Summary: Mrs B has complained about the way in which the Council considered a planning application for development near her property. We have not found fault with the actions of the Council.

The complaint

1. Mrs B complained that Isle of Wight Council (the Council) failed to properly assess the impact of new windows on their amenity when approving their neighbour’s planning application and did not inform them of amended plans submitted priori to approval. This caused Mrs B significant distress and frustration.

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The Ombudsman’s role and powers

2. 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)
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 considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council 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

Decision-making and material planning considerations

5. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
6. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
7. Government statements of planning policy are material considerations. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

8. Mrs B’s neighbours applied for planning permission to extend their property (Property X). The existing elevation facing Mrs B’s property, a listed building, had a door and a large ground floor window. The proposals were for a much higher, longer and closer elevation facing them and several new windows at first and ground floor level.
9. Mrs B objected to the application explaining the impact on their privacy and correcting the Council’s view that the windows affected actually served the main bedroom, a study, two bedrooms and a sitting room and was a principal elevation of their property. She also said the extension would be overbearing and dominant.
10. The planning officer considered the application under delegated powers and visited the site. They wrote a report detailing the proposals and giving their assessment of them. Mrs B’s objections were included in the officer report.
11. The report acknowledged Property X would be higher than the existing building and the overall mass would be significantly increased but concluded that it would result in a more balanced elevation, would not be visually dominant in the streetscene, and complied with Council’s design policy for new development.
12. The report acknowledged that Mrs B’s property is a listed building. It detailed the separation distance and noted there is a common boundary with fencing, a wall, some shrubs and a driveway in between. It did not consider this was private amenity space and noted Mrs B’s property had private amenity space to the rear which was unaffected by this proposal.
13. It said the extension was set back slightly further than an existing conservatory from the common boundary which would help mitigate the increase in height and mass of Property X. It did not consider Property X would be over-dominant as Mrs B’s property was a similar height.
14. In respect of the windows, it said that the new windows in Property X at first floor level, did not serve principal habitable rooms and were small in scale, so the officer did not consider there would be an unacceptable loss of privacy. It acknowledged that there may be some intervisibility between the two properties it would not be significant enough to warrant refusing permission.
15. It said the views of Property X from Mrs B’s property would be improved as it would appear more uniform and in keeping with the area. It noted that the key views for Mrs B were on the other side of her property towards the sea. It concluded that any harm caused by Property X to the setting of Mrs B’s property as a listed building would be less than substantial and mitigated by the relatively minor nature of the development and the use of appropriate materials.
16. The report recommended approval which the Council granted approval. Prior to granting permission the Council has received amended plans from the applicant. However these did not involve any changes to the elevation facing Mrs B’s property.
17. Mrs B complained to the Council about a difficulty in locating the Council’s policies relating to the design of extension, it did not consult her on the amended plans and failed to properly consider the impact of the proposals on her property.
18. The Council responded to the complaint saying:
• The amendments were a reduction to the scale of the proposals and it concluded there was no need to reconsult. It did not consider the amendments would overcome Mrs B’s objections and still took her objections into account in deciding the application. It placed the revised plans on its website.
• The report contained the case officer’s appraisal of the impact of the extension, namely the windows on Mrs B’s privacy, along with the size and scale of the development.
• The extension had been set back from the boundary by approximately a metre and a half which was not insignificant and it was therefore reasonable for the Council to conclude this mitigated the impact on her amenity.
• It was satisfied that the case officer had properly considered the impact on her amenity and the Council had no specific policies stipulate a particular separation distance between properties. The Council had taken into account the specific circumstances of the site including the distance, the use of the land adjacent to the boundary and the existing relationship.
19. It did not uphold her complaint.
20. Mrs B escalated her complaint to stage two of the Council’s complaints procedure. The Council responded but maintained the conclusion of the stage one response that there was no fault in the consideration of the application: the Council had properly considered the impact on Mrs B’s amenity but concluded it was not significant enough to warrant refusal. It acknowledged that other councils had policies stipulating separation distances, but the Council did not. This did not mean the Council did not take issues of privacy and overlooking seriously but it considered the individual circumstances of each case. It explained that it did not consider bedrooms or studies were main habitable rooms.
21. It acknowledged some issues with the links on the website, a typographical error in its stage one response and said it would ensure information on how to complaint/make comments was more clearly available on the website.
22. Mrs B complained to us.

Analysis

23. Our role in planning complaints is to consider the way in which the Council made its decision and if there was any fault in that process which affected the complainant adversely. It is not our role to reconsider the decision itself, including judgements about how much someone’s privacy is affected. As long as we are satisfied that the Council has considered all the evidence reasonably available and explained why it has reached its decision, we cannot intervene or substitute our own view.
24. I understand why Mrs B is aggrieved by the Council’s decision to allow development at Property X: she will have new first floor windows overlooking her property, at a short distance away. However, I am satisfied that the Council has considered the situation and all the available evidence, in reaching its view that the impact on her amenity is acceptable.
25. It has no policy stipulating a minimum separation distance between properties and it has explained why it considers the relationship between Property X and Mrs B’s property is acceptable: the land affected is not private amenity space, the boundary has a wall, fence and shrubs, the rear part of the extension will be set back by approximately 1.5 metres and there is already a view between the properties.
26. I accept that the Council did not acknowledge Mrs B’s point that the front part of the extension was only set back by about 20 cm which would make no difference to the impact on her property. However this was still a minor improvement and I do not think the failure to acknowledge this point affect the outcome of the application.
27. In respect of the windows, it has explained it does not consider bedrooms or studies are main habitable rooms. Mrs B may disagree with this view and other councils may also treat bedrooms as main habitable rooms in some circumstances, I am unable to say the Council should have reached a different decision. There is no legal definition of a principal habitable room, and it is open to councils to consider each case on its merits. It also means that one council may approach the question of habitable rooms in a different way. That does not mean that the Council’s view in this case is wrong.
28. The Council has explained why it did not need to consult on the amended plans and why it did not consider they would alter Mrs B’s objections. I find no fault here.

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Final decision

29. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.

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Investigator's decision on behalf of the Ombudsman