Summary: Mrs X complained the Council provided conflicting information about the maximum height of new buildings on land adjoining her property and failed to properly consider the impact on her residential amenity. There was one reference to a different maximum height in a delegated decision report, possibly a typographical error, but this did not affect the outcome of the planning application.

The complaint

1. Mrs X complained the Council provided conflicting information about the maximum height of new buildings on land adjoining her property and failed to properly consider the impact on her residential amenity.
2. Mrs X says the new buildings will cause overlooking and affect her privacy.

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The Ombudsman’s role and powers

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. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Outline planning applications and reserved matters

7. Outline planning permission establishes the acceptability of development, subject to later agreement to details of ‘reserved matters’.
8. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.

Material Amendments

9. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
10. If the Council decides the changes are ‘material’, it may require the whole or part of the process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process.

Case officer reports

11. The purpose of the case officer’s report is not only to help the council decide on the application. It is also to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
12. However, the courts have made it clear that case 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 on 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.

Key facts

13. An outline planning application for residential development on land behind Mrs X’s property was submitted in July 2017. The application was for construction of up to 24 dwellings but reserved all matters except for the principle of development and access.
14. Neighbours submitted 52 objections to the application including concerns about loss of light, overlooking existing properties, loss of recreation space, increased traffic, height of new houses. The Council approved the application and the decision notice is dated May 2020. It included a condition that stated:
• The maximum height parameter of the buildings hereby granted outline permission shall not exceed 9.6 metres above ordnance datum to the ridge nor exceed a maximum height of 10 metres for chimneys above ordnance datum level. Any buildings constructed under this permission shall comply with there parameters.
15. In September 2022, the developer submitted a minor amendment application. The application was to change the access to the site. One letter of objection was received which raised concerns about the loss of privacy, overlooking and overshadowing from the new dwellings, loss of green space, highway concerns and lack of affordable housing. The Council approved the application and retained the condition detailed at paragraph ?? above stating the maximum height of the dwellings.
16. The Council received the reserved matters application in April 2024. The delegated decision report shows there were 10 letters of objection which included concerns about loss of light to houses and gardens, difference in ground levels, some properties at three storeys are out of scale with existing dwellings, overshadowing and loss of privacy, noise, loss of green space, increased traffic.
17. The report stated the proposed dwellings would generally be two storey in heigt with a number providing accommodation n the roof at second floor level which include gable or dormer elements. It went on to say that the maximum height of the dwellings would be 9.4 metres from the ground level on which it would sit and that this would not exceed the height restrictions of the condition of the original outline permission. The report stated the proposed scale of the dwellings would not be out of character with those of the surrounding area.
18. It also considered issues of residential amenity and stated that where habitable room windows directly face towards habitable room windows within existing nearby residential properties outside of the site, adopted separation distances are adhered to. It said where third floor windows are proposed in the rear of properties, these house types are situated at the North Eastern corner of the proposed sit and would not provide and direct overlooking to any existing residential dwelling. It concluded that the proposal would not result in any undue overlooking or loss of privacy and there would not be any undue overshadowing or loss of outlook. The Council approved the application.
19. Mrs X made a formal complaint to the Council in January 2025. The Council responded on 12 February saying the planning officer fully assessed the application against development plan policies and legislation. It said the layout ensures that adequate separation is retained between existing and proposed properties and windows do not directly overlook. It said overlooking into gardens is to be expected and that there is nothing to indicate the properties would be at a higher level and require steps. It said the delegated decision report identified and discussed concerns raised by residents and all matters were considered.
20. Mrs X escalated her complaint to stage two of the Council’s complaints process. It responded on 18 March to Mrs X’s complaints about the separation distance between her property and the proposed development. It said the window to window distance met the separation distance set out in the Council’s supplementary guidance and explained that there were no minimum standards for garden distances. It responded to Mrs X’s concerns about flooding and explained that it could not request the developer to make any changes as the grant of planning permission had been lawfully made.
21. Mrs X raised some further questions and the Council responded on 9 April. It provided details of the condition on the minor amendment application which stated the properties should be a maximum of 9.6 metres. It said the properties fall within this. It reiterated that the separation standards refer to a window-to-window distance and that due to the orientation there is no direct window to window between Mrs X’s property and the new properties. It said the nearest property to Mrs X has Velux windows in the roof and so does not afford any overlooking. The Council also provided an explanation of the supplementary planning guidance saying that it does not normally protect privacy where windows have been added to the original dwelling under permitted development rights.

Analysis

22. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
23. The information provided shows that the approved plans specify a maximum height of 9.6 metres from ground level for the new houses. This measurement is included on several plans and so I am satisfied this is the correct height. The delegated decision report for the reserved matters application stated 9.4 metres. This is the only reference to this measurement. In response to my enquiries the Council has assumed this was a typographical error and states that the delegated report refers to a height restriction of 9.6 metres on the original outline application and the minor amendment application.
24. While the reference to 9.4 metres in the delegated report is fault, I am not persuaded this has caused Mrs X a significant personal injustice. The plans show 9.6 metres as the maximum height and it is the approved plans that can be enforced and not the delegated decision report. On balance, I am satisfied it was always the intention that the maximum height would be 9.6 metres and the new houses do not exceed that.
25. Mrs X also has concerns about the buildings being raised up as the plans show steps. The plans show the ground levels and while there are some steps shown in the garden areas of the new properties towards the boundary with her property, there is nothing to suggest there will be steps up to the new properties.
26. I am satisfied that the Council was aware of the land levels when determining this application and that it was consistent in its position regarding the maximum height of the new buildings. The Council used its judgment and determined the application was acceptable and would not result in an unacceptable impact on her residential amenity. While I appreciate Mrs X does not agree with the Council’s determination, a difference of opinion is not evidence of fault.
27. Mrs X also refers to separation distances between her property and the new properties saying the minimum separation distances have not been met. In response to Mrs X’s complaints the Council has provided plans and drawings showing how it has measured the distances. It states that the minimum distances refer to the distance between windows of habitable rooms where the windows directly face each other. The position of the new houses means there are no directly facing rear windows and so the separation distances in the supplementary planning guidance are not applicable.

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Decision

28. There is no evidence of fault causing a significant injustice and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman