Summary: Mr X complained about the way the Council approved a planning application for a mesh façade on a new public building which causes him and his neighbours, significant visual disturbance, nausea and headaches. While we recognise the negative impact of the building, we have not found fault with the way the Council considered the planning application.

The complaint

1. Mr X complained on behalf of himself and his neighbours, that Sevenoaks District Council (the Council), when considering a planning application failed to consider the impact of a mesh façade on their amenity. In particular, it failed to consider the highly reflective nature of the material which causes visual intrusion and migraines. The complainants experience discomfort and distress since the building was constructed.

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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 an organisation’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 an organisation’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 considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. 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

6. The Council received a planning application for a new public building on a site near the complainants’ properties. The building proposed a sheet of mesh along the side of the building nearest to them. It was partly for aesthetic reasons and partly as a sun-shield to reduce direct sunlight to users of the building.
7. The documents and drawings enclosed with the application described and depicted the design, colour and extent of the mesh. The Council consulted nearby residents including Mr X and his neighbours on the application. The officer’s report noted that the complainants’ properties were nearly 30 metres from the proposed building and so it would not adversely impact on their amenities (light, outlook and privacy).
8. The Council granted permission for the development and included a condition requiring samples of all materials to be submitted and approved. The applicant submitted a sample board included a piece of the mesh. It was a clearly reflective material. The Council approved the materials.
9. When the building was being constructed Mr X and his neighbours were shocked to see the size and brightness of the mesh. The sun reflected directly off the mesh during most of the day and they found the reflection so bright it caused them visual disturbance, nausea and headaches.
10. Mr X complained to the Council as he was experiencing headaches every day and he was concerned about a loss of privacy due to overlooking from people using the building. He suggested the possibility of placing semi-transparent vinyl on the windows of the public building and planting trees to screen the mesh.
11. The Council contacted the architects about the problems and possible solutions. The architects said a privacy film would be possible but would spoil the concept of the building as a shop window. It said trees may be possible but would be expensive and possibly hard to do given the space available. In respect of the mesh, it said it had several purposes:
• to create an identity for the building and providing a relief to the composite cladding elsewhere on the building; and
• to reduce the amount of sun (and heat build-up) directly on the face of the windows; and
• at night-time to help promote the building through the ‘shop-window’ design.
12. The Council also met with the development manager, the project manager, and the contractors to discuss the issues raised by the complaint. They discussed the possibility of trees but noted concerns about the proximity to services, maintenance and the impact on light to the building. The contractor agreed to provide details of some tree and privacy film options. The Council acknowledged the benefits of the mesh and agreed to contact the manufacturer to see it was aware of any similar concerns being raised on other projects.
13. The contractor came back with concerns about the viability of installing trees in that location. It noted small trees would take 10 to 15 years to mature and large ones would be very expensive. The manufacturer of the mesh said they had never come across their product causing headaches.
14. The Council responded to Mr X’s complaint in August 2021 explaining that the mesh had been properly approved through the planning process. No concerns had been raised during consultation and it was not a statutory requirement to consult people again on the details of the materials. In respect of overlooking it said the Council had considered the issue and concluded that the separation distance was sufficient to avoid a significant impact on his amenity. It also said that as planning permission had been properly granted, it was not possible to consider any of Mr X’s suggested improvements.
15. Mr X escalated his complaint and provided a letter from his doctor confirming the migraine symptoms he was experiencing regularly.
16. The Council responded at stage two of its complaints procedure. It acknowledged the problems Mr X and his neighbours were experiencing but said that the planning permission had been properly granted and the manufacturers of the mesh had never received any other complaints about the product. It could not plant larger trees but considered the approved landscaping was quick growing and would soften the outlook onto the building in a ‘comparatively short period of time’.
17. Mr X complained to us.

Analysis

18. I understand the difficulties Mr X and his neighbours experience from the development, particularly on sunny days. However, my role is to consider whether there was any fault in the way the planning application, and specifically the mesh, was considered and approved.
19. I have not identified any fault in the decision-making process. The drawings and documents accurately showed the colour and design of the mesh. The Council consulted relevant parties including the complainants and added an additional control by adding the condition requiring samples of the materials to be approved. This approval involved the submission of an actual piece of the mesh. The case officer viewed the relationship between the complainants’ properties and the site and considered the separation was large enough to prevent any significant impacts on their amenity.
20. The remaining question is, should the Council had done more to anticipate the impact of the mesh on the nearby residents? Throughout the process the emphasis was mainly on the benefits of the mesh screen to the users of the building and the acceptability of the design in the built environment. There is no evidence that any potential negative effects on nearby residents were considered. However, given the lack of any other complaints about the mesh or indication of adverse impacts, I have not concluded the Council should have anticipated the problem.
21. I also consider the Council made reasonable efforts to investigate the complaint and see if there was a solution to the glare. It is disappointing that nothing has been offered beyond waiting for the landscaping to grow sufficiently to soften the impact (which will take years). But I have not concluded that the lack of options is down to fault by the Council, but rather the constraints of the site.

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Final decision

22. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr X.

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Investigator's decision on behalf of the Ombudsman