Summary: Mr B complained about the way the Council decided a planning application for development near his property. In particular he said the Council failed to properly consider the impact of the development on his amenity and failed to follow the Council’s planning guidance. We found the Council misrepresented Mr B’s property in the officer’s report which caused Mr B frustration and uncertainty. But we did not consider the fault affected the outcome of the planning application. The Council has agreed to apologise to Mr B and pay him £150.

The complaint

1. Mr B complains that Uttlesford District Council (the Council) in respect of planning permission for development near his property:
• failed to reconsult him, other neighbours and the highways team on significant amendments to the plans;
• failed to ensure the development complies with the Essex Design Guide in terms of separation distances;
• failed to correctly assess the affected windows (and loss of amenity) in Mr B’s property; and
• failed to ensure the Planning Committee considered the application;
2. The approved development will affect Mr B’s privacy and has caused him significant distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. 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 B 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

Essex Design Guide

7. This guidance says that where habitable rooms are located at the rear of neighbouring properties and the rear facades face each other, a minimum spacing of 25m between the rears of the properties is required. An intervening fence or other visual barrier of above eye-level height (as viewed from the potential vantage point) should be incorporated to maintain an adequate level of privacy
8. It also says that where new development backs on to the rear of existing housing, existing residents are entitled to a greater degree of privacy to their rear garden boundary. Where the rear faces of the new houses are approximately parallel to those of the existing homes, the rear of the new houses may not encroach any closer than 15m to an existing rear boundary.
9. But it also describes situations where houses can be closer together if one or both of the houses concerned is designed so as not to overlook the other. For example with an intervening fence or other visual barrier set above eye-level between facing ground-floor windows and no rear-facing, upper-storey bedroom or living room windows.  It suggests internal layouts could be arranged so that only bathrooms and landings provided with above eye-level windows are rear-facing. It also allows an above eye-level secondary window in a bedroom located on a privacy-sensitive elevation.

What happened

10. The Council received an application for development near Mr B’s property. It notified neighbours (including Mr B) and other interested parties including the parish council, local ward members and the highways team. The ward councillor had 35 days to call the matter to the Planning Committee, otherwise the Council would determine the application under its delegated powers.
11. Mr B submitted comments including photographs on the application. He said there was insufficient room for vehicles to turn in the new driveways, the proposed development was too close to his property, was not in accordance with Essex Design Guide and would overlook his house and garden.
12. The plans at this stage showed three first floor obscure-glazed windows on the rear elevation less than 15 metres from the boundary with Mr B’s property. He has one first floor window serving a bedroom facing the site but set back from his boundary. He also questioned why the application had not been considered by the planning committee.
13. The parish council objected on the grounds of over-development. The highways team did not object to the plans but provided some suggested conditions. The Council contacted the developer in April 2021 to request an extension to allow the case officer to visit the site.
14. Following the site visit the case officer requested some amendments to the plans including moving them further away from Mr B’s property, reducing the height and showing Mr B’s property on the plans. The developer submitted revised plans, increasing the separation distance between the rear elevations and Mr B’s property to over 11 metres and changing the first floor windows to high-level fixed windows serving a bathroom, an ensuite and a secondary window for a bedroom
15. The case officer decided that no re-consultation was necessary. Mr B and other residents found out about the amendments and submitted further objections on the same grounds. Mr B’s main concern was loss of privacy due to overlooking of his house (at ground and first floor level) and garden.
16. The case officer wrote a report assessing the application. It included the objections and comments received. It noted that the properties nearest to Mr B’s property were less than 15 metres away from the boundary (as advised in the Essex Design Guide). But it considered that this was acceptable because ‘there were no first floor windows on the elevation of the neighbouring dwelling facing the application site’ and the proposed first-floor windows were now high-level and fixed. The case officer recommended approval with conditions and a senior officer approved the recommendation. The Council granted planning permission.
17. Mr B complained to the Council in July 2021. The Council replied in September 2021. It explained that the decision whether to reconsult when amendments were submitted is a judgement for the case officer to make and is part of the process of working proactively with the applicant. It agreed the amendments were more than minor but did not think the officer’s decision to accept them as amendments, rather than requiring a new application, was unreasonable. But the Council agreed it would have been better as a matter of courtesy to have reconsulted with neighbours given the time that had elapsed since the original notification. The Council said that the highways team had considered the turning space in the initial consultation and the amendments did not change this aspect of the plans significantly.
18. The Council agreed that the delegated report was not correct in saying that there were no first floor windows in Mr B’s property: there were first floor windows on a different elevation and one window set further back on the elevation facing the site. The Council also noted a ground floor window on that same elevation which had not been mentioned in the report. The Council noted however that the proposed first floor windows were high-level and fixed, which mitigated the impact on Mr B’s amenity to an acceptable level. The Council also noted that the windows served bathrooms or were secondary for light purposes and so the potential overlooking was further reduced. It did however consider the officer had included the wrong mitigation reason in the report to justify a shorter separation distance.
19. The Council noted the potential for overlooking at ground floor level but said that overlooking between ground floor windows was rarely a reason for refusing an application and did not consider it was unacceptable in this case. It apologised for the fact this was not covered in the officer’s report.
20. Mr B remained dissatisfied and complained further. He said the changes should not have been accepted as amendments and that neighbours should have been reconsulted. He disagreed with the Council’s conclusion on overlooking and said the separation distance between the first floor windows should have been 25 metres.
21. Mr B complained to us.
22. In response to my enquiries the Council says:
• It would have been better to have notified neighbours of the revised scheme
• Although the Coucal considers it made a sound decision, it agrees the case officer’s justification in the delegated is confused and compounded by the incorrect reference to an absence of first floor windows in Mr B’s property.
• The Council delayed in responding to Mr B’s complaint due to staff leaving.
23. It considers an apology and time and trouble payment would be appropriate.

Analysis

Delegated decision

24. The Council considered the application in accordance with its delegated powers. It consulted with the local ward councillor, but they did not comment or ask for the application to be decided by the planning committee, so the application was decided by officers.

Consultation on the amended plans

25. I agree with the Council’s view that while its decision not to reconsult neighbours on the amended plans was justifiable, it would have been better to have done so. While this may have caused some frustration to Mr B, he and other residents found out about the amended plans and submitted their objections which were considered by the Council. So, I consider the injustice caused by the fault is minimal.
26. In respect of the highways issues, the amendments narrowed the access driveway but it was still in accordance with the Council’s minimum standards

Impact on Mr B’s amenity and the Essex Design Guide

27. The case officer visited the site and saw the relationship between the proposed development and Mr B’s property. As a result of this they requested amendments to the design to minimise the impact on Mr B’s amenity. The final plans show the new properties are over 11 metres from Mr B’s boundary and the windows have been changed to high-level fixed windows serving secondary rooms and which residents cannot look out of.
28. I agree the case officer’s report, misrepresented the windows in Mr B’s property and incorrectly considered the alleged absence of first floor windows mitigated the overlooking. This was fault. It caused Mr B frustration and distress as he did not understand why the decision had been made in contravention of the Essex Design Guide.
29. But I do not consider the outcome would have been different had the Council described Mr B’s property correctly. In the complaint response it explained that the test for considering whether overlooking affects a property to an unacceptable degree is based on the overlooking from the proposed development to the existing property and the case officer had taken steps to reduce the overlooking by securing an increase in the distance from the development to the boundary. While the Council was aware this was less than 15 metres, the additional changes to the windows themselves further reduced the impact to an acceptable level, because overlooking from those windows was physically very difficult and less likely due to the internal layout changes. These mitigations are allowed for in the Essex Design Guide.
30. Mr B believes that the distance between his first floor window and the proposed windows should be 25 metres in accordance with the Essex Design Guide. The guide is advisory guidance which I would expect the Council to follow unless it has good reasons to depart from it. In this case it has recognised the distances are less than the guidance advises, but it has explained how the amendments have reduced the potential overlooking, so the impact is acceptable. I am satisfied that the Council has properly considered Mr B’s amenity in approving the development.

Complaint handling

31. I agree that the Council took too long to respond to Mr B’s complaint and note that it has apologised for this fault.

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Agreed action

32. I welcome the Council’s offer to make a time and trouble payment to Mr B to recognise the injustice he was caused by the incorrect description of his property. So, I recommended that the Council (within one month of the date of my final decision) apologises to Mr B and pays him £150.
33. The Council has agreed to my recommendation.

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Final decision

34. I consider this is a proportionate way of putting right the injustice caused to Mr B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman