Summary: Mrs X complained about the Council’s decision to grant planning permission for development near her home. We found the Council at fault for not expressly addressing the impact of the development on her privacy. However, this fault was not likely to have affected the Council’s planning decision and its apology suitably addressed the distress its omission had caused Mrs X.

The complaint

1. Mrs X said the Council was wrong to approve development that was overbearing and would reduce light and privacy to her home. Mrs X said the development had caused much distress and anxiety and reduced the value of her home. Mrs X wanted the Council to withdraw the planning permission or, if that was not possible, to secure obscure glazing in windows overlooking her home. Mrs X also sought compensation for the loss of value to her home.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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

5. I:

• considered Mrs X’s written complaint and supporting papers;
• talked to Mrs X about the complaint;
• considered information on the Council’s website about the development;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s comments with Mrs X; and
• shared a draft of this statement with Mrs X and the Council and considered their responses before making a final decision.

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What I found

Background

6. Most development needs planning permission from the local council. Before deciding whether to grant permission, councils must publicise the applications they receive so people may comment on development proposals. Councils must decide each planning application on its own merits. They must also make their planning decisions in line with their development plan policies unless material considerations indicate otherwise.

7. Material considerations concern the use and development of land in the public interest, for example, traffic generation and overlooking. Private matters, such as an applicant’s behaviour and property prices, are not material planning considerations. Peoples’ comments on planning and land use issues are material considerations that councils must take into account, but they do not have to agree with them. Planning policies and material planning considerations may pull in different directions. For example, promoting housing development and protecting living conditions of existing residents. Councils may give competing considerations different weight.
8. There is no legal requirement to visit an application site, but a council planning officer often will do so before writing a report on an application. A report will draw on all the relevant planning information about the development but will not repeat it. The report will also set out the planning officer’s assessment of the development against relevant policies and material considerations. Having weighed and balanced the key planning issues, the report usually ends with a recommendation to grant or refuse planning permission.
9. A senior planning officer authorised by their council to decide applications will consider most reports. The senior officer will have access to the planning information on which the report is based. The senior officer does not have to accept the report recommendation but may give different weight to the planning issues when deciding an application.
10. Normally, councils grant planning permission if they consider the proposed development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal.

The Council’s decision making

11. The Council publicised the application for development near Mrs X’s home, and she took the opportunity to comment on the proposals. A Council planning officer visited the area and then prepared a report on the application (‘the Report’). The Report followed a standard format in identifying relevant planning policies and summarising representations received in response to publicising the application. The summary included the issues raised by Mrs X about the development having an overbearing impact and removing light and privacy. The Report also identified key issues for determining the application, including the design of the development and its impact on neighbouring properties.
12. In assessing the design of the development, the Report referred to peoples’ concerns about its size, scale, siting and impact on the area. The Report recognised the development would alter the appearance of the area but found it would not cause harm and was in line with local design planning policies.
13. The Report also named several properties near the application site, including Mrs X’s home, and considered how the development affected them. The Report referred to various concerns Mrs X had raised in her representations about the development. However, it did not expressly mention loss of privacy although Mrs X had objected to how part of the development would overlook her home. The Report set out the relationship of Mrs X home to the application site and proposed development and the approximate distance between them. It recognised the development would cause some morning shadowing to Mrs X’s home, but that afternoon and evening light would be largely unaffected. The Report found the degree to which the development affected light would not be harmful to Mrs X’s enjoyment of her home. The Report also recognised the development would change Mrs X’s outlook. However, it did not find the extent of that change to be overbearing or justified refusing planning permission. The Report concluded the development would have an acceptable relationship with Mrs X’s home.
14. The Report addressed the impact of proposed windows in the development on the privacy of another nearby property. The Report said neither these windows, nor “any other windows on the proposed development” caused a loss of privacy that harmed amenities.
15. The Report recommended the grant of planning permission for the development. A senior Council officer considered the Report and agreed the recommendation. The Council said its normal practice included the senior officer viewing the application plans when considering an officer’s report. And nothing suggested it had not done so in deciding the application for development near Mrs X’s home. The Council issued planning permission for the development.

Mrs X’s complaint

16. Soon after the grant of planning permission, Mrs X complained to the Council. Central to Mrs X’s complaint was how it could approve the development when a proposed window would look straight into her home removing her privacy.
17. In responding to Mrs X’s complaint, the Council recognised Mrs X’s concerns but confirmed it had considered all representations in reaching its decision. However, it accepted the Report had not expressly addressed the impact of the window Mrs X said removed her privacy. The Council apologised for its omission. The Council also explained why it did not find the window caused unacceptable harm to Mrs X’s home. The Council said there was an acceptable distance between the proposed window and Mrs X’s home. And, given the angle of the view, peoples’ average height and existing boundary treatments, there would be no unacceptable loss of privacy. So, while the Council recognised some perceived loss of privacy, this had not justified obscure glazing for the window or a refusal of planning permission.
18. In coming to the Ombudsman, Mrs X pointed to the Report finding the development would create some morning shadowing to her home and change her outlook. And, in granting planning permission, the Council had approved a window giving views straight into her home. Mrs X said the development was ‘huge and totally overlooked’ her home. She therefore disagreed that refusing planning permission could not be justified.

Consideration

19. We are not an appeal body, and I could hold no view on whether the development was or was not acceptable on planning grounds. My role was to consider whether the Council acted with fault in reaching its decision to grant the development planning permission. Without evidence of fault, I could not question the Council’s decision however strongly Mrs X might disagree with it (see paragraph 2).
20. The Report provided evidence the Council considered the siting, size and scale of the development and how it would affect light to and the outlook from Mrs X’s home. I recognised that Mrs X found these impacts unacceptable. However, as the Council acted correctly in considering these impacts, I had no grounds to find fault or therefore to question its views on these issues.
21. However, the Report did not provide clear and direct evidence to show the Council considered the impact of the development on Mrs X’s privacy. This was a material planning issue and Mrs X had raised it in her representations on the development. I therefore found the Council’s failure to expressly address the issue in the Report was fault.
22. The Council had already acted to put matters right. It quickly apologised to Mrs X for not addressing the privacy issue in the Report, which failure was likely to have caused Mrs X distress. The Council also reminded its planning officers about the importance of addressing all material considerations in reports assessing applications. However, a key issue for me was whether the failure to expressly address the privacy issue in the Report was likely to have affected the Council’s planning decision.
23. After granting planning permission, the Council explained to Mrs X why it did not consider the impact of the development on her privacy justified refusing planning permission. It also told us that it had considered the privacy issue but regrettably failed to record that consideration in the Report. However, Mrs X is likely to be dissatisfied with explanations provided after the grant of planning permission.
24. I recognised the development presented a substantial and significant change for Mrs X and her home. However, in planning terms, it was minor development. Overall, the Report presented a thorough assessment of the proposals, including how the development would affect several nearby homes. The planning case officer had visited the application site and viewed it from Mrs X’s home. The Council’s post decision explanation and comments about the development’s impact on Mrs X’s privacy were not without merit or unsustainable on planning grounds. I therefore found the failure to expressly refer to the impact of the development on Mrs X’s privacy was unlikely to have affected the Council’s planning decision. So, if the fault identified at paragraph 21 had not taken place, Mrs X would probably be in the same position. That is, living near the development. As the Council had already apologised, I found no outstanding direct and significant injustice to Mrs X that I now needed to put right.

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Final decision

25. I completed my investigation finding fault by the Council, which did not affect its planning decision, and had been suitably addressed by its apology to Mrs X.

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Investigator's decision on behalf of the Ombudsman