Summary: Mrs X complained the Council did not follow relevant planning policy when it approved a neighbour’s planning application to build an extension close to her home. Mrs X says the Council’s actions have caused avoidable distress and led to a loss of privacy as her property is overlooked by the development. We found fault by the Council and the Council has agreed to provide a financial remedy to Mrs X.

The complaint

1. Mrs X complained the Council did not follow relevant planning policy when it approved a neighbour’s planning application. The planning application requested permission for a neighbour to build an extension to a property at the rear of Mrs X’s home. The Council approved the application despite Mrs X’s objections that the proposed development was too close and would overlook her property. Mrs X says the Council’s actions have caused avoidable distress and led to a loss of privacy as her property is overlooked by the development. She would like the Council to take steps to prevent the same thing happening to someone else.

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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. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. I discussed the complaint with Mrs X and considered the information she provided.
6. I considered the Council’s correspondence to Mrs X and the planning documents available via the Council’s website.
7. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Planning permission

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
9. 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.
10. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
11. 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.
12. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded upon valid material planning reasons.
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

District Valuer Services

14. District Valuer Services (DVS) is the specialist property arm of the Valuation Office Agency. It provides independent, impartial, valuation and professional property advice across the public sector, and where public money or public functions are involved.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. In 2023, the Council received a planning permission application from Mrs X’s neighbour requesting permission to build an extension to their property. The neighbour’s property is situated at the rear of Mrs X’s property.
17. Mrs X objected to the application; she said the proposed development would be too close and would overlook the rear of her property and garden.
18. The Council produced a planning officer’s case report. The report stated the Council’s planning department considered there would be no detrimental impact on Mrs X’s property or its amenity areas by way of overlooking from the proposed development.
19. The Council approved the planning application.

Mrs X’s complaint

20. Mrs X complained to the Council in September 2023. She said the development at the rear of her house included large opening windows which looked over her garden fence. Mrs X said the planning officer concluded this would not result in unacceptable overlooking. Mrs X said by approving the application, the Council had not complied with its own planning policy regarding the minimum permitted distance between the development and her property. Mrs X complained the windows in the development caused a loss of privacy as a result of overlooking.
21. The Council responded to Mrs X’s complaint. It said it considered that due to the difference in levels between the properties, there could potentially be an impact in terms of overlooking to Mrs X’s rear garden. The Council said it had visited Mrs X’s property and acknowledged that her neighbour had started to erect a fence. The Council acknowledged however, that the fence could be taken down at any time. The Council said it would speak to the neighbour’s agent to ask if they would consider making changes to improve the situation. However, the Council said it could not enforce any changes to the development because it had already approved the planning application. The Council said it may instruct the District Valuer to assess the impact to Mrs X.
22. Mrs X remained dissatisfied with the Council’s response and brought her complaint to the Ombudsman. She said she had not received any further contact from either the Council or DVS.

What happened next

23. In November 2023, DVS carried out an inspection of the development and considered its effect, if any, on the market value of Mrs X’s property. DVS produced a report which set out its findings.
24. The report said that due to the slight difference in ground levels, the development overlooked some of the nearby houses, including Mrs X’s. DVS also referred to the Council’s Residential Design Guide and the Council’s minimum separation distance requirements as set out by the guide. The report gave the market value of Mrs X’s property as £2,000 lower than if the planning permission had not been approved.
25. The Council emailed Mrs X on 13 December 2023 and said it had reviewed her complaint further. The Council upheld Mrs X’s complaint and said it was clear in this instance it had failed to apply both the law and its policies correctly. The Council said this led to a decision that might not otherwise have been made.
26. The Council said it had considered the original application and concluded the development did not achieve the necessary minimum distance between Mrs X’s property and the development. The Council said that as a result, the development did not accord with the Council’s policy. The Council also acknowledged that the development overlooked Mrs X’s rear garden due to the difference in ground levels. The Council apologised to Mrs X and offered a payment of £2,000 as a remedy.
27. Mrs X replied to the Council and said she wished to challenge the conclusion of the DVS report. Mrs X said she calculated her loss to be greater than £2,000.

Analysis

28. As stated at paragraph two, we investigate complaints about maladministration and service failure. It is not our role to say whether councils should have granted planning permission or not; we look to see if councils followed the proper procedures and relevant legislation and guidance when making decisions.
29. I acknowledge the Council’s comments to Mrs X provided in its email of 13 December 2023; it is positive the Council has itself acknowledged it did not apply the law and its policies correctly. As the Council has already identified it did not follow the proper procedures, further investigation regarding this matter is unlikely to add to the Council’s investigation or lead to a different outcome. I agree with the findings of the Council and find its failure to apply the law and its policies correctly is fault.
30. Having identified fault, I must consider if this caused a significant injustice to Mrs X. Mrs X says the Council’s actions caused avoidable distress to her and her husband, as well as a loss of privacy resulting from its decision.
31. It is positive the Council has acknowledged Mrs X’s property is overlooked by the development and has offered a remedy in recognition of this. However, the remedy offered by the Council does not fully address the injustice to Mr and Mrs X. I have therefore, in the following section of this decision statement, recommended the Council takes additional steps to remedy the injustice to Mrs X.
32. We previously investigated a similar complaint against the Council in August 2023, reference 22012751. As a result of our investigation, the Council agreed to our service improvement recommendations, including a review of its planning practices and procedures. The Council carried out its review in late 2023 and identified steps to improve its planning service. This included the restructuring of its team and the provision of additional training.
33. The events complained about by Mrs X took place before the Council’s review of its planning practices and procedures. Had our previous investigation not recommended a review of the Council’s planning practices and procedures, I would have considered making this recommendation as part of this investigation.
34. Similarly, had the Council not already apologised to Mrs X, I would have considered making this recommendation as part of this investigation.
35. Mrs X strongly disagrees with the findings of the DVS report and considers the reduction in the value of her home is greater than £2,000. Whilst I acknowledge Mrs X’s comments regarding this matter, District Valuer Services is a separate body to the Council. Mrs X may contact DVS if she wishes to challenge the findings of its report.

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Agreed action

36. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Make a payment of £2,000 to Mrs X in line with the findings of the District Valuer Service’s report;
2. Make a further symbolic payment to Mrs X of £300 in recognition of the distress caused;
3. Remind staff to adhere to the Council's planning and development policies, and
4. Provide further training to its planning services staff where appropriate.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have found fault by the Council and the Council has agreed to take the above action to remedy this complaint. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman