Summary: Mr G complained the Council did not take sufficient action to prevent him suffering a loss of privacy following the redevelopment of a neighbouring house. The Council acknowledged fault in its handling of a 2018 planning application and apologised for that. We considered this was a satisfactory remedy, given subsequent changes to the development which the Council considered had reduced its impact on Mr G.

The complaint

1. I have called the complainant ‘Mr G’. He complains the Council has not taken sufficient action to prevent him suffering a loss of privacy following the redevelopment of a neighbouring house. This is despite the Council acknowledging errors in how in dealt with a planning application which permitted the redevelopment.
2. Mr G says as a result he and his wife are unable to enjoy their garden with the same degree of privacy as before.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
6. 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

7. Before issuing this decision statement I took account of:

• Mr G’s written complaint to the Ombudsman and any information provided in support of that, including that gathered in a telephone call with him and subsequent emails;
• correspondence between Mr G and the Council which pre-dated our investigation of this complaint and information available via the Council’s planning portal;
• further information provided by the Council in response to written enquiries; this included photographs of the site taken in August 2022 by one of its officers.

8. I also gave Mr G and the Council an opportunity to comment on a draft version of this decision statement. I took account of any comments they made or further evidence provided before issuing this final decision.

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What I found

Background and key facts

9. Mr G’s house lies to the south a detached house, whose redevelopment is at the crux of the complaint. The street where both houses are located slopes from south to north. The houses face to the west and the gardens slope away from the houses to the east. The boundary between the two properties is marked by a standard garden fence of around 1.8 metres in height.
10. The house to the north of Mr G’s home has a patio area laid approximately in an ‘L’ shape that extends to both the south and east of the property. This has always been at a raised height from the boundary; before development being around 50 to 60cm above ground level. Mr G told me that before the neighbouring house was redeveloped the patio area to the south was little used. There was also planting on the boundary that screened the view of anyone using the patio from Mr G’s home.
11. In 2018 the Council approved plans for redevelopment. These were described at the time as comprising the “erection of a single storey extension to the rear of the dwelling”. There was no mention of any scheme to raise the patio. However, one of the plans submitted with the application showed the applicant planned on raising its height by around 20cm.
12. The Council did not require the applicant to change the description of the proposal. Nor, when it came to assessing the impact of the proposed application did its planning case officer comment in their report on the proposed increase in height.
13. By 2022 construction on the neighbouring house was underway. The planning applicant removed planting on the boundary. And Mr G noted the patio was noticeably higher than before. He complained to the Council that he had not been aware of this change. He said the increase in height would have a significant impact on his privacy.
14. In May 2022 the Council replied to Mr G’s complaint. It noted the planning applicant, in 2018, had not mentioned raising the patio in their description of works. However, the plans had shown a proposed increase in height of just over 20cm. The Council apologised this had not been picked up at the time. Also, that the planning case officer had not referred to the proposed increase in patio height when assessing whether to approve the 2018 planning application.
15. But the Council also noted the planning applicant had not in any event built the redeveloped patio in accord with the approved plans. It said it had encouraged them to make a second, retrospective planning application, seeking permission for the redeveloped patio ‘as built’, which was submitted.
16. In its assessment of the retrospective planning application the Council noted the patio as built was around 75mm higher than previously, at around 80cm above ground level. While to the east it also extended more than a metre further into the garden. But it also noted the patio was now set further apart from the boundary to Mr G’s house. The report said it was set back around a metre and a half from the boundary, whereas previously it was around 40cm from the boundary.
17. The planning officer’s report said that because the patio was now set further back from the boundary to Mr G’s home the increase in height was considered “acceptable". But the Council considered its greater depth had a “materially harmful” impact on Mr G’s home. This was because it created overlooking and resulted in a loss of privacy. The Council said this was contrary to local planning policies. Consequently, the Council refused the second planning application.
18. After making this decision the Council wrote to the planning applicant, saying it expected them to now reduce the depth of the patio to comply with the 2018 planning permission. And in July 2022 the Council gave a further response to Mr G’s complaint, which supported its earlier response. The Council again apologised for its oversights in administering the 2018 application. It said it now expected the planning applicant to make changes to the development to make it compliant with the 2018 application.
19. The planning applicant then chose to present a third planning application, which the Council informed Mr G about in a letter sent in July 2022. This proposed removing a five-metre strip of the patio (when measured north to south) where it extended to the east beyond the 2018 planning permission. It also proposed getting permission for the inset of the patio from the boundary of Mr G’s home. The Council considered this a better arrangement than that permitted by the initial plans approved in 2018 which required no inset from the boundary. Its planning officer’s report also said removing the five-metre strip of patio to the east would “overcome the harmful impact” on Mr G’s home. So, the Council approved this this application in September 2022.
20. Subsequently, I understand the planning applicant has carried out changes to the patio. The Council told me it would check these complied with the third planning application.
21. Mr G tried to escalate his complaint further through the third and final stage of the Council’s complaint procedure. However, the Council says that due to an administrative error it overlooked this. When this came to light it apologised to Mr G. But as by that time he was in contact with this office, the Council said it would not give a further response, to await instead the findings of this investigation.
22. In comments in reply to my enquiries the Council has said that if it had considered the 2018 application more thoroughly it would likely not have approved the proposed patio extension. This would be for reason of its extended depth into the garden, but not the minimal proposed increase in height which it considers would not have had a significant negative impact on privacy for Mr G’s home.

My findings

23. The Council has acknowledged fault in its handling of the 2018 planning application. It failed to identify that as part of their scheme, the planning applicant intended raising the level of the patio. Consequently, the developer was not asked to include this in their description of the scheme and the planning officer did not address any potential impact of raising the patio on Mr G’s home.
24. I consider this fault caused Mr G an injustice. Because he was not alerted to the raised patio, he did not make comments at the time to the Council which would have drawn attention to the potential impact of this increase in height. It was four years later therefore, before the error came to light. This in turn means Mr G’s complaint is not a ‘late complaint’ (see paragraph 3) notwithstanding the passage of time.
25. But I do not consider Mr G’s injustice extends to the Council having approved the increased height of the patio, which it would not otherwise have approved in 2018. I have reached this view after taking account of its officers’ analysis of the impact of the increased height of the patio on Mr G’s property.
26. I consider any increase in the height of the patio will impact on Mr G’s privacy, given the difference in land levels between the properties and the pre-existing patio being higher than the boundary land levels. But it is a judgement for the Council as to when any height increase becomes ‘unacceptable’. The Council believes it would not have found the original proposed increase unacceptable as it was minimal (around 20cm). I do not consider there is evidence that could lead me to challenge this view.
27. I have gone on to consider what happened when the developer built out their extension further to obtaining planning permission in 2018. It is evident the patio ‘as built’ differed from that inadvertently approved by the Council in 2018. When this happens, councils must consider using their enforcement powers, which can in some cases result in development being taken down.
28. However, enforcement action is always discretionary. Formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers (see National Planning Policy Framework July 2021, paragraph 59).
29. I find no fault therefore in the dialogue the Council entered into with the planning applicant once it became aware they had built the patio higher and extended it further into the garden than approved in 2018. By encouraging the second planning application, the Council had the opportunity to weigh up the impact of the increased size of the patio on Mr G’s home.
30. I find no fault in how the Council carried out that evaluation, set out in its planning officer’s report. The Council found the patio would have an unacceptable impact because of its increased depth into the garden, which created a greater view into Mr G’s garden. But it did not consider the height of the patio by itself to have an unacceptable impact. This is because the greater height was minimal (only 75mm) and accompanied by a setting back of the patio, with a more notable gap created between its retaining wall and the boundary fence.
31. I have noted there is some discrepancy in the papers about the extent to which the patio is now set back from the boundary. In planning officer reports it is referred to as a distance of 1.5metres. But in reply to my enquiries the Council has instead referred to a gap of ‘approximately’ one metre. In looking at the plans and photographs I do not find the distance is uniform as the ‘gap’ tapers. However, I did not consider the difference at its widest and narrowest point so significant that officers needed to consider that specifically when assessing the second and third planning applications.
32. I recognise Mr G may disagree with the judgement reached by the Council that the setting back of the patio is enough to mitigate the impact of its greater height. But as I explained above, I cannot uphold a complaint based on disagreement alone. I consider it was relevant for the Council to consider the setting back of the patio as well as the question of height. Because the further away from the boundary a person using the patio is seated or standing, so the less they will have views towards Mr G’s property.
33. I also note here that in part Mr G is aware of the greater height because the planning applicant chose to remove planting on the shared boundary and / or may choose to use the patio more than the previous occupier. These are not matters that are in the Council’s control. Even if the property had not been redeveloped the occupier could still have chosen to use that area of the patio more and removed planting. So, while these factors may exacerbate the impact of the raised height, they are not relevant matters the Council could consider in evaluating the impact of the patio.
34. It stands to reason from the above, that I also consider the Council’s handling of the third planning application to be without fault. I consider the Council has again acted in line with good administrative practice in ensuring the planning applicant reduces the length of the patio where it would afford the greatest views into Mr G’s garden. The Council told Mr G about the application and he could have commented on it. But even in the absence of him making comments, I cannot see the Council failed to take anything relevant into account when it considered it. As its officer’s report evaluated again the impact of the patio on Mr G’s property.
35. I appreciate that notwithstanding my findings Mr G and his wife find the patio more intrusive than what was there before. It has caused them distress. But we must separate any distress caused by the Council’s handling of planning matters as opposed to the actions of the planning applicant. I summarise that I consider the Council’s mishandling of this matter relates only to the 2018 planning application. I find that had the applicant applied then, for what they put forward in their third application last year, the Council would have approved it. In which case any injustice to Mr G is limited to that arising from any confusion created by the Council’s poor handling of the first application. I do not consider anything more than an apology is proportionate for that, which Mr G has received.
36. Finally, I also note there was an error also in the complaint handling in this case, which centred on the Council failing to consider Mr G’s complaint at the third stage of its complaint procedure. The Council has also apologised for this. I do not consider it need to more given that its error did not prevent nor delay Mr G having access to the Ombudsman’s service.

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Final decision

37. In summary I find fault by the Council causing an injustice to Mr G, but this has been satisfactorily remedied by the Council. Consequently, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman