Summary: Mrs X complained about the Council’s decision to approve a planning application for her neighbour’s extension. The Council accepted it was at fault for failing to consider loss of amenity between relevant windows, impacting on her privacy significantly. It proposed a way to put things right. We considered the Council’s offer as appropriate to remedy Mrs X’s injustice in these circumstances. We did not make further recommendations.

The complaint

1. Mrs X complains about the Council's decision to approve her neighbour's planning application and says it did not properly consider her objections against it. The Council acknowledged an error in the way it considered privacy between windows. Mrs X says this has caused her significant frustration and distress, resulting in an unacceptable impact on her personal privacy because of the neighbouring extension.

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The Ombudsman’s role and powers

2. 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, we may recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, 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 discussed the complaint with Mrs X and considered her views and information she provided. I also listened to a recording of a phone call she had with the planning officer.
6. I considered the Council’s responses to Mrs X’s formal complaint, as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Planning applications

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 delegate most planning decisions to their officers. A planning officer will often prepare a written document showing their assessment of the proposed development. A decision maker will then consider the written report and decide whether to grant or refuse planning permission.

What happened – summary of key relevant events

10. Mrs X phoned the planning officer about her neighbour’s planning application for a side extension. This included concerns it would overshadow her home, greatly reducing the daylight she received. She noted external doors on the neighbour’s extension would directly face and open towards the side of her property. This was in close proximity to a downstairs toilet window, encroaching on her privacy. She described the importance of her downstairs toilet due to her disabilities.
11. Mrs X submitted her formal objections with the above concerns. The officer later visited the site and Mrs X’s property. Mrs X made a formal complaint around the officer’s actions.
12. The officer wrote a report assessing the proposal against relevant planning policies and material considerations, including impact on neighbouring amenity.
13. The report considered the potential loss of light and overshadowing:
• The officer assessed the above and believed they were in accordance with the Council’s planning guidance. They were satisfied the 45-degree angle would not be breached. Overall, they considered Mrs X’s property would not be overshadowed to a degree that would warrant a reason for refusal.
14. The report also assessed privacy issues:
• The officer considered the proposed external door of the neighbour’s extension opposite Mrs X’s downstairs toilet window. In their view, the fence between the properties was sufficient to prevent privacy loss. Overall, they decided the proposed development would not have a harmful impact on privacy.
15. The officer report concluded the proposed development to be acceptable. A senior officer reviewed it, and the application was later approved.
16. The Council’s Stage 1 response to Mrs X’s complaint did not uphold it. It was satisfied the officer identified relevant planning considerations and presented a proper assessment of the proposal.
17. Months later, Mrs X escalated her complaint. She described the neighbour’s extension now built with the external door. They also had a first floor window facing her home which, when opened, clearly overlooked down into her downstairs toilet window. This resulted in significant loss of privacy and distress. She said in their phone call, the officer told her the Council do not take disabilities into account and dismissed her concerns.
18. A Director visited Mrs X. In the Stage 2 response to her complaint, it partially upheld it. The Council gave detailed explanations as to why it was satisfied with the general design of the neighbour’s extension and its size. It confirmed the compliance with the 45-degree rule. It acknowledged she felt overlooked from the opposite external door but noted only the top of it was visible with the fence in between. It maintained it was the correct decision to approve the external doors facing Mrs X’s property.
19. However, it accepted with the neighbour’s first floor window now installed; it opened outwards and this had an unacceptable impact on the privacy of her downstairs toilet. While both windows were obscured glass, it said another type of window for the neighbour (a top-opening only one) would have been appropriate.
20. It apologised and accepted errors made with how it determined the application. The Director visited her again and offered to replace her existing window to one that would open in a way that provided greater privacy. It could speak to her neighbour to see if they could change their window. But the Council could not compel them to do so and could also not prevent it being changed back in the future. It could not now revoke the planning permission.
21. Mrs X declined. She said it was unacceptable that she should make structural changes to her home to accommodate her neighbour’s build.

Analysis

22. We are not a planning appeal body. We do not take a second look at a decision to decide if it was wrong. We look at the processes a council has followed to make its decision. If we consider the Council has followed these processes correctly, we cannot question the outcome. We also look for evidence of fault causing significant injustice to the individual complainant.

Mrs X’s concerns about the doors, loss of light, and overshadowing

23. In the call recording, the officer considered Mrs X’s issues about privacy with the external door, noting the fence in between the properties and distances. They would visit to assess, and they said they could ask the neighbour to remove the door if needed. Their report considered this and later decided the fence would prevent direct overlooking. This means it was not necessary to change the door.
24. Similarly, the report also assessed potential loss of light and overshadowing. Even after another visit responding to Mrs X’s complaint, the Council explained why it still generally considered her neighbour’s extension acceptable in planning terms. It reviewed the mass, the design and the external doors again and gave its reasons.
25. The Council acknowledged some overbearing impact for Mrs X. However, the test is not whether there will be an impact, but rather, whether the impact would reduce neighbour’s amenity below such a reasonable level that it justifies a refusal of planning permission. In this case, the Council weighed up these material planning considerations, decided it was acceptable and complied with its planning policies. I do not find fault in the decision-making process, so I cannot criticise the professional merits of these decisions. These have been properly considered in line with relevant guidance. While Mrs X disagrees with the Council about the extent of the impact the size of the extension and the door has on her, I do not find fault by the Council as the above decisions were ones they were entitled to make.

Privacy between windows

26. Mrs X raised privacy issues specifically about the external door. As above, I am satisfied the Council made a properly considered decision on this.
27. Mrs X said on the phone call, the officer told her the Council did not take disabilities into account. I did not hear this on the phone recording. In any event, in accordance with planning policies, the Council must assess relevant material planning considerations. This includes privacy and impact on residential amenity, regardless of any disabilities someone has.
28. In the specific case of the proposed first-floor window facing the same side, the Council failed to take these privacy considerations into account. While Mrs X did not bring this window to the attention of the Council in her objections, it is something the Council should have noted itself from the drawings. It failed to even identify this or assess the impact it would have on her amenity, given the nature of a downstairs toilet. This is fault.
29. To its credit, the Council accepted its error with not considering the impact of this window on Mrs X. This fault causes significant loss of privacy and distress.

Injustice and proposed remedy

30. Mrs X has not accepted the Council’s proposed remedy. I appreciate the impact this has had on her and she wants planning permission revoked. We would only recommend this in very exceptional circumstances. This is because any injustice can usually be remedied by taking other action at significantly lower cost to the public and planning applicants are also not responsible for fault by a planning authority.
31. In assessing injustice, we also consider what development has been carried out and compare this to what would have been allowed if there had been no fault by the Council. In this case, it is unlikely the Council would have refused overall planning permission due to this first floor window, had it properly considered it. Instead, as stated by the Director in Paragraph 19, it likely would have altered the neighbour’s window type to prevent overlooking into Mrs X’s downstairs toilet.
32. In line with our Guidance on Remedies, we will usually ask the Council to take remedial action to mitigate the impact. The Council offered to replace Mrs X’s window which would achieve this; as a practical measure to restore her privacy. I welcome this. I consider this a reasonable and proportionate remedy for the fault identified in these unfortunate circumstances. I also note Council has already apologised twice and in person. I do not consider another apology is necessary.
33. Our Guidance recognises a complainant may not want remedial action being taken at their home. In these circumstances, we may consider recommending a financial remedy equivalent to the cost of taking remedial action. We will not consider a remedy for loss of amenity where remedial action is possible.
34. Therefore, it is open to Mrs X to reconsider the replacement window and engage with the Council about potential window types for her needs. This would allow her to make a fully informed choice. If she later decides to decline, the Council has said it would offer the financial equivalent remedy as above. I am satisfied this is appropriate.

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Decision

35. I find fault causing injustice. I am satisfied the Council has offered a suitable remedy, and I do not recommend anything further. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman