Summary: the Council failed to consider the impact ground floor windows would have on Mr B’s amenity and failed to consider its planning guidance when it granted planning permission for a development. An apology, payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council, in granting planning permission for a development next to his property, failed to consider the impact it would have on his amenity or apply its planning guidance on side windows.
2. Mr B says as a result his patio area is overlooked and he can hear conversations from inside his neighbour’s property. Mr B has also had to pay to erect a fence on the boundary to screen the windows.

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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. 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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation 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

What should have happened

7. The Council’s local plan includes policy DM14 which covers the general development criteria for development proposals. This says development will, as appropriate, accord with adopted supplementary planning documents and guidance.
8. The Council’s supplementary design guidance (the Council’s guidance) says side windows in extensions should be avoided to reduce overlooking and mutual loss of privacy, although high level windows (with an internal sill height of at least 1.65 metres) may be acceptable. Obscured glazing to toilet, bathroom and landing windows would overcome the problem. Windows to other ground floor rooms may be accepted if at least 2.4 metres from the side boundary and a screen fence or wall may be required to protect neighbours’ privacy.

What happened

9. Mr B lives adjacent to a neighbouring property which applied for planning permission for an extension. Mr B did not put in any objections to the planning application although he spoke to the planning officer when she carried out a site visit. Mr B is concerned the Council granted planning permission for a development which includes two windows at ground floor level on the side elevation next to his property and one window at first floor level. Mr B is concerned this creates overlooking of his patio area and leads to noise transmission when the windows are opened.

Analysis

10. Mr B says the Council, in granting planning permission for a development next to his property, failed to consider the impact windows on the side boundary would have on his amenity. Mr B is particularly concerned about three windows on the side elevation facing his property which he says overlook his patio. Mr B says all three windows breach the Council’s planning guidance on windows in side extensions as the development is 2.1 metres from the boundary and therefore should not have been allowed.
11. I am satisfied the report for the application referred to the first floor window on the side extension and the distance the development would be from the side boundary. The report recorded the officer’s view the first floor window was acceptable as it would serve an ensuite bathroom. Given the content of the Council’s guidance, which I refer to in paragraph 8, I am satisfied the Council properly considered the window at first floor level when granting planning permission. I therefore do not criticise the Council for deciding the window at first floor level was acceptable in terms of its impact on Mr B’s amenity.
12. I am concerned though about how the Council assessed the impact the ground floor windows would have on Mr B’s amenity. The report for the planning application does not mention the windows at ground floor level. In addition, although the report refers to the Council’s guidance it does not refer to the section relating to windows on side elevations. I am therefore not satisfied either that the Council considered the impact those windows would have on Mr B’s amenity or that it considered its own supplementary planning guidance when it granted planning permission. That is fault.
13. The Council has now provided its reasoning for why it considers the ground floor windows acceptable, despite the fact the distance between the side extension and the boundary with Mr B’s property is less than that set out in the Council’s guidance. The Council refers to the fence erected between the properties which restricts overlooking, that there is no window to window overlooking between the two properties, that the windows in question provide a secondary source of light to a non-habitable room and that the windows are relatively small. The Council says because of those matters it does not consider there would have been a material impact on Mr B’s amenity to have warranted a different decision. I appreciate the Council has now provided a detailed explanation of its reasoning. However, none of that reasoning is recorded in the report. Given the ground floor windows breach the Council’s guidance I refer to in paragraph 8, which is also referenced in policy DM14, I consider the failure to discuss the impact the ground floor windows would have on Mr B’s amenity in the report is fault. In the absence of any discussion of those ground floor windows in the report I cannot say the Council considered how those windows would impact on Mr B’s amenity when it granted planning permission for the development.
14. I now have to consider what injustice was caused to Mr B as a result of this fault. As part of its reasoning for saying it would not have reached a different decision on the planning application the Council has referred to the existence of the boundary fence. The Council has also provided me with a copy of photographs taken from the neighbouring property showing the view from the ground floor windows. It is clear one of those windows only has a view of the blank wall which is the side of Mr B’s house. The other window has a view of the fence. I appreciate from Mr B’s side of the fence it is likely he is able to see the top of the window at ground floor level which might create a concern about whether the neighbouring property can overlook his patio. However, it is clear from the photograph that this is not the case. However, it is also clear Mr B paid for the erection of the boundary fence to obscure the ground floor windows. Had Mr B not erected that fence there would be direct overlooking of Mr B’s patio as a result of the approved development. The Council accepts the fence was not in place when it granted planning permission and there is no evidence Mr B’s neighbour proposed to erect a fence on the boundary. I therefore do not consider the existence of that fence is a matter the Council could have taken into account when it granted planning permission.
15. The Council has pointed out Mr B did not object to the application formally and it says he did not mention the ground floor windows when discussing the application with the planning officer. Mr B disputes that he did not discuss the ground floor windows when the planning officer visited the site. While I cannot take a view on what was discussed, the fact Mr B did not object to the application is not relevant. Irrespective of whether neighbouring properties object to an application the Council has a responsibility to consider how the application will affect neighbouring properties. As I have set out, I am satisfied the Council properly considered how the first floor bathroom window would impact on Mr B’s amenity. However, there is no evidence the Council considered how the ground floor windows would impact on him.
16. I consider Mr B has suffered a significant injustice as a result of the Council’s failure to consider the impact the ground floor windows would have on his amenity given those windows directly overlook Mr B’s patio without his decision to put up a fence and are closer than the Council’s guidance says is acceptable. I consider Mr B has had to put that fence up as a result of fault by the Council in failing to consider the impact the ground floor windows have on his amenity. I could not say, on the balance of probability, the Council would have refused the application had it properly considered the impact the development would have on Mr B. However, I consider it likely if the Council had properly considered the impact it would at least have required the applicant to provide screening on the boundary and may have required window treatments to prevent the windows being opened or to provide obscure glazing given they are secondary windows.
17. As Mr B has paid for a fence to be erected to screen the windows I consider he has incurred financial expense as a result of the Council’s failure to properly consider the impact the ground floor windows will have on his amenity. I also consider he is left with some uncertainty about whether the window arrangement at ground floor level could have been altered if the Council had properly considered the impact. I therefore recommended the Council apologise to Mr B, pay him an amount to reflect the cost he incurred for erecting the fence and pay him an additional £100 to reflect his time and trouble pursuing the complaint. I also recommended the Council remind planning officers of the need to ensure the reports for planning applications properly record officer views where a development breaches Council policies or supplementary planning guidance. The Council has agreed to my recommendations.

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Agreed action

18. Within one month of my decision the Council should:
• apologise to Mr B for failing to consider the impact the ground floor windows would have on his amenity when it granted planning permission;
• obtain evidence, such as quotations if receipts are not available, from Mr B to support the amount he paid for the fence to be erected on the boundary and pay him an amount equivalent to that cost;
• pay Mr B £100 to reflect his time and trouble in pursuing the complaint; and
• send a reminder to officers about the need to ensure reports for planning applications address all the material planning considerations and, where a development breaches Council policies or guidelines, make sure officers are aware of the need to address those issues in the report.

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Final decision

19. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman