Summary: Mrs B complained that the Council in approving a planning application for development next to her property, failed to properly consider the impact on her amenity relying on the existence of a boundary fence which the neighbour has now removed. We found some fault in the way the Council explained the reasons for its decision, but we consider the action taken afterwards has resolved the situation.

The complaint

1. Mrs B complained that the London Borough of Havering (the Council) in respect of development next door to her property, failed to properly consider the impact on her amenity: specifically, it relied on the existing fence to mitigate the overlooking without accounting for the possibility that the neighbour could remove the fence. The neighbour has removed the fence and Mrs B says the development has an unacceptable impact on her privacy.

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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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.

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What I found

Planning permission

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
6. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

7. 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.

8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

What happened

9. Mrs B’s neighbour applied for planning permission for development to the rear of their property and adjacent to her garden. Mrs B objected on several grounds including overlooking through the proposed glazing.
10. The Council did not visit the site but assessed the application from online images and the submitted drawings. The case officer’s report said in respect of the glazing that ‘there would not be any further implication for overlooking than there is at present and there is fencing along the boundary’. The Council approved the application.
11. When the development was put up the neighbour removed the fence. Mrs B complained to the Council that the overlooking into her garden and rear of her property was unacceptable and the decision had been made taking into account the fence as screening.
12. The initial response from the planning team said that the plans were approved on the basis of the fencing along the boundary and the reasonable assumption that the fencing would remain.
13. Mrs B made a formal complaint that the application had been approved on the basis of the fencing and was unacceptable without it. The Council responded at stage one of its complaints procedure. It said that it was effectively a cover to an outdoor area and was not the construction of a habitable room or extension and so the lack of a solid or opaque side was not unreasonable. It also said the neighbour could have chosen to remove the fence at any time and it was a matter over which the Council had no control.
14. Mrs B escalated her complaint to stage two asking for clarity on whether the structure was built in accordance with the plans given that the fence had been removed. The Council responded saying that the plans appear to show the boundary fence in place, but it was not detailed as being retained or removed. The Council would not have required this detail because the neighbour can remove or erect a fence without planning permission.
15. However, the Council in an effort to resolve the situation mediated with the neighbour to see if anything could be done to mitigate Mrs B’s concerns. The neighbour agreed to install a section of obscure glazing. The Council considers the situation has been resolved.
16. Mrs B complained to us. She said she has erected a fence and some planting to mitigate the overlooking.
17. In response to my enquiries the Council said the plans appeared to show retention of the fence but this was not explicitly confirmed. it was reasonable to take into account the situation as it was on site, and it would not be reasonable to second guess any changes which might occur in the future. It said it would not be proportionate to place a condition on retention of the fence and Mrs B could remedy the problem by constructing her own fencing. It also said even if the fence had not been in place, it is unlikely it would have refused permission or asked for a screen to be provided because the overlooking would not be significantly greater as a result of the outdoor area.

Analysis

18. I agree that it was reasonable for the Council to consider the impact of the development taking into account the situation that existed on site and that the fence appeared to have been shown in the drawings.
19. However, given that the Council could not rely on the fence remaining in place and had no control over its retention, I consider the Council should have included its view, as part of the decision-making process, that the development would have been acceptable even without the fence in place. The case officer’s report read as though the fence was an integral part of the decision and this view was confirmed by the initial response from the planning team. This omission caused Mrs B some distress when the fence was removed, and the development was built right up to the boundary. It was only once she complained that the Council explained the position with the fencing and clarified its view that the development was still acceptable.
20. But as the Council has taken steps to mitigate the overlooking by asking the applicant to install opaque glazing, and Mrs B has taken her own steps to screen the boundary, I do not consider Mrs B has been caused an injustice which warrants further remedy.

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Final decision

21. I have completed my investigation as I consider the action taken by the Council has put right any injustice to Mrs B caused by the Council’s failure to properly explain the status of the fence in its decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman