Summary: Mrs X complains the Council was at fault in the way it considered a planning application for a new development on a site next to her home. We found fault as the Council did not specifically refer to the impact of the proposal onto the windows of Mrs X’s property. But this fault did not cause Mrs X an injustice, so we have completed our investigation.

The complaint

1. Mrs X lives next to the site of a planned development, to be built to the rear of an existing property. Mrs X complains the Council:
• failed to properly consider the impact of the new development on her property.
• used inaccurate information about her property when making the planning decision.
• failed to carry out a site visit.
2. Mrs X says the matter has caused her distress and will result in loss of light and amenity to her home.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

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 have read the papers submitted by Mrs X and spoken to her about the complaint. I considered the Council’s response to Mrs X’s complaint and viewed relevant online planning documents and maps. I viewed the webcast of the planning committee (committee) meeting at which the application was discussed.
6. Mrs 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

7. The Council received a planning application to develop a property near to Mrs X’s home including building a house in the rear garden. The new property would be next to Mrs X’s house. Mrs X’s house has living space on the first floor with bedrooms on the ground floor. The front of Mrs X’s property faces west and has large windows serving a first floor living room and windows below serving a bedroom on the ground floor. Both sets of windows are a ‘wraparound design’, so there is small window on the corner of each into the south elevation. The glass of the ground floor small window is clear, but the first-floor small window is obscure glazed and non-opening.
8. The Council told neighbours of the proposal including Mrs X. Planning officers wrote a report on the application for the committee to consider. The report contained a description of the proposal and planning history of the site and nearby developments. It included objections from residents about the proposal. The concerns included overdeveloping the site and other nearby back land developments, overshadowing and loss of daylight and sunlight to properties (including Mrs X’s home). The objections also referred to a planning appeal for a proposed similar development dismissed by a planning inspector for a nearby property.
9. The report outlined the material planning considerations and relevant Council policies. Officers considered the principle of subdividing the plot acceptable and fitted in with the surrounding area. The report explained the proposal had changed from that first submitted due to officer concerns about design, neighbouring amenity, and standard of accommodation.
10. Officers assessed the impact on neighbouring amenity and noted a possible loss of light and an increase in overshadowing to Mrs X’s property. But reported there were no windows in the south side of Mrs X’s property. So, officers considered there was no impact in loss of sunlight or daylight to any neighbouring windows. Officers said there would only be minor overshadowing of nearby gardens, including Mrs X’s and unlikely to be the areas most in use. The report assessed there was no adverse impact in overlooking or loss of privacy to neighbouring properties.
11. Overall officers assessed the proposal as a contribution to the Council’s housing targets. They considered it a high-quality design with no significant impacts on neighbouring amenity so recommended approving the application.
12. The committee report contained an officer presentation of the proposal with maps, plans and photographs of the site and adjoining properties including Mrs X’s home. A representative for Mrs X and other neighbours addressed the committee and outlined the objections raised. This included the impact on Mrs X’s amenity and the report wrongly saying her property had no windows on the south side. The applicant’s agent also spoke to the committee.
13. The committee discussed the proposal and councillors were able to ask questions. These included discussing the dismissed appeal for a similar development at a nearby property. It also included clarification on the windows in Mrs X’s property. The applicant’s agent explained there was a first-floor window in Mrs X’s property on the south side, but it was not a primary window and was obscure glazed. The committee voted to grant planning permission for the proposal subject to planning conditions.

Mrs X’s complaint to the Council

14. Mrs X complained to the Council about its decision to approve the application. Mrs X considered the Council wrongly applied planning policy by allowing a ’back land development ‘ and put great emphasis on needing to provide a five-year supply of housing. Mrs X said she had asked the Council to carry out an assessment on the proposed new build overshadowing her property and causing loss of daylight and sunlight. But there had been no response. Mrs X expressed concern officers had not visited the site to see the impact of the proposal from her property.
15. Mrs X said there had been an error at the committee meeting as the report wrongly said her property had no windows in the south elevation. Mrs X said there were two windows, one at ground floor for the bedroom and this was a major source of light to the room. There was also a first-floor window. The applicant’s agent had told the committee about the first-floor window being there and obscure glazed. But officers had not corrected the statement and explained about the ground floor window.

The Council’s response to Mrs X’s complaints

16. The Council explained that officers had not carried out site visits since the first lockdown in March 2020 due to the COVID-19 pandemic. Instead, officers relied on up-to-date digital imagery, photographs from applicants, neighbours and occasionally from previous site visits. The Council considered this enough to enable officers to carry out an assessment.
17. The Council confirmed that in this case officers also used site visit photographs from a recent previously withdrawn application to develop the site.
18. The committee discussed the concerns about the lack of a site visit and officers explained the decision not to visit. The committee were advised they could defer deciding the application if members wished to carry out a site visit themselves. But the committee did not pursue this further.
19. The Council explained how it considered planning policy in this case and national planning policy had a presumption in favour of development. This included a council planning positively for new development and approving individual applications wherever possible. It said although planning policy for development had changed on using residential gardens this did not prevent such an application from being acceptable. The Council said it considered each application on its merits.
20. The Council confirmed the officer’s report explained why it considered the proposal acceptable in planning terms. The report looked at the relevant material planning considerations which included the Council’s five-year supply of housing. The Council considered it had looked at all aspects not just the housing shortfall.
21. The Council noted the report did not refer to the back land application dismissed by a planning inspector in 2011. The Council said it was an oversight but did not consider it prejudiced the committee in deciding the application. This was because the appeal was discussed at the committee meeting so members were aware of it when weighing up their consideration of the proposal.
22. The Council says the bedrooms in Mrs X’s property are located on the ground floor and there is a small window on the south side serving a bedroom. But the south elevation of Mrs X’s property is behind fence dividing the properties which will be retained. The south window is not the main window to the room. The main bedroom windows of Mrs X’s property are west facing, and the Council considers these the most significant when looking at the impact of the proposal. The Council told Mrs X the report considered the impact onto her property and noted there may be some overshadowing and loss of light. But no undue impact to warrant a refusing the application.
23. The Council accepted this should have been clarified at the committee meeting. But it would not have changed its recommendation to approve the application. The Council considered it unlikely to have led to a different decision by the committee members.
24. The Council said it received several objections to the proposal, so it went to the committee to decide. While Mrs X may disagree with the planning assessment when weighing up the planning considerations, it was ultimately for the committee to decide. The Council considered the committee had enough information to decide the application. The committee members were told they could defer the application if they wished but did not choose to do so.

My assessment

25. Mrs X considers the Council was wrong not to visit the site before the application was decided. However, there is no requirement for a local planning authority to carry out a site visit. This was the case within the planning process before the additional limitations applied during the COVID-19 pandemic. It was for the Council’s officers to determine whether they had enough information to make their recommendations to the committee. Officers took the view that the information they held, including the application plans, online maps, and recent photographs of the site, was enough for them to make their recommendation. I see no evidence of fault in the way the officers reached this judgement.
26. The Council accepts there were omissions from the planning officer’s report which went before the committee. This includes mentioning the planning refusal of a nearby ’back land’ development and appeal decision. The Council accepts the application should have formed part of the officer report. But the evidence shows the refused application was discussed by the committee members before they made their decision. So, while its omission was an error, I do not consider the committee would have made a different decision as they were aware of the dismissed appeal.
27. The Council says the report did refer to loss of light and overshadowing to Mrs X’s property. But it accepts the report was incorrect as it did not mention Mrs X’s ground floor window, or the first-floor window on the south elevation of her property facing the proposed new development.
28. I consider it was fault for the Council not to specifically mention the impact of the proposed development onto Mrs X’s windows both west and south facing. The inclusion would have helped to clarify the officer assessment of the proposal on neighbouring amenity. But I do not consider it has caused a significant injustice to Mrs X. This is because the evidence I have seen shows the officers were aware of the impact onto neighbouring amenity in their discussions with the applicant and suggested changes to the scheme to lessen the impact. The officers’ report also referred to the assessment carried out on the impact on neighbouring gardens and amenity. Officers took the view there was some overshadowing, but not sufficient harm caused to sustain a planning refusal.
29. The evidence also shows the ground floor window is behind an existing boundary fence which is being retained and it is a secondary window for the room it serves. I am satisfied Members were aware from the plans the separation distances between properties and proposed boundary treatment, and the presence of the first-floor window from the committee discussion. So, I do not consider the committee’s decision to approve would have been any different even if the officers’ report included clarification on the windows. Because of this I do not consider that further investigation will achieve a different outcome for Mrs X.
30. I am aware Mrs X disagrees with the officers’ view there was limited overshadowing to her property, but this was a professional judgement they were entitled to make. The committee members then also considered the matter and found no grounds to disagree with the officers’ recommendations. It was open for the committee members to disagree with the officers’ recommendation at the meeting and put forward their reasons for a planning refusal, but they did not do so.

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Final decision

31. I am completing my investigation. I have found fault as the Council did not specifically refer to the impact of a proposed new development onto the windows of Mrs X’s property. But the fault did not cause an injustice to Mrs X as the committee’s decision to approve the proposal would have been the same.

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Investigator's decision on behalf of the Ombudsman