs Y had opened the window on a site visit, looked straight at Mr and Mrs X and quickly closed it again when they saw them;
• he had to keep the curtains closed all the time in both rooms to maintain privacy, as the only alternative would be expensive alterations to his property.
21. Mr X also complained about the ground floor windows that he said overlooked his property.
22. Mr X wrote to the Council again in September 2020 and February 2021. After contacting us, he sent a further complaint in April 2021. He received no response and so contacted us again. Only after our involvement, did the Council respond to his complaint in July 2021, almost a year after he first made a formal complaint.
23. The Council, in its complaint response, said:
• the case officer visited the site in mid-October 2020 to assess the impact of the development. They did not consider the ground floor windows caused unreasonable overlooking but accepted the roof light could cause unacceptable overlooking into Mr X’s living room and main bedroom.
• the case officer had mistakenly regarded the roof window as being at a higher position that would not have caused overlooking, and therefore had not sought planning conditions requiring it to be fixed shut and obscurely glazed;
• after the site visit, the case officer requested obscure glass and a restrictor limiting the window to opening 100 mm only. Although the restrictor had not been installed when the principal planning officer later visited the site, it understood this had now been done;
• although it understood Mr X remained unhappy with the planning decision initially made, “which would have allowed unacceptable overlooking” of his property, the actions of planning officers “have now reasonably protected the residential amenity” of his property;

It added Mr Y was unlikely to make any changes to the window as this would require further planning permission and reconsideration of the overlooking issue.

24. On the basis of the above points, it concluded it was not expedient to take enforcement action.

My findings

25. We are not an appeal body. My role is to consider whether there was fault in the decision-making process. In the absence of fault in the process, I cannot comment on the decision reached.
26. The case officer’s report shows they considered the increased height of the development to Mr Y’s property. They considered whether the roof light would lead to unreasonable overlooking issues and concluded that it did not.
27. I have found no fault in the process because the case officer considered relevant factors when deciding the development would not cause unacceptable overlooking. I cannot comment on the decision reached if there is no fault in the decision making process.
28. That said, the Council accepts the case officer made an error of judgement when assessing the roof light, which was considered to cause an unacceptable overlooking when built. . When Mr X raised concerns about this, and two ground floor windows on the same side of Mr Y’s property, the Council immediately carried out a site visit and discussed the situation with Mr X.
29. The Council told him it did not consider there was an unacceptable overlooking in relation to Mr Y’s ground floor window and explained its reasons for concluding this. It agreed there was an unacceptable overlooking as a result of the roof light. It negotiated with Mr Y to ensure the roof light was obscurely glazed and agreed a restrictor would be fitted to prevent the window being opened more than 10 cm.
30. The restrictor was not fitted and Mr X raised concerns on several occasions from August 2020 that the window had been opened fully causing a loss of privacy. At that stage, because the Council had not imposed a planning condition relating to the roof light, it could only negotiate with Mr Y and could not take enforcement action. Since then Mr Y has made a further planning application and the Council has imposed a planning condition relating to the roof light. With obscure glazing and the window fixed closed, the Council now considers the roof light is acceptable.

Complaints handling

31. When Mr X first raised concerns with the Council in April 2020, the Council immediately carried out a site visit and took appropriate action to address his concerns.
32. Mr X complained again in August 2020, the Council did not respond to him. He wrote again in September 2020. Although a principal planning officer carried out a site visit and spoke to Mr X, the Council did not send a formal response to his complaint. Mr X wrote again in February and in April 2021. He complained to us on 13 July 2021 and the Council finally responded to the complaint on 27 July 2021. The failure to respond to the complaint was fault. This fault meant Mr X was put to the time and trouble of writing repeatedly to the Council over several months, before complaining to us.

Back to top

Agreed action

33. The Council should, within one month of the date of the final decision:
• apologise to Mr X for its failure to respond to his complaint between August 2020 and July 2021;
• pay him £150 to remedy the avoidable time and trouble Mr X was put to as a result; and
• remind relevant staff of the importance of responding to complaints in line with the Council’s complaints policy.

Back to top

Final decision

34. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault and the Council agreed.

Back to top

Investigator's decision on behalf of the Ombudsman