Summary: Mr X complained about the Council’s handling of both a planning application for development near his home and his complaint about the matter. We found the Council failed to properly consider the impact of the development on Mr X’s home and avoidably delayed dealing with his complaint. The Council agreed to make a symbolic payment to Mr X in recognition of his avoidable distress, time and trouble caused by fault in both its planning decision making and complaint handling.

The complaint

1. Mr X complained about the Council’s failure to properly consider the impact of development on his home and living conditions in granting planning permission. The Council’s incomplete assessment and inadequate condition on the planning permission meant the development overlooked his home and significantly reduced his privacy.
2. Mr X said he now kept his blinds permanently shut as people using the development could see directly into his home. He was dissatisfied with the Council’s refusal to mitigate the impact of the development on his home. Ideally, he wanted the Council to ensure the developer provided privacy screening near the boundary of his home.
3. Mr X also complained about the Council’s complaint handling.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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

7. I considered evidence provided by Mr X and the Council and relevant law, policy and guidance. I also considered information about the development available on the Council’s website. I gave Mr X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Development management

8. Councils should approve planning applications in line with their local development plan unless material planning considerations suggest otherwise. Material planning considerations may include, for example, access to a site and the impact of the development on neighbouring amenity. Material planning considerations do not include peoples’ view from their home, the impact of development on house prices, or private rights and legal interests in land.
9. Councils should publicise applications so people may comment on the proposed development. Peoples’ comments about planning and land use matters are material planning considerations. Councils must take such comments into account but do not have to agree with them. Councils do not need to visit an application site before deciding whether to grant development planning permission.
10. Councils delegate most planning decisions to their officers. And, here, the Council’s officers dealt with the planning application for development near Mr X’s home. Councils do not need to provide a report on a planning application. But a planning case officer will often prepare a written document showing their assessment of the proposed development. A senior officer will then consider the written assessment or report and decide whether to grant or refuse planning permission.
11. Councils may impose conditions on a planning permission and must give their reasons for each condition. A condition may, for example, seek to reduce the adverse effects of the development by specifying obscure glazed windows to safeguard neighbours’ privacy.

Council complaint procedure

12. The Council has a one stage corporate complaint procedure. It will acknowledge complaints within three working days and provide a written response within 20 working days. Where the Council misses these time targets it will give the complainant contact details for the Ombudsman.

Summary of what happened

13. The Council received an application for development on land near Mr X’s home. Mr X sent the Council representations about a part of the development.
14. A Council planning officer visited the application site and Mr X’s home before preparing a report assessing the application (the Report). The Report referred to relevant planning law and policies and summarised representations, including Mr X’s. The Report also identified six key planning considerations for deciding the application. One key issue was the impact of the proposed development on neighbour amenity. In assessing the six issues, the Report addressed the three points raised in Mr X’s representation. The Report also addressed the overlooking and privacy issue Mr X later complained about. The Report found the proposed development in line with local and national planning policy and, as no material planning considerations suggested otherwise, recommended it receive planning permission. The Report set out a draft planning permission, including conditions to regulate the proposed development.
15. A senior planning officer considered the Report and granted conditional planning permission. One condition sought to safeguard neighbour amenity and privacy (‘the Condition’).
16. The development was built. Mr X contacted the Council concerned the developer had not fully complied with the Condition, which meant the development significantly reduced his privacy. The Council said the Condition was imposed to protect existing residents’ privacy. The Council suggested Mr X contact its Enforcement Team so they could check if the developer had complied with the Condition. The Council also said Mr X could make a formal complaint.
17. Mr X complained saying partial compliance with the Condition had badly impacted his privacy. Mr X asked both for a site visit and for the Council to ensure the developer complied fully with the Condition. Mr X sent the complaint to the Council’s Complaints Team with a copy to its Planning Team. In response, the Planning Team said the developer had fully complied with the Condition. However, it could have used a condition asking the developer for details of works, for its approval, to mitigate the impact of the development on existing residents. This would have provided added clarity for people reading the planning permission.
18. Mr X disagreed with the Council’s interpretation of the Condition and was dissatisfied with its response. He asked to escalate his complaint and repeated his request for a site visit. The Council said it would not visit as there was nothing it could do and advised Mr X to make a formal complaint.
19. Mr X made a second complaint saying the Council had not correctly processed the planning application for the nearby development, which removed privacy to his home. Mr X also said the Condition was open to differing interpretations. Mr X said the Council needed to ensure the developer fully complied with the Condition, which would restore privacy to his home.
20. The Council’s Complaint Team referred the second complaint to the Council’s Planning Team. Mr X questioned this, given the planners had responded to his first complaint. The Council, apologising for the confusion, explained the first complaint response had not been overseen by its Complaints Team. The Complaints and Planning Teams were now liaising to ensure Mr X received a full and final response to his complaint. The Council also gave Mr X contact details for the Ombudsman.
21. A Council manager arranged to visit Mr X’s home. About three weeks after the visit, the Council sent Mr X its final complaint response. It confirmed the developer had complied with the Condition, although its wording could have been better. And a condition seeking details of mitigation works for it to approve would also have been better. The Council recognised it had not viewed all the development from Mr X’s home on its first visit. On its second visit, it had viewed that part of the development of concern to Mr X and accepted it gave views into his home.
22. The Council said the view to Mr X’s home was not a prime view and was possible from a relatively small and distanced part of the development. Nevertheless, the potential for views to Mr X’s home meant there was a loss of some privacy. Unfortunately, despite its first site visit and its assessment of the planning issue before granting planning permission, it had omitted to consider the impact of the development on a part of Mr X’s home. The Council apologised for the omission but said there was nothing more it could do. The Council again signposted Mr X to the Ombudsman.

Consideration

The grant of planning permission

23. While not legally necessary, the Council took time not only to visit the application site but also Mr X’s home. It was therefore unfortunate it then omitted to fully consider the impact of all the development on Mr X’s home. However, as the Council accepted in its final complaint response, that omission ultimately led to a loss of privacy for Mr X. On balance I found the omission meant the Council failed to properly consider the impact of the development on neighbour amenity. This was fault.
24. On balance, I did not find the Council would likely have refused planning permission if it had expressly considered the issue omitted from its assessment. Rather, it was more likely to have worded the Condition differently and or imposed added conditions on the planning permission to further protect neighbour amenity.
25. I recognised Mr X found the loss of privacy significant. I also recognised the Council raised points suggesting likely limits on the loss of privacy (see paragraph 22). I found the Council’s points relevant and valid. I also found use of the overlooking part of the development would likely be seasonal and less likely to occur after dark. However, I found the fault identified at paragraph 23 caused Mr X injustice as it led to some loss of privacy to his home.

The Condition

26. The complaint also raised uncertainty about the Condition. I accepted Mr X and the Council had read the Condition in different ways. However, the Report showed, in assessing the development, the Council did not consider there was overlooking or a loss of privacy from a part of the development into Mr X’s home. It therefore did not draft or impose a planning condition aimed at mitigating such an impact. I found the Condition, as worded, was suitably clear and precise. And the developer’s works complied with the Condition, which did not extend as far as Mr X believed and wanted. I therefore found no fault here. In reaching this view, I considered what the Council said about a condition asking for details of mitigation works for its approval. However, that the Council might have acted differently or done something more, did not necessarily mean there was fault in what it did. And, while likely of no comfort to Mr X, I thanked the Council for learning from what happened here by saying it would consider such a condition when dealing with similar development in the future.

Complaint handling

27. The Council’s complaints procedure says it will respond to complaints within 20 working days. Here, from Mr X’s first complaint to the Council’s final response, following the second site visit, was about four months.
28. Within the four months, the Council responded to Mr X’s first complaint within 20 working days. But, while its response referred to Mr X’s ‘complaint’, it did not signpost him next to the Ombudsman. And, when Mr X asked how he could escalate his complaint, the Council advised that he complain (and then gave him details for the Ombudsman). The Council later apologised for what happened explaining its Complaints and Planning Teams had not worked together to respond fully to his complaint.
29. It was about six weeks before the Council made any substantive progress with Mr X’s second complaint. I therefore found avoidable delay here. However, the Council then contacted Mr X about a site visit, which it took about a week to arrange and was for a date about three weeks later. So, while this took up time, it was not due to avoidable delay by the Council. After the site visit, it took the Council a further three weeks to send Mr X its written response. The three weeks taken was within the 20-working days’ time target set out in the complaints procedure.
30. Making the second complaint led the Council to visit Mr X’s home, which request he had made in first contacting the Council about the built development. However, on balance, I did not find the Council’s apology for the confusion arising from its handling of the first complaint fully and suitably addressed the frustration Mr X was likely caused. It also did not address Mr X’s avoidable time and trouble in having to make two complaints about the same matter. And, setting aside the time linked to arranging and making the second site visit, the Council took over two months to deal with the second complaint. The time taken overall to respond to his second complaint would likely have added to Mr X’s frustration. I therefore found fault causing injustice in the Council’s complaints handling.

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Action

31. Having found fault causing injustice, I considered our guidance on remedies. The Council had apologised to Mr X. However, to proportionately, appropriately and reasonably address the injustice, needed a symbolic payment. The Council therefore agreed, within 30 working days of this statement, to make a symbolic payment of £650 to Mr X. The payment comprised:

• £500 in recognition of the avoidable distress arising from some loss of privacy to his home caused by fault in the Council’s planning decision making; and
• £150 in recognition of the avoidable time and trouble caused by fault in the Council’s complaint handling.

32. The Council also agreed to provide us with evidence it complied with the action set out in paragraph 31.

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Decision

33. I found fault causing injustice. The Council agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman