Summary: Mrs X said the Council had not properly considered the impact of development that badly affected privacy to her home. We found no fault in how the Council reached its decision to grant the development planning permission.

The complaint

1. Mrs X said the Council failed to protect her privacy in granting planning permission for development near her home. Mrs X said a window in the development overlooked her home so badly it was like living in a goldfish bowl, which was uncomfortable and stressful. Mrs X wanted the Council to either secure obscure glazing for the overlooking window or compensate her for the distress and provide landscaping to screen the development.

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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 how the organisation made its decision, 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:

• considered Mrs X’s written complaint and supporting papers;
• talked to Mrs X about the complaint;
• considered planning information about the development available on the Council’s website; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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What I found

Background

5. Most development needs planning permission from the council. And council planning decisions must be in line with their development plan policies unless material considerations indicate otherwise. Material considerations concern the use and development of land in the public interest but not private considerations such as the applicant’s behaviour or changes to property prices. Material considerations include issues such as overlooking, traffic generation and noise. Planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities (living conditions).
6. Before deciding a planning application, the council must publicise it so people may comment on the proposed development. Here, the Council had to publicise the development by either putting up a site notice or sending letters to nearby properties. Peoples’ comments on land use and planning matters will be material planning considerations the council must take into account in deciding applications. Taking into account does not mean the council must agree with the comments.
7. No law says the council must visit a site before deciding a planning application. However, a council planning case officer often will visit the site. The case officer will also usually prepare a report assessing the proposed development against relevant planning policies and other material planning considerations. The report will end with a recommendation to either grant or refuse planning permission. The courts have made clear that officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

8. Most planning decisions are made by a senior council officer. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application. The senior officer may therefore disagree with the recommendation set out in the case officer’s report.

What happened

9. The Council received and publicised a planning application for development near Mrs X’s home. The development included changes to an existing window that looked towards Mrs X’s property (‘the Window’). Mrs X said she was not familiar with interpreting plans and did not comment on the application. A Council planning officer reported on the application, recommending the grant of planning permission. The Council granted planning permission and building work started on site.
10. On completion of the development, Mrs X found the Window had an unacceptable impact on her property and complained to the Council. In summary, Mrs X said the Council had not properly considered planning policies about protecting neighbouring living conditions. Its officer’s report on the application did not refer to the Window or show why it was acceptable without obscure glazing. Mrs X recognised there would be some overlooking between properties. However, the Window gave direct and clear views across her property. Mrs X pointed to other Council planning permissions with conditions requiring obscure glazing to windows and balconies to protect neighbours’ privacy. The Council had not secured obscure glazing for the Window and so failed to protect her privacy from unacceptable overlooking. Overall, the Council could not justify its decision.
11. In summary, the Council’s response was it had processed the application correctly, including giving Mrs X the opportunity to comment. It had fully assessed the development, including its impact on neighbouring properties. The Window replaced an existing window, which was material to the decision. The Window also served a non-habitable room, which meant use of the space was transient. (Non-habitable rooms are cloakrooms, utility rooms, hallways and landings.) Each application was considered on its own merits and, here, it had not found the Window needed obscure glazing. The development changed how Mrs X experienced the site, but the separation distance was sufficient to ensure any increased overlooking was not unduly harmful. The conclusions it had reached were a matter of planning judgement and the development did not result in an unsatisfactory living environment.

Consideration

12. We are not an appeal body. Our role is to consider whether there is evidence the Council acted with fault in reaching its planning decision. And, if there is evidence of fault, we consider whether it caused the complainant significant injustice.
13. The Council gave Mrs X the opportunity to comment on the development. And the officer report assessing the development identified impact on existing homes as a key consideration in deciding the application. This issue was addressed in one paragraph in the officer report. The paragraph ended saying the development would not cause significant harm to nearby homes, including through loss of privacy.
14. A home is important to most people. I therefore recognised Mrs X might have expected a more detailed assessment of the development’s impact on nearby homes and specific consideration of the Window. However, the application was for ‘householder’ development. (A householder planning application proposes development to extend and or make changes to an existing home.) And, in planning terms, the development was ‘minor’. Councils receive and decide many householder planning applications each year.
15. The application showed the Window had and would continue to serve the same non habitable space. The officer report provided evidence the Council considered the issue of the impact of the development on existing nearby homes. And, given the scale and nature of the application, I did not find it was fault because the report had not addressed each change proposed to the property, including to the Window (see paragraph 7 of this statement).
16. There was evidence the Council had placed conditions on other planning permissions requiring obscure glazing of windows to non-habitable rooms. However, the Council must consider each application on its own merits. Here, in processing the application, the Council correctly identified and addressed the planning issue of the development’s impact on nearby properties. Having identified and assessed key planning issues, it was for the Council to decide whether the development was acceptable or could be, for example, by requiring obscure glazing to windows. Here, the Council found the impact of the development on nearby homes, including the Window, was acceptable without mitigation. Overall, I saw no evidence the Council had not correctly processed the application. And without such evidence I could not question the Council’s planning decision however strongly Mrs X might disagree with it (see paragraph 2).

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Final decision

17. I completed my investigation finding no fault in the Council’s planning decision making.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman