Summary: Mrs X and Mr Y complain the Council did not consult them about a development opposite their home. We found the Council was at fault. It has agreed a remedy.

The complaint

1. The complainants, whom I shall refer to as Mrs X and Mr Y, complain that the Council failed to properly consider the impact on their privacy of a neighbour’s plan to build a roof extension. As a result, they say their sons’ bedrooms are overlooked.
2. Mrs X and Mr Y say the Council should have consulted them about changes to the plan, because of the potential impact on them, but failed to do so.
3. Mrs X and Mr Y also complain the Council removed original plans regarding the development from its website and this caused confusion.

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The Ombudsman’s role and powers

4. 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)
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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What I have and have not investigated

6. I have investigated the complaints regarding the Council’s consideration of the impact of the extension on Mrs X’s and Mr Y’s privacy and the Council’s failure to consult them regarding the revised plan.
7. I have not investigated the complaint regarding the removal of plans from the Council’s website. This is because the plans were quickly reinstated on the website, and I do not consider this caused injustice to the complainants.

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How I considered this complaint

8. I have discussed the complaint with Mrs X and Mr Y considered the complaint and information they provided. I have made enquiries of the Council and considered the comments and documents it provided. Mrs X and Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning law

9. All decisions on planning applications must be made in accordance with a council’s development plan, unless material considerations indicate otherwise.
10. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.

What happened

11. Mrs X and Mr Y’s neighbour on the opposite side of their road made a planning application for a roof extension to the front and rear of their home. The neighbour’s home faces side on to the road and so Mrs X and Mr Y home faces the side elevation.
12. The first plans did not include a window in the side elevation facing Mrs X and Mr Y’s home. There was a gable end window and one velux rooflight window in the front elevation facing forwards, but these did not overlook Mrs X and Mr Y’s home. The Council consulted residents about the plans. It did not receive any comments from residents.
13. The Council later received revised plans from the applicant. These plans showed a window in the side facing slope of the roof of the new front extension.
14. The Council did not consult residents regarding the revised plans. It says that it did not consider it was necessary to do so. The Council has referred to the Department of Levelling Up, Housing and Communities (DLUHC) guidance “Consultation and pre-decision matters.” This states:

Where an application has been amended it is up to the local planning authority to decide whether further publicity and consultation is necessary in the interests of fairness. In deciding what further steps may be required local planning authorities should consider whether, without re-consultation, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended.

15. The Council approved the planning application in 2021. The decision notice setting out the officer’s assessment refers to changes to the windows in the new plan, but does not specifically refer to the new velux window in the side elevation. The notice stated the Council considered the extension did not result in a significant impact on the visual and private amenity of neighbouring occupiers. The Council did not attach any conditions about windows such as obscure glazing or that they should be non opening to the approval.
16. In 2022 Mrs X and Mr Y wrote to the Council about the extension which was almost completed. They said the side window was a new feature which was different to the original plans. They said there had been a velux window elsewhere which did not affect them, but it had been moved and was now overlooking their home, in particular their two front bedrooms. They said the Council should have consulted them about this change, and if it had, they would have strongly objected.
17. The Council replied that the original plan had been revised. In the Council’s view it was improved due to a reduction in the height and bulk of the development. The Council noted the changes included a new velux window in the side elevation facing Mrs X and Mr Y’s home. However, it considered the window would not lead to a serious loss of amenities by way of overlooking or loss of privacy. This was because it was a secondary window to the room. It was also a skylight angled in the roof plane, and set a reasonable distance from neighbouring properties. The Council considered the addition of the window did not warrant refusal of the planning application.
18. Mrs X and Mr Y said that the Council should have consulted them about the change. They asked what the height of the window was.
19. The Council replied that it believed the window height was 1.2m. It said it would arrange a visit to inspect the completed works to check whether the development was completed in line with the approved plans.
20. The Council’s planning enforcement officer visited the development and considered that it had been built in accordance with the approved plans. It measured the height of the window from the floor as 1.50m. The Council asked the developer whether he would agree to installing obscure glazing. The developer agreed and applied a frosted effect film to the window.
21. In 2023 the Council responded to Mrs X and Mr Y’s complaint. Regarding their point about lack of consultation, it said that the revised plans reduced the overall scale and impact of the proposed works, and so it was not normal practice to reconsult neighbouring occupies in such cases. It continued that it noted the addition of a skylight, in addition to the one that was originally proposed to the front elevation. It said that “in hindsight re-consultation with neighbouring occupiers could have been carried out to inform you and your neighbours of the changes proposed.” However, it also said that the original plans also included rooflights and it did not receive any objections from neighbours regarding the proposed plan. Therefore, the Council did not consider it was necessary to reconsult. The Council said officers considered the impact on neighbours, taking account of the level of separation between the development and Mrs X and Mr Y’s property. Officers considered the separation distance was reasonable and would not result in a significant loss of amenities to justify a refusal.
22. Mrs X and Mr Y complained further the planning process was flawed in this case. The window overlooked their front bedrooms and was a clear invasion of their privacy. In their view it was not a reasonable distance from neighbouring properties. The road between the properties was narrow. They felt this was a significant change in the plans and neighbours should have been consulted. They asked why the developer had agreed to obscure the glass. In their view this suggested a compromise. They said the film could be removed at any point. They requested the Council withdraw its consent for the plan.
23. The Council replied repeating that in hindsight it could have reconsulted neighbours. However, as it did not receive any comments from the original consultation, and it did not consider the amendments it sought to improve the design were significantly different to the original scheme. Therefore, it concluded that reconsultation was not necessary. If it had received objections or comments from neighbours on the original scheme or the scheme was changing significantly, it said it would have reconsulted.
24. The Council said that with regard to their street being narrow, officers were familiar with this and had visited the area many times. The Council said it had considered loss of privacy and overlooking. It said it had sought the agreement of the developer to apply the film to obscure views to help resolve the matter.
25. Mrs X and Mr Y complained at the final stage of the Council’s procedure. They said the Council had not answered their questions or addressed their concerns about the impact of the window on their children’s wellbeing. They said that in effect, because the Council had not received any comments on the first plan, that the neighbour could have revised his plans in any way he liked. In their view the addition of the window was a significant change which had a serious impact on their privacy.
26. The Council replied that it considered it had consulted in accordance with legislation (The Town and Country Planning (Development Management Procedure) (England) Order 2015) and in line with the Council’s Statement of Community Involvement (SCI) The SCI sets out how the Council will involve interested parties in matters related to development in their area. The Council referred to DLUHC’s guidance as set out in paragraph 14 above. It said that it had clearly consulted in line with this. The Council also said that its powers following the planning decision were restricted. It had powers to make a revocation order but this was a power that was rarely used and for considerable issues.
27. In its response to my enquiries the Council said that the distance between the properties was 14m. It also said that in reaching the Council’s decision officers took account of an existing secondary side window at first floor level which faced Mrs X and Mr Y’s property and which was closer than the proposed rooflight.

Analysis

28. The Council did not reconsult neighbours regarding the new window. In its complaint response to Mrs X and Mr Y it said it did not consider the amendments it sought to improve the design were significantly different to the original scheme. However, I have concerns about this assessment because the window was of a different orientation facing the street and opposite properties on the street rather than more distant views facing forwards. The Council has referred to the original plan having windows in the front elevation which overlooked Mrs X and Mr Y’s home. But it does not appear the windows in the original plan overlooked their home. The Council also said that there was an existing side window. But this window is fixed and obscure glazed.
29. The Council has referred to the DLUHC guidance about reconsulting. In my view the Council has not properly considered this because it appears to have focussed on whether the revisions were significantly different rather than on whether consultation was necessary in the interests of fairness and whether, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended. For the reasons I have set out in paragraph 28, I consider the Council should have noted the new window may have an impact which neighbours would have wanted to comment on. I find fault by the Council here. This caused injustice to Mrs X and Mr Y because they did not have an opportunity to comment and have their comments considered.
30. When a council considers a planning application it should consider the impact it will have on neighbouring properties. But it is not the case that councils must refuse planning permission for development that will have an adverse impact on other properties. Councils must assess the degree of impact and decide if it is so great that it should refuse the application. This is a judgement the council makes taking into account all the relevant information.
31. However, I note that in its assessment in the decision notice the Council did not refer to the new side window specifically or address what impact this window may have on neighbours. It refers to changes in fenestration instead and states that this did not have an impact on the visual and private amenity of neighbouring occupiers. This could refer to other windows. In my view this leaves some doubt about whether the potential for overlooking was considered and how it was considered. The Council has now provided further information about the separation distance between the houses and the height of the window. I consider this is something it could have included in its assessment and decision note. I have found fault here. I consider this caused injustice to Mrs X and Mr Y because it caused uncertainty and frustration about how the Council made its decision.
32. I note the Council has taken steps to mitigate some of the impact Mrs X and Mr Y claimed by the owner agreeing to apply obscure film. I do not consider this indicates the Council considers it was at fault.
33. I have identified faults in the Council’s procedure, but I do not consider I can conclude that if it were not for these faults it would have changed the outcome.

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Agreed action

34. I recommended that within one month of my decision the Council
• apologises to Mrs X and Mr Y for uncertainty and frustration caused.
• pays Mrs X £150 for the frustration caused by its failure to show it properly considered whether it should reconsult.
• Pays Mrs X £150 for the uncertainty caused by the failings identified.
35. Within three months of my decision the Council should also:
• review its procedures to ensure it provides evidence it has properly considered whether to reconsult on amended plans including considering the issue of fairness to those who may wish to make additional comments on an amended application.
36. The Council should provide us with evidence it has complied with the above actions.
37. The Council has agreed the proposed remedy.

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Final decision

38. I found fault by the Council causing injustice to Mrs X and Mr Y. It has agreed a remedy. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman