Summary: the Council failed to consult Mrs B on a planning application and there is no evidence it properly considered the impact a development would have on her amenity. That denied Mrs B an opportunity to make representations which might have resulted in changes to the application although it would likely not have resulted in the Council refusing the application. An apology and payment to Mrs B is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, is represented by her son whom I shall refer to as Mr C. Mrs B complained the Council:
• failed to consult her on a planning application for a development next to her property; and
• failed to consider the impact an external staircase would have on her amenity.
2. Mrs B says failures by the Council means the external staircase will impact on her privacy in the entire rear of her property.

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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 C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B, Mr C 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 statement of community involvement says it will notify immediate neighbours that share a common boundary with a planning application site where the Council considers they may be affected by a proposal.
8. To the extent that development plan policies are material to an application for planning permission the decision must be taken in accordance with the development plan unless there are material considerations that indicate otherwise.
9. A material planning consideration is one which is relevant to making the planning decision in question. (eg whether to grant or refuse an application for planning permission). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
10. The scope of what can constitute a material consideration is very wide and so the courts often do not indicate what cannot be a material consideration. However, in general they have taken the view that planning is concerned with land use in the public interest, so the protection of purely private interests such as the impact of a development on the value of a neighbouring property or loss of private rights to light could not be material considerations.
11. The Council’s policy CP57 says a high standard of design is required for new developments. It says applications must be accompanied by appropriate information to demonstrate how the proposal will make a positive contribution in various areas including:
• having regard to the compatibility of adjoining buildings and uses, the impact on the amenities of existing occupants and ensuring appropriate levels of amenity are achievable within the development itself, including the consideration of privacy, overshadowing, vibration and pollution.

What happened

12. During one of the COVID-19 lockdowns the Council received a planning application for a development on land next to Mrs B’s property. The proposal included an external staircase next to Mrs B’s rear boundary. The Council consulted some neighbours but did not consult Mrs B. As a result of some of the objections received the applicant made amendments to the scheme. That did not affect the staircase. The Council assessed the application based on the plans and photographs provided by the applicant and granted planning permission.

Analysis

13. The Council accepts it failed to consult Mrs B on a planning application for a development next to her property. The Council has apologised for that. Failing to consult Mrs B, as the Council did with other affected neighbours, is fault.
14. Mrs B says because the Council failed to consult her she did not have an opportunity to seek changes to the proposal, particularly for an external staircase which she believes creates overlooking of her property. Mrs B also says because the Council’s officer did not visit the site the impact the external staircase would have on her amenity was not considered.
15. At the time the Council considered the planning application the country was subject to a COVID-19 lockdown. As a result where it was possible to do so planning officers made decisions on planning applications based on the plans and photographs provided rather than by carrying out site visits. That, in itself, is not fault. In this case the photographs provided by the applicant did not show Mrs B’s property or the relationship between Mrs B’s property and the site. So, from the photographs alone, the case officer could not have assessed how the external staircase would impact on Mrs B’s amenity. However, as well as the photographs the case officer also had a site location drawing and block plans which showed the relationship between the development site and Mrs B’s property. That should have been sufficient to enable the case officer to take a view about the impact the external staircase would have on Mrs B’s amenity given case officers are experienced in assessing plans.
16. In this case though I am concerned the report for the planning application makes no reference to the external staircase in assessing the impact on the amenity of neighbouring residents. Nor does the report for the planning application refer to Mrs B’s property. I am therefore not satisfied when granting planning permission for the development the Council considered how the external staircase would impact on Mrs B’s amenity. That is fault.
17. I now have to consider what injustice this caused Mrs B. Clearly Mrs B has suffered distress and a lost opportunity to comment given the Council did not tell her about the application. I appreciate Mrs B feels the development will cause unacceptable overlooking of her property. However, when assessing the impact of a development on the privacy to neighbouring properties the Council will normally be considering overlooking between habitable rooms. In this case there are no windows on the elevation facing Mrs B’s property and there is therefore no direct overlooking between habitable rooms. There is also some distance between Mrs B’s property and the proposed staircase as Mrs B’s rear garden lies in between her house and the boundary.
18. I appreciate though the external staircase will create a perception of overlooking if Mrs B sees somebody accessing the upstairs of the property using those stairs. I agree with the Council though this is likely to be a fleeting view and would only result in overlooking if somebody spent a large amount of time with their back to the first floor door looking across to Mrs B’s property. That would be deliberate rather than due to the unavoidable result of the relationship between the two buildings. I therefore do not consider it likely if Mrs B had an opportunity to object the Council would have refused the application or required the applicant to move the staircase elsewhere.
19. Given the applicant had agreed changes to the proposal as a result of other neighbour and Town Council representations though I consider Mrs B is left with some uncertainty about whether her representations might have resulted in the applicant making changes to reduce any impact on her such as by providing screening. To remedy Mrs B’s distress, lost opportunity to comment and uncertainty about whether she could have secured changes to reduce the impact of the proposal on her I recommended the Council pay her £300. The Council has agreed to my recommendation.

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Agreed action

20. Within one month of my decision the Council should apologise to Mrs B and pay her £300. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman