Summary: Mrs X complains her home is overlooked because the Council failed to properly consider a planning application. There was fault by the Council, but this did not cause injustice to Mrs X.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains on her own and her husband Mr X’s behalf that the Council failed to properly consider the impact of a development on their home. Mr X commented on the application when the Council consulted, that the side elevation windows would affect their privacy. However, Mrs X says the Council did not give this due consideration, and their home is now overlooked.

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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. 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

4. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning law

5. All decisions on planning applications must be made in accordance with a council’s development plan, unless material considerations indicate otherwise.
6. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.

What happened

7. In 2020 Mr and Mrs X’s neighbour made a planning application to build a bungalow of 1.5 storeys in a plot at the rear of Mr and Mrs X’s home. The front elevation faced the rear of Mr and Mrs X’s home. The Council consulted adjacent residents including Mr and Mrs X.
8. Mr X commented on the application online, selecting the “neither support nor object” option. He said he supported the application in principle, but it appeared the plans showed windows which would look directly into his home. He said he was planning to extend his conservatory and privacy would be an issue. Mr X also commented again on the same day selecting the “objection” option. He said, “Further to my previous objection, I can see by looking at the Front Elevation, there are two windows in the roof space that are Dutch Barn style as opposed to Velux. If they were Velux and sited in the flat roof, this would eliminate my concerns.”
9. The Council’s planning officer recommended approval of the plan. The officer’s report considered impact on amenity. He said:

“Due to the site location, it is considered that there would not be any substantive impacts on amenity resulting from the proposal in terms of loss of light, outlook or privacy. As such the proposal is considered to be in accordance with the NPPF [National Planning Policy Framework] in this respect.

Policy QOP2 of the emerging NLP [Northumberland Local Plan] seeks to ensure that development would not result in unacceptable adverse impacts on the amenity of neighbouring land uses. It is considered that the proposal is in general accordance with this, however little weight can currently be given to this policy.”

10. The officer’s report did not refer to any objections or comments by residents regarding the plan. The Council approved the plan.
11. When Mr X’s neighbour started building the approved development, Mr X contacted the Council about the windows in the roof. He said that he was concerned that the windows in the front elevation looked directly into his conservatory and kitchen. He said he had assumed windows were not allowed if they overlooked a neighbour’s property. He referred to technical guidance by the DCLG [Department for Communities and Local Government] about permitted development for householders. This said any upper-floor window located in a wall or roof slope forming a side elevation of the dwelling house shall be:

(i) obscure-glazed and

(ii) (ii) non-opening unless the parts of the window which can be opened are more than 1.7 metres above the floor of the room in which the window is installed.

12. Mr X said he had asked his neighbour if he could install obscure glazing. He asked the Council to comment.
13. The Council’s planning officer said he could visit. However, he said he could not ask the applicant to amend the approved plan. He explained the applicant must construct the dwelling to conform with the approved plans, which included the dormer windows. He said that when he assessed the application he considered the impact on amenity and looked at the separation distances between properties along with the proposed rooms which have dormer windows. He said that the closest dormer window was for the hall/landing area of the property. This would minimise the use of the window and reduce overlooking. The other dormer window had a greater separation distance and was for the bedroom. The planning officer did not consider this would result in any significant amenity impact.
14. Mr X replied he understood the planning officer’s comments. However, his own architects questioned the planning approval. He sent a photo of the development which was being built, showing the windows. He said that he had his own plans to extend the size of his conservatory. He said he still believed that the first floor windows in question should be fitted with obscure glass.
15. As Mr X did not receive a response he complained to the Council. He felt strongly the decision to grant the application without proper consideration was unfair. He said he had commented without raising it as an objection. But he said perhaps he should have raised an objection. He thought his request for obscure glass not unreasonable. He said that he had been considering installing a window to the bedroom. But the neighbour’s window would be about 10 meters away and would look into their bedroom. It could also affect his own plans for a sun room, which he had submitted to the Council.
16. The Council replied it had considered the scale and massing of the proposed dwelling and the impact that it would have on neighbours and the surrounding area. This was in line with the Council’s policies and procedures. The Council said it had reviewed the plans and noted that the two dormer windows would serve a landing and a hallway. It explained that as these spaces are considered to be non-habitable, it was not considered necessary or reasonable to request that obscure glazing was installed. It said the application had been assessed in the normal way and the officer found that the effects of the development on Mr X’s property would be limited and would not justify refusal. The Council considered Mr X’s objections had been properly taken into account and the planning officer had reached a reasoned and sound judgement.
17. Mr X complained further that the two dormer windows would overlook his property at close proximity. He said he had made the Council aware before approval of his concerns. He had also suggested Velux windows which lay flush in the roof would be a better option. But the Council did not contact them and approved the plan. Now he was overlooked by the dormer windows which had a detrimental impact on his property. He asked the Council how it had approved a 1.5 storey building which was not in keeping with the cottages in the surrounding conservation area. He had owned the land previously on which the new development was sited, and the Council had told him it would only accept a plan for a single storey dwelling. He also asked on what grounds the Council had permitted the dormer windows which overlooked his property at close proximity, despite the fact he had raised concerns.
18. The Council replied it considered the proposed dwelling would be in keeping with the surrounding vernacular, both in terms of scale and design. It said the planning officer had visited the site and his professional view was that the 1.5 storey would not be out of context or create a negative impact on the surrounding area. The officer’s report stated the proposal would reflect local character and distinctiveness.
19. The Council also replied regarding Mr X’s question regarding the previous advice it gave about the height of a potential development, and the proximity of the windows, despite his own objections. The Council said the planning officer would take account of all material planning considerations, such as privacy distances, amenity space, parking, design, scale, and materials. The officer then arrived at the view that enough distance would be maintained between the dormer window of the new dwelling and Mr X’s own property so as to not compromise existing privacy distances. The Council accepted there would be an element of overlooking. However, the key point of consideration was the degree of overlooking. The officer considered that the distance between the dormer window and Mr X’s own windows and amenity space was adequate in ensuring his privacy would not be compromised to an unreasonable degree. The officer’s report referred to this as it said that there would not be any substantive impacts on amenity resulting from the proposal in terms of loss of light, outlook or privacy.
20. Mrs X complained to the Ombudsman that the Council:
• did not respond to Mr X’s comments about privacy and his suggestions regarding Velux windows before it approved the plan.
• had not considered their genuine concerns regarding overlooking and invasion of privacy when the build started.
• did not respond regarding their suggestion about obscure glazing as a compromise.
21. Mrs X said that their living room and kitchen were now overlooked and their own plans to add a window to a bedroom and create a large sun room were affected.
22. In its response to my enquiries, the Council confirmed that it did consider Mr X's comments on the proposed plan as set out in paragraph 8 as objections. The Council provided a copy of an internal email between planning officers about discussing the objection. The Council says the officers discussed the plan and concluded the development would not have an unacceptable impact on Mr and Mrs X's property due to a separation distance of 16 metres between the dormer window which served a non habitable room and Mr and Mrs X's property.
23. The Council accepts its officer’s report did not specifically refer to potential overlooking of Mr and Mrs X's home. It has apologised that it did not make it clear in the report that it considered Mr X’s objections. However, it stated that the case officer assessed the impact on the amenity of Mr and Mrs X's home.
24. The Council proposed to remedy the failure to refer specifically to objections and concerns within reports. It said that it would provide further training to officers and authorising officers on report writing around the need to address concerns of objectors.

Analysis

25. The Council accepts that its report did not refer to the objections Mr X made. I consider this was fault. The Council should ensure that specific concerns which have been raised during the consultation with residents and other consultees are included and addressed within the report.
26. However, there is sufficient evidence that the Council’s officer considered the objections Mr X made, and properly considered the impact on his amenity. The Council considered the distance between the properties, the angle and the function of the rooms the windows served. But the officer did not conclude that the impact on Mr X’s amenity was such that it justified refusing the plan or that conditions should be attached to the approval, such as obscure glazing. Therefore, while I consider there was fault by the Council, I do not consider that this fault affected the outcome. The Council’s decision to approve would not have changed, nor would it have attached conditions.
27. The Council has apologised to Mr X for its failure to refer to his concerns. It has also put forward a proposal to remedy the fault. It has advised that it will provide training to officers. I consider this service improvement together with the apology for failing to refer specifically to the objections Mr X raised is a suitable remedy.

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Agreed action

28. I recommended as a service improvement that the Council provides evidence of the training it has proposed within two months of my final decision. It has agreed.

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Final decision

29. The Council was at fault, but this did not cause injustice to Mr and Mrs X. The Council has agreed a service improvement to prevent the faut affecting others. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman