Summary: Ms X complains the Council granted planning permission for a development next to her home without considering local planning policies. There is fault in the way the Council considered the planning application. It failed to properly consider the impact on Ms X’s home and a local historic building. The Council should apologise to Ms X and pay £250 to recognise the unnecessary time and trouble this caused her.

The complaint

1. Ms X complains the Council has granted planning permission for two new homes on land next to her home without considering the impact on them.
2. Ms X says the new properties will look directly into two bedrooms and occupants of the new properties will be able to see directly into her kitchen though her front doorway. Ms X say the properties are effectively three storeys high which means they are overbearing.
3. Ms X says the Council has also approved a landscaping condition relating to the development before the deadline for comments from the public. This means they have been unable to comment on the landscaping plan and so the Council has not properly considered whether it is effective in providing screening.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with a council’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

7. I have spoken to Ms X and her neighbour about this complaint. I have considered the information they have provided to the Ombudsman.
8. I have also considered information about the development which is available to the public on the Council’s website.
9. I have considered the Council’s response to my enquiries.
10. Ms 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

Planning law

11. All decisions on planning applications must be made in accordance with a council’s development plan, unless material considerations indicate otherwise.
12. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.

What happened

Background

13. In 2018 the Council received a planning application for two new homes on land opposite her home. Ms X’s home is separated from the land by the width of her driveway. The properties are to be semi-detached. The rear of the properties would face towards the front of Ms X’s home.
14. The Council granted planning permission for the properties. The Council placed a condition on the planning permission requiring some first floor windows to be obscurely glazed. These windows look towards Ms X’s home. The Council said this was “in the interests of protecting the residential amenities of adjacent dwellings”. Other windows which face Ms X’s home were not required to be obscurely glazed.
15. Ms X and her neighbour say the Council has failed to properly consider the planning application for the new homes. They say the Council:
• Failed to take account of its standard separation distances between dwellings. The Council’s minimum distance between facing windows is 21 meters but there is only 19.5 meters between windows on Ms X’s home and the windows of the new properties.
• Failed to take account of local planning policies designed to protect the character of the area.
• Failed to protect a historic building which sits on land next to the site and failed to consider the impact of the proposed development on the historic building.
• Approved landscaping plans without giving local residents an opportunity to comment.

Distance between Ms X’s home and the new properties

16. The Council’s officer report considered the relationship between Ms X’s home and the new properties. It said:

“The proposal is considered to create an acceptable relationship to adjoining properties in respect of residential amenity… Certain windows [facing Ms X’s property] would need to be obscure glazed to protect existing residential amenity… [another window] would remain non-obscure glazed although this is set further north from [Ms X’s property] and it is not considered that this room would give way to significant losses of privacy to the nearest residential properties. There is a slight breach of the guidelines… but taking into account the angle of outlook from the window, the proposal would not be harmful on this basis”.

17. Ms X has produced photographs of the development in relation to her property. The Council has also produced photographs taken by an officer as part of a site visit prior to planning permission being granted.
18. Having considered the plans and the photographs I cannot understand why the Council has required some windows which face Ms X’s property to be obscurely glazed and others which face her property to remain non-obscure glazed. Ms X’s bedroom windows which look towards the development look directly towards the point where the semi-detached properties are joined. Therefore, the angle of outlook is uniform on both sides and so she is equally affected by all first floor windows and one second floor window. The angle of outlook from Ms X’s windows was illustrated on plans submitted by the applicant.
19. In its response to my enquiries the Council said the officer may have been trying to protect part of Ms X’s outdoor space from overlooking. However, this seems unlikely as overlooking of outdoor space is rarely given significant weight in planning. It seems more likely that the Council misinterpreted the plans and the relationship between Ms X’s home and the new properties. This is fault.
20. The Council’s design guide says there should be at least 21 meters between habitable room windows. The distance between Ms X’s windows and the new properties is 19.5 meters. This is in breach of the Council’s policies.
21. If the Council had properly considered the plans it may have asked the developer to move the properties 1.5 meters further away from Ms X’s home. This would have made the development acceptable in terms of the Council’s policy on distances between residential properties. A difference of 1.5 meters is unlikely to have been noticeable when viewed from Ms X’s home and so I cannot say that the Council’s failure to properly consider the relationship between the properties has caused her an injustice in terms of the impact on her residential amenity.
22. However, the Council’s failure to properly address this issue has caused her unnecessary time and trouble.

Protecting the character of the area

23. The area where Ms X and her neighbours live is covered by a specific Council planning policy which seeks to protect its character.
24. The Council considered the policy within its officer report. The report said the guidance “acknowledges that semi-detached properties are evidence in [the area] and form part of the general character of the area”.
25. The guidance says “housing in this area is perceived as medium-to-large, detached single-family homes. The only semi-detached houses are in the south of the area and are of a modest nature”. The development site is in the north of the area.
26. However, elsewhere the report says the “proposed dwelling is of a good design” and “well screened”. The report says that due to this and the fact the properties are set back within the plot the “sylvan character of the area would therefore be upheld”.
27. I can see no fault in the way the Council has considered the development against the planning policy which seeks to protect the character of the local area. Although the report could have more accurately reflected the wording of the policy in relation to semi detached properties there is no fault in the Council’s overall assessment of the appearance of the development in relation to the rest of the area.

Impact of the development on a nearby historic building

28. Ms X and her neighbour as well as other parties commented on the impact of the development on a nearby historic building. The Council’s officer report summarised their objections but later in the report said there "are no heritage issues raised that could substantiate a reason for refusal”.
29. In its response to complaints about the development the Council accepted that “it is a weakness in the report and it could have said more about why there were ‘no heritage issues’”.
30. The Council did not seek comments from it’s heritage officers as part of its consideration of the application.
31. The Council says the historic building is not listed. However it accepts concerns were raised about the impact of the development on the historic building. This means the Council should consider the impact the development might have on the building.
32. The Council has consulted its conservation officers in relation to planning applications for the historic building. I cannot understand why the Council would not, therefore, seek comments from its conservation officers for development on land next to the historic building.
33. It is not sufficient for the Council to say in its officer report that there are no heritage issues. It must explain why it believes this to be the case. The lack of any analysis of the impact of the development on the historic building is fault.
34. I must consider whether this has caused an injustice to Ms X and her neighbour. If the Council had properly considered the impact it is likely it would have consulted with its conservation officers. However, it seems unlikely this would have resulted in a refusal of planning permission for the development, although it may have resulted in amendments to the plans and or landscaping.
35. The Council would have been considering the impact on the historic building rather than Ms X and her neighbours’ properties. Therefore, the failure to consider the impact of the development on the historic building has not caused them an injustice in terms of an impact on their residential amenity. However, the Council should still seek to protect the historic building from any potential harm and I have made a recommendation to address this.
36. The Council’s failure to address this issue properly has also contributed to the unnecessary time and trouble Ms X has been caused.

Approval of the landscaping condition

37. The Council has not received an application to discharge the planning condition relating to landscaping on the site. The Council has received an application to discharge conditions regarding land levels and tree protection amongst other things. The Council approved the details for these.
38. Ms X and her neighbours say the conditions were approved before the deadline for comments passed. The Council says a deadline for comments was added as its system requires a date to be put in but there is no requirement in law for it to notify residents about applications to discharge conditions.
39. There is no requirement in law to notify neighboring properties about an application to discharge conditions on a planning permission. However, the Council did advertise a date by which comments could be received about the condition discharge application on its website. This gave Ms X and her neighbour a reasonable expectation that comments could be made and would be considered. The Council should not have made a decision before the advertised deadline.
40. I understand the Council’s systems require it to input a date by which comments should be made. The Council should consider setting a shorter deadline or finding a way of alerting local people that decisions on these applications may be reached before the deadline for comments has passed.
41. I cannot see that any of the matters approved in the condition discharge application have a direct impact on Ms X or her neighbour so this has not caused them an injustice in terms of an impact on their residential amenity.
42. However this has contributed to the unnecessary time and trouble Ms X has been caused.

Agreed action

43. The Council has agreed to take the following action to remedy the injustice caused to Ms X as a result of the fault I have identified:
• Write to Ms X to apologise for the fault I have identified.
• Pay Ms X £250 to acknowledge the unnecessary time and trouble she has been caused as a result of the fault.
• The Council should also ask its conservation and heritage officer to provide their comments on the development in terms of the impact on the historic building. If the officer identifies any issues the Council should consider whether it might be possible to negotiate amendments to the plans or to mitigate the impact of any harm through any conditions which have not yet been discharged.
44. The Council should take this action within four weeks of my final decision.
45. The Council should also take the following action to improve its services:
• Remind officers of the need to consult with conservation and heritage officers where appropriate.
• Remind officers of the need to records their reasons for reaching a view on material planning considerations, particularly where these have been raised in comments made by members of the public. The Council may find the Ombudsman’s guidance on officer reports useful. This is available on our website.
• Explore whether it is possible to advertise on the Council’s website that condition discharge applications may be determined before the deadline for comments has passed. If this is not possible the Council should ensure decisions are not taken before the deadline has passed.
46. The Council should take this action within three months of my final decision.

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Final decision

47. I have completed my investigation into this complaint. This is because I have found fault causing injustice and the action I have recommended is a suitable way of remedying this.

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Investigator's decision on behalf of the Ombudsman