Summary: Mr B complained the Council failed to give proper attention to the impact of rooflight windows when it approved planning permission for a neighbouring development. We upheld the complaint. We considered that as a result the Council approved one of the windows marginally lower than would otherwise have been the case. This caused Mr B and his family injustice, in the form of some avoidable distress. The Council agreed it would apologise for this.

The complaint

1. I have called the complainant ‘Mr B’. He complains that when the Council approved planning permission for changes to a neighbouring property, it failed to give proper attention to the impact of approving two rooflight windows. Mr B says these afford clear views into two bedrooms in his home, and so have an unacceptable impact on his privacy.

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The Ombudsman’s role and powers

2. 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)
3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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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How I considered this complaint

6. Before issuing this decision statement I considered:

• Mr B’s written complaint and any supporting information he provided; this included photographs of the development from his house;
• correspondence exchanged between Mr B and the Council about the complaint, pre-dating our investigation;
• relevant information available online from the Council’s website including details of the planning application at the crux of the complaint;
• further information provided to me by the Council in reply to my enquiries including photographs taken from the development towards Mr B’s house;
• relevant guidance published by this office including our focus report: “Not in my back yard: local people and the planning process” (2023 edition) and our published guidance on remedies.

7. I gave Mr B and the Council an opportunity to comment on a draft version of this decision statement. I took account of any comments they made in response before issuing this final version of the decision statement.

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What I found

Chronology

8. Mr B lives on a residential street in the Council’s area, that slopes downhill approximately from north to south. In April 2021 the Council received plans proposing a series of changes to a detached bungalow to the south of Mr B’s home. The proposals included changes to the roof space of the property. In the existing roof-space facing north was a single roof-light window facing towards Mr B’s house. In front of this window was an external chimney stack. The development proposed replacing that window with a new rooflight of similar size. It also proposed installing a second, larger rooflight to serve a bedroom facing towards Mr B’s house.
9. Mr B’s house has two windows at first floor level that face south towards the development. One serves a bedroom used by Mr B and his wife and I will call that ‘bedroom 1’. The other serves a bedroom used by one of his children and I will call that ‘bedroom 2’. The window serving bedroom 1 is around 4.75metres from the facing roof of the house to the south. While bedroom 2 is around 9.5metres from the same.
10. Mr B made objections to the development. These focused on the overall impact of the various changes to the house. He did not raise any specific concerns about the rooflights.
11. In May 2021 the Council approved the planning application. A planning officer’s report explained its decision. The report listed relevant local planning policies including ‘HB8’, which refers to domestic extensions. It says the Council’s policy is to approve extensions that “protect the residential amenity of the occupants of neighbouring properties and ensure avoidance of any unacceptable overlooking and inter-looking".
12. The report included a section on the impact of the proposals on the ‘amenities of neighbouring properties’. It noted the separation distance between the two houses of 4.71metres. It said there was a “large gable window” facing the development from Mr B’s home. It said the Council took account of the separation distance and the “orientation of the window in relation to the neighbour”. It considered as a result, the proposed rooflights did not raise any concerns about a “loss of privacy” to Mr B’s home.
13. By July 2022 the development was under construction. Mr B contacted the Council to report a possible breach of planning control. He told the Council the chimney stack, shown as retained on the approved plans, had been removed. He also had concerns about the height at which the developer had fitted the rooflights because he could clearly see people inside the neighbouring house through those windows. He referred to guidance on permitted development (that for which a homeowner does not need planning permission), which allows for rooflights where these are 1.7metres above the floor level and obscure glazed.
14. A Council Enforcement Officer picked up Mr B’s report. They found the larger rooflight (serving the bedroom) was in the same position as on the approved plans but the smaller rooflight was not. They contacted the developer and asked them to present a minor material amendment planning application. This would seek permission retrospectively for the removal of the chimney stack and for placing the smaller of the two rooflights in a slightly different position. The developer agreed to this proposal. Consequently, the officer did not consider it necessary to visit the site at that time.
15. Mr B presented objections to this application also, this time highlighting concerns about overlooking and a loss of privacy caused by the rooflights. The Council prepared another report, which approved the minor changes to the application. The report said the new application did not lead to any new considerations about the impact of the development on neighbours, finding the Council had previously considered these when it approved the development.
16. At the end of October 2022 Mr B made a complaint. He said that he could not have known the impact of the rooflights before development began. He said the windows were, in effect, side windows and not ‘rooflights’ because of the height they were at.
17. The Council replied to Mr B in December 2022. This followed Mr B sending it an email in November advising he had not received a reply in the promised time of 20 working days. A senior planning manager replied for the Council and said: “in my view it would have been appropriate to impose a condition requiring the cill height of the bedroom roof light to be a minimum of 1.7m above the finished floor level and I apologise this was not carried out”. However, the manager said a plan presented by the developer for a Building Regulation matter showed the cill height was at 1.7metres. The letter concluded the Council considered the development was proceeding in accord with the approved plans. But apologised again the Council did not impose a planning condition “to provide a degree of certainty”.
18. Mr B stepped up his complaint to stage two of the Council’s corporate complaint procedure in January 2023 and it replied in mid-April 2023. This followed the Council advising Mr B there would be a delay until mid-March in it replying to his complaint and Mr B sending an email to chase a response when he did not receive this. This response said the cill heights of the rooflights were at 1.5metres. It said the Council had considered comments made by Mr B in response to both planning applications.

My investigation

19. During this investigation we asked the Council if it gave its officers any supplementary advice on what it considered was “unacceptable overlooking”. It told us it did not as it considered this a matter for their judgement, taking account of the proposed development and its relation to any adjacent properties.
20. We asked the Council if it knew the cill height of the rooflights above floor level, in the development. It told us its enforcement officer had visited and measured this at just over 1.5metres.
21. During our investigation, the Council repeated that ‘with hindsight’ it should have imposed a planning condition requiring the developer to ensure cill heights on the development were not less than 1.7metres above floor level. But it said this did not mean the development as proposed, was unacceptable. This was because it did not consider the development’s impact on Mr B’s home great enough that it could have refused the rooflights in their current position. It pointed out the smaller rooflight served a ‘non-habitable room’ (a bathroom) and so any impact from this would be minimal. It also said the window serving bedroom 2 of Mr B’s house was visible from other vantage points. So, the rooflights serving the development would not lead to a significant loss of privacy to Mr B.
22. The Council said it was unusual for it to delay so long in answering complaints. It explained there were ‘resource and capacity’ issues at the time Mr B complained.
23. The Council provided me with photographs showing views of Mr B’s house from the development. Mr B also provided me photographs from his house showing the development. I noted that in Mr B’s photographs people using the room served by the larger of the two rooflights were clearly visible.

My findings

The Ombudsman’s jurisdiction

24. The term jurisdiction refers to our legal powers to investigate a complaint. The first matter I have considered in this case, is whether we have scope to investigate a complaint about the Council’s approval of planning permission in May 2021, given the passage of time. Because when Mr B made us aware of his concern about this, more than 12 months had elapsed since the Council gave its permission. So, I need to consider is whether this makes Mr B’s complaint a ‘late complaint’.
25. I am satisfied it is not. I consider the key date in this case is July 2022. Because it was around then the developer installed the rooflight windows. So, it was only at this point Mr B realised that people using the rooms served by those windows were clearly visible from his home (and presumably he was clearly visible to them). This then led Mr B to question if the Council had properly approved the planning permission, allowing the windows in that position. I am satisfied there was nothing from the plans presented with the 2021 application that made it obvious to Mr B the internal height of the windows within the roof space rooms. So, there are good reasons why Mr B did not make any representations or complain sooner. Therefore, I do not consider the complaint late.

Was the Council at fault?

26. The Council was under a duty to consider the impact of the rooflights on Mr B’s property taking account of advice in its local plan policy HB8. That policy says officers must consider the impact of any overlooking of neighbours caused by new development. But it leaves it to officer’s judgement to decide at what point any overlooking or loss of privacy becomes ‘unacceptable’. This stands to reason as in built-up residential areas a degree of overlooking between houses is usually a fact of life.
27. I explained in paragraph 3 that it is not our role to question such judgement where we find the Council has reached it properly. To decide that, we consider if there is evidence the Council took account of all relevant factors in its decision or if there is any evidence it took anything irrelevant into account.
28. I found two areas where the planning officer’s report does not show the Council took relevant factors into account. First, there was inattention to the cill heights of the rooflights. There is no mention to these in the report. Given the developer did not identify these measurements in the approved plans, I have no evidence that shows the planning officer knew what they were. Further, the officer did not impose any planning condition specifying at what height they should be. This suggests they were not considered.
29. Second, I find no reference the Council considered specifically the impact of the larger rooflight on bedroom 2 of Mr B’s property. They did clearly take some account of the views between the two properties and noted in particular the closeness of the window serving bedroom 1. I consider the planning officer was referring to bedroom 1 when they spoke of the ‘orientation’ between the larger rooflight and Mr B’s property. This is because the two windows are offset at an indirect angle. That relationship explains why the officer did not think the development created any unacceptable overlooking. While I understand why Mr B might disagree with this judgement, I could not find it flawed, even though the officer should also have had regard to the cill heights.
30. The Council suggested the officer’s statement also applied to the window in bedroom 2. But the ‘orientation’ of the rooflight to bedroom 2 is more or less face on. So, this factor could not mitigate any potential loss of privacy to Mr B’s house from the views created to and from bedroom 2.
31. I consider the failure to take these factors adequately into account justified a finding of fault.
32. I did not find fault in how the Council handled other aspects of the planning application. I considered it would have desirable for the enforcement officer to have visited the development site at an early stage when Mr B raised his concerns. But I understand their reasons for not doing so and I cannot say there was fault in those.
33. I also find the Council did not have scope to revisit the impact of the rooflights when the developer submitted the second planning application proposing minor amendments to the plans. This is for the reasons stated in the second planning officer report.
34. However, there was further fault in the Council’s handling of Mr B’s complaint. First, both at Stage 1 and Stage 2 it was subject to delay. I recognise this may have been unavoidable. And at Stage 2 the Council did make Mr B aware its response would be late. But even so, on both occasions, he had to chase the Council for a reply.
35. I also note that neither reply to his complaint grappled with the main issue raised by Mr B, which was how the Council had considered his privacy when approving the rooflights. The replies also left him confused with different references to the cill height of the rooflights.

Did these faults caused Mr B injustice?

36. The Council says that even though with hindsight it would have applied a planning condition to require the cill heights 1.7metres above floor levels, it could still have approved the rooflights ‘as built’. I accept this is so. I also recognise bedroom 2 in Mr B’s property faces the street, from where there are views to and from it. So, this was not a room that enjoyed absolute privacy before development took place. The Council would give weight to this when considering any planning application.
37. But even so, on the balance of probabilities, and given the Council’s own statements on this matter, I do not consider it would have approved the development in its current form. Instead, I consider but for the fault, the Council would have imposed a planning condition requiring the cill heights of the rooflights to be at a minimum of 1.7metres. This would make them around 15-20cm higher in the roof than now.
38. This difference in height creates some injustice for Mr B. Because the view from the rooflight in the bedroom, towards Mr B’s home, affords him slightly less privacy than that if the rooflight were slightly higher. However, the difference is small. So even if the Council had not decided the planning application with fault, there would still have been some loss of privacy to Mr B.
39. I am not persuaded the smaller rooflight creates any injustice for Mr B. As the Council points out it does not serve a habitable room. Instead, it serves a bathroom. This will be used infrequently and in any event the occupier has chosen to cover the glass with obscure film.
40. I also consider Mr B has suffered some injustice through the Council’s complaint handling, putting him to some unnecessary time and trouble.

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Agreed action

41. The Council has accepted my findings in this case. It has agreed to provide Mr B with an apology. It will do this within 20 working days of this decision. The apology should be meaningful and must take account of our published guidance on remedies (section 3.2) Guidance on remedies - Local Government and Social Care Ombudsman
42. The Council will provide us with evidence it has complied with the above action.
43. Before deciding this was the only proportionate remedy in this case I considered if it were possible for the Council to act in a way that would mitigate the impact of the larger rooflight on Mr B’s amenity. However, I did not consider that viable here. I considered it disproportionate to ask the Council to try and negotiate with the developer to move the larger rooflight, given the minimal benefit this would provide to Mr B. This also took account the developer held a valid planning permission for the rooflight as built. I also could not ask the Council to negotiate for obscure glazing to that rooflight given that I have not found it would have required this but for the fault.
44. Second, I considered if the Council should make a symbolic payment to Mr B to recognise his injustice. However, I found this too would be disproportionate for the extent of injustice caused. I recognise the rooflights (the larger in particular) cause distress to Mr B and his family. But I considered some distress inevitable here, given that but for the fault the Council would still have approved the bigger rooflight, in only a slightly higher position.

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Final decision

45. For reasons set out above I upheld this complaint finding fault by the Council causing injustice to Mr B. The Council has accepted this finding and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman