Summary: X complained about the Council’s decision to approve a planning application for an extension near X’s home. We found fault in the way the Council made its decision, but for which it is likely the outcome of its decision would have been different. We made a recommendation for a remedy for the injustice caused by the fault, which the Council has agreed to carry out.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to follow its local plan policy when it approved an application for an extension which included a large window facing towards X’s home. X says this window affects privacy inside their home and garden.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. 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 over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
12. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
13. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.

What happened

15. X’s neighbour applied for planning permission to extend their home. The extension included a large window to a bedroom which faces towards a bedroom window in the side of X’s home at an angle of about 50 degrees and a distance of about 9 metres.
16. The planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the principle of development, design and visual impacts, impacts on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
17. The case officer acknowledged that the window was close to the boundary – the report states the distance is 7.3 metres. In relation to X’s privacy, the case officer said that because the cill height of the large gable window was 1.7 metres above finished floor level, there would be no adverse impact or loss of privacy.
18. X complained to the Council about what happened, and it accepted the case officer report included an error because the cill height is not 1.7 metres. I looked at the plans which are scaled, and the cill height appears to be about 1.2 metres from floor level.
19. X sent me photos showing the view from inside their home facing towards the extension and of the side of their home, showing the first floor window that faces towards the development. The photo shows the neighbour has fitted plantation shutter blinds to the large window in the gable end of the extension.

My findings

20. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
21. The Council accepts there was an error in its case officer’s report, because it assumed a large window was acceptable because it had a high cill height of 1.2 metres above floor level.
22. This is fault. When we find fault we have to decide whether the outcome would have been different, and if so, whether the complainant was caused an injustice for which we should recommend a remedy.
23. I consider it likely that but for the fault the Council would have made a different decision. The window is very close to X’s bedroom window in the side of their home, and even though the windows are offset at an angle, there is now a significant degree of overlooking that might have been avoided. There is also overlooking to parts of X’s garden.
24. I consider it likely the Council would have made a different decision, probably to control the glazing in the new window so all or part of it was obscurely glazed, at least to 1.7 metres above floor level.
25. The fault causes an injustice to X which the Council should agree to remedy.
26. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.

Back to top

Agreed action

27. The fault I found caused an injustice to X that the Council has agreed to remedy, by taking the following action. It will:
1. apologise to X for its fault and the impact it has on their privacy; and
2. pay £1000 in recognition of this impact. X may put this money towards improvements which may reduce the loss of privacy.
28. My recommendations should be carried out within one month from the date we issue our final decision. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

29. I found fault causing injustice which the Council agreed to remedy. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman