Summary: Mr B says the Council failed to consult him on changes to a planning application and failed to consider how the development would impact on his amenity. The report for the planning application does not refer to the impact on Mr B’s amenity, which is fault. It is unlikely that affected the outcome of the planning application. 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:
• failed to consult him on changes to a planning application; and
• failed to properly consider how the development would impact on his amenity when granting planning permission.
2. Mr B says fault by the Council has caused him anxiety and distress and led to a loss of privacy in his living room and bedroom.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. 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.
7. 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

8. The Council has a supplementary planning document (SPD) which provides guidance on proposals for development. The SPD says where a habitable room window faces a blank wall or a non-habitable room window the minimum distance is 12 metres. Where the habitable room window faces another habitable room window the distance is 21 metres.
9. The SPD says if a development does not meet the dimensions an application can still be acceptable if:
• the particular constraints of the site do not allow the minimum distances to be achieved;
• the local area is characterised by lesser distances between properties;
• no significant harm to existing or future residential amenity would result;
• where there would be significant harm to residential amenity appropriate mitigation measures have been put in place to reduce the negative impact to an acceptable level.

What happened

10. The Council considered a planning application for a housing development on land next to Mr B's property. The original plans for the application proposed a detached dwelling closest to Mr B's property. The Council then considered amended plans. One of those amendments was to change the property closest to Mr B's property into a pair of semi-detached dwellings. The dwelling closest to Mr B's property is now closer to him than the original proposed detached dwelling. The Council consulted Mr B about the amended plans but Mr B says he did not receive the letter. The Council granted planning permission for the development. Mr B is concerned about that because the property closest to him is within 15 metres and the Council's guidance says that there should be a minimum separation distance between habitable room windows of 21 metres.

Analysis

11. Mr B says the Council failed to consult him on changes to the plans which changed the property nearest to him from a detached property to a semi detached property, closer to his boundary. The evidence I have seen satisfies me the Council wrote to Mr B to tell him about the amended plans. I appreciate Mr B says he did not receive the letter. However, the Council cannot be held responsible for any failure of Royal Mail to deliver letters. As the Council has a record of the letter being sent I have no grounds to criticise it.
12. Mr B says the Council failed to properly consider how the development would impact on his amenity. Mr B is particularly concerned about overlooking and loss of privacy as the property next to his boundary has been built very close to that boundary and at an angle. Mr B says as a result the windows on the new property overlook his living room and bedroom. Mr B is also concerned because the development in question is around 15 metres away from his property and the Councils SPD says there should be 21 metre distance between windows of habitable rooms.
13. I have some concerns with how the Council assessed the impact the development would have on Mr B’s property. I note the report for the planning application, when assessing the impact on residential amenity, refers to two other properties where the distance between the new property and the neighbouring property is less than the 21 metres quoted in the Council’s SPD. However, the report does not refer to Mr B’s property. I am concerned about that given Mr B’s property is closer to the neighbouring property than either of the other two properties mentioned in the report. Given there is no reference in the report to Mr B’s property or why the Council considered the impact to be acceptable given the properties are 15 metres apart I could not say in granting planning permission the Council had considered how the development would impact on Mr B. That is fault.
14. The Council has now provided an explanation about why it considers the impact the development will have on Mr B is acceptable in planning terms. As the Council points out, the SPD sets minimum distances but also makes clear there are circumstances in which those distances can be reduced. The Council says in this case it considered the 15 metres distance between the two properties acceptable on the basis the property Mr B is concerned about is at a slight angle to the boundary and therefore the windows are not directly facing each other.
15. I recognise Mr B disagrees with that assessment. Mr B has provided me with photographs showing the property from his downstairs windows as well as from the garden. I also have a copy of the approved plans showing the site layout. Having considered those photographs and plans I am satisfied the property Mr B is concerned about is set at a slight angle and therefore the two sets of windows do not directly face each other. As I said in paragraph 4, it is not the Ombudsman’s role to comment on the merits of a judgement reached by Council officers. As Council officers have decided that the separation distance between the two properties is acceptable in this instance due to the orientation of the new property, as that description reflects the situation on the ground and as the SPD allows for permission to be granted even if the minimum distances are not met, I cannot comment on the Council’s judgement here. So, while I consider the Council at fault for not setting out that judgement in the report for the planning application I could not say that affected the decision on the planning application.
16. I therefore consider Mr B’s injustice is limited to his frustration at feeling the Council did not consider the impact on his amenity when granting planning permission, as well as the time and trouble he has had to go to in pursuing his complaint. I consider a suitable outcome would be for the Council to apologise to Mr B and pay him £100. I also recommend the Council remind planning officers of the need to ensure reports for planning applications cover any assessment of how a development will impact on neighbouring properties when the proposed development does not conform either to Council policy or the SPD.
17. Mr B has also raised concerns about foul drainage pipes on his boundary and a flue which discharges close to his decking area. Having considered the planning application documents I have found no evidence to suggest the planning permission covered the location of the flue or the foul drainage pipes. I therefore do not consider the Council at fault here. If Mr B experiences any nuisance from either the foul drainage pipes or the flue he can report those matters to environmental health at the Council.

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Agreed action

18. Within one month of my decision the Council should:
• apologise to Mr B and pay him £100; and
• send a reminder to officers about the need to ensure reports for planning applications record the officer’s assessment of the impact a development will have on neighbouring properties where the development either breaches Council policy or the SPD.

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Final decision

19. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman