Summary: Mrs X complains that the Council failed to consider the impact of new windows on her amenity when granting planning permission for a neighbouring development. The Council is at fault as it overlooked the proposed new windows when considering the planning application. This caused a permanent loss of amenity to Mrs X. The Council has agreed to remedy this injustice by apologising to Mrs X and making a symbolic payment of £1300 to her to acknowledge her loss of amenity and the avoidable distress caused.

The complaint

1. Mrs X complains about how the Council considered a planning application at a neighbouring property. In particular, she complains that the Council overlooked the proposed windows in the side elevation of her neighbour’s property so failed to consider the impact on her amenity when granting planning permission. Mrs X considers that as a result her privacy has been significantly affected.

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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 significant injustice, or that could cause injustice to others in the future 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:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

5. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
6. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

7. Planning considerations do not include things like:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.
9. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
10. 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.
11. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

12. The following is a summary of the key events relevant to my consideration of the complaint. It does not include everything that happened.
13. Mrs X’s neighbour submitted a planning application for an extension. The plans for the application showed the removal of two first floor windows facing the rear of Mrs X’s property and garden. The plans also showed two new first floor windows in the side elevation of the existing building which faces Mrs X’s property.
14. Mrs X became aware of the new windows when the building work commenced. She made a complaint to the Council that it failed to consider the impact of the windows on her property. She also raised that the officer’s report on the application said there would be no windows on the existing elevation facing her property. Mrs X said the windows overlooked her kitchen, bathroom and garden.
15. The Council considered Mrs X’s complaint through its two stage complaints procedure. The Council acknowledged that officers had overlooked the proposed windows in the existing side elevation when considering the application. The Council apologised for the oversight. However, it noted Mrs X’s property was overlooked to some extent prior to the development. The Council said it would ask Mrs X’s neighbour to consider installing opaque glazing in the window overlooking Mrs X’s kitchen but it could not insist they did so.
16. Mrs X escalated her complaint to stage two of the complaints procedure. In its response, the Council explained it had, so far, been unable to negotiate the installation of obscure glazing with Mrs X’s neighbour. It acknowledged Mrs X had suffered some additional loss of privacy and offered a payment of £300 for distress and £300 to acknowledge the time and trouble caused to Mrs X.
17. Mrs X considers the windows have a significant impact on her privacy and she has to ensure blinds are drawn when moving from the bathroom to the rest of the house. Mrs X also says the windows overlook an area of garden which was previously private. Mrs X says she has tried screening to prevent the overlooking but this has an unacceptable impact on the light to her property. Mrs X considers the only permanent solution is to build a small extension to her property and remove the windows that are overlooked or lose light.
18. In response to my enquiries the Council has said:

• It should have negotiated with the applicant to seek the removal of the new window closest to Mrs X’s kitchen or imposed a condition requiring it to be obscure glazed. The Council would not have objected to the second window if it overlooked a non habitable space such as a stairway.
• The development site previously had two upper floor windows and a window in the rear elevation which overlooked Mrs X’s property. So there was a pre-existing degree of overlooking. But it accepts that the new windows in the existing side elevation are closer to Mrs X’s property and at a different angle to the previous windows.
• It considers Mrs X’s privacy has been affected by the new window closest to her kitchen. But it is at an angle which reduces the effects. It also considers the effects are not significantly worse than the previous windows in the development which overlooked Mrs X’s property.

19. The Council therefore considers the remedy offered of £300 for distress is sufficient.

Analysis

20. The Council has acknowledged that it overlooked the proposed two new windows in the side elevation facing Mrs X’s property when considering the planning application. It therefore failed to consider the impact on Mrs X’s amenity. This is fault. The question for me is what injustice this fault caused to Mrs X and whether the remedy offered by the Council is sufficient and proportionate.
21. The Council has acknowledged that it should have either negotiated the removal of the window closest to Mrs X’s property or imposed a condition for the window to be obscure glazed. So, on balance, I consider the planning application would not have been approved in its current form had the Council considered the impact of the new windows. As a result, Mrs X’s privacy has been affected by the window closest to her kitchen and she has suffered a permanent loss of amenity.
22. The Council has tried to negotiate with the applicant to install opaque glazing without success. Mrs X has also said her attempt at screening her property from the overlooking has caused a loss of light. So, I consider remedial action, such as installing screening, by the Council is unlikely to remedy Mrs X’s injustice. I have therefore considered if the payment of £300 offered by the Council is sufficient to remedy Mrs X’s injustice. I do not consider that it is sufficient.
23. Our guidance on remedies recommends a symbolic payment in the range of £1000 to £5000 to acknowledge a permanent loss of amenity. I consider the Council should make a symbolic payment of £1000 to Mrs X to acknowledge her permanent loss of amenity. In considering the level of payment I have to take into account that Mrs X’s property was always subject to a degree of overlooking by the previous windows which have now been removed. I therefore consider the payment at the lower end of the scale is sufficient and proportionate to remedy Mrs X’s injustice.
24. The Council has also offered a payment of £300 to acknowledge Mrs X’s time and trouble in making her complaint. I consider this is a sufficient and proportionate remedy for Mrs X’s avoidable distress as well as her time and trouble.

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Agreed action

25. That the Council:
1. Sends a further written apology to Mrs X for her permanent loss of amenity caused by its failure to consider the proposed new windows in the elevation facing her property. 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.
2. Makes a symbolic payment of £1000 to Mrs X to acknowledge her permanent loss of amenity. If the Council has already made the offered payment of £300 to Mrs X, it should pay an additional £700.
3. Makes a symbolic payment of £300 to Mrs X to acknowledge the distress and time and trouble caused by the faults identified.
4. By training or other means, shares the learning from this complaint with planning officers to ensure they consider all relevant aspects of a planning application and the material considerations raised by an application.
26. The Council should take the action at a) to c) within one month and the action at d) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

Fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman