The Ombudsman's final decision
Summary: Ms X complains about the Council’s decision to grant planning permission for a development which negatively impacts on her home. There was no fault in how the Council decided the application or dealt with issues that arose during construction.
The complaint
The complainant, who I refer to as Ms X, complains that the Council did not properly consider the planning application for a new house behind her home. She says: It did not consider the changes to the communal lane used to access garages. The new development has left the access lane much narrower so two vehicles cannot pass; The plans were inaccurate and included land owned by neighbours and not the applicant. This means that the actual plot size is smaller than shown on the plans and the development does not meet the requirements for parking, overdevelopment and garden space; The Council did not properly consider the loss of privacy from overlooking. Development on the neighbouring plot was refused on this same issue and so there is a lack of consistency; and The Council has not enforced a planning condition to ensure access to the garage and parking during construction.
Ms X says the development has a negative impact on her property as she is overlooked and has lost a view she previously enjoyed.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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)
How I considered this complaint
I considered the information provided by Ms X and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken their comments into account before issuing my final decision.
What happened The law and policy All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
The Council’s development plan says that new buildings will be permitted provided they are well designed and are in scale and character with neighbouring buildings.
The Council’s Supplementary Planning Guidance sets out in more detail how the development plan will be put into practice. Although the development is not an extension and is a separate dwelling on its own plot, the Council says its most relevant guidance is its guidance on housing extension design. This says: The Council considers a garden to a house should be a minimum of 50 square metres, and there should be ten metres between the rear elevation and rear boundary. This is to protect the neighbour’s privacy.
A two-storey dwelling should keep a minimum distance of 21 metres between main facing windows. Differences in ground level may change the requirements.
Two car parking spaces are required for dwellings with two or three bedrooms. An extra space may be required for houses with more bedrooms, where it is in an area of high car ownership. A garage is a parking space.
What happened Ms X lives in a residential area. She and her neighbours have a private right of way from the road to garages on a plot of land behind her house, this is via a single-track un-made road. The land at the rear slopes down away from her home.
A developer applied to the Council for planning permission to build a house on part of the plot behind Ms X’s house. The Council refused planning permission due to concerns about overlooking and the impact on privacy.
Another developer applied for planning permission to build a detached four-bedroom house on an adjacent part of the same plot: essentially an infill development on land between two residential streets. Several neighbours objected. In summary the main grounds for objection were: it would impact on the privacy of, and be overbearing to several neighbouring properties, including Ms X’s home; concerns for highway safety as the new house would be accessed via the same track used for the garages and this is a busy route for cars and pedestrians, particularly to a local school; concerns that the new house would change access to the garages during construction and ongoing once the house is built; it is too large and not in keeping with other properties in the area; and the site boundary is drawn wrongly, the plot is smaller than shown, and part of the plot belongs to another neighbour.
The Council was clear that boundary disputes are not a material planning consideration, but it got copies of the relevant title deeds to make sure the application was accurate. These tallied with the site plan and so the Council was able to assess the impact of the development based on the dimensions shown on the plan.
There was no fault in how the Council dealt with the question of whether the whole site was owned by the applicant. Having established that the title deeds reflected the application site, the Council was correct to rely on this. Any boundary dispute is between the landowners and is not for the Council to determine. In any event, the Council has confirmed that even if the disputed area is excluded, the house has sufficient amenity space and parking provision to meet the policy requirements.
The Council’s planning report to the committee recommended permission be granted. It said: this site slopes downwards so the change in level is approximately two metres, and it is surrounded on all sides by rear gardens of neighbouring properties. The area is characterised by two-storey, semi-detached and detached houses with spacious gardens, with similar materials as the new house. The new house would have a two-metre boundary fence similar to neighbouring boundaries; a planning application for a dwelling on an adjacent part of the plot had been refused, but that planning policy had changed since then; it summarised the objections; the house would contribute to housing supply in accordance with the Council’s policy; it set out the Council’s assessment of impact on neighbouring properties. In particular, to Ms X’s house. The report says that there will be over 21 metres between the rear elevations, and that with this distance and the fact that the existing houses would be higher than the new house, there was little potential for overlooking; and the plans allow for two parking spaces and for cars to enter and leave the road in forward gear. The existing two spaces on this site are being relocated and so the new house will not mean there will be an increase in vehicles accessing the site.
The Council granted planning permission.
Ms X complained to the Council. She said the new house would cause overlooking, a loss of privacy, the loss of her view and the devaluation of her own property. She queried why permission had been given when earlier applications had been refused.
The Council addressed her concerns and acknowledged the development would have an impact on her. However, it explained how it came to its decision. The Council’s planning report shows that it understood the site and the proposed development. It took into account the impact on Ms X and her neighbours in terms of privacy and overlooking, and considered whether the development was overbearing.
In addition, the Council visited the site and measured the new building against the rear boundary with a tape measure. It has concluded that the new house is in the correct position. The distance from new house to the rear boundary is slightly less than the required ten metres (around nine metres). But it is correct in every other respect and the Council would not have refused planning permission on this slightly shorter separation distance.
Ms X says the Council is inconsistent because it refused planning permission on the adjacent plot. The Council has explained that this was because the distances between the rear of the dwelling and the rear boundary was only 5.5 metres. This meant the dwelling would be an overdevelopment of the plot. The Council refused it on that ground.
Ms X has questioned whether the Council is correct to say the development is in keeping with the character of the area. It says this is characterised by two-storey, semi-detached and detached houses with spacious gardens. Ms X points out that there are also bungalows on the streets immediately surrounding the site and no detached houses. There are bungalows in the surrounding streets, however, the Council is not wrong to state that neighbourhood is characterised by detached and semi-detached two-storey houses. As such, it is for the Council to judge whether the new house is in keeping with the area.
Ms X says the new house overlooks her garden and the windows are only 20 metres from her own. The Council says the approved scheme maintained a distance of 21 metres between facing windows as required by policy. However, a slight reduction of the distance is not likely to have warranted refusal. Ms X’s privacy is affected, but the Council has decided this is not unacceptably so. It was able to properly assess this from the plans and its site visits.
Ms X says the development has narrowed the access lane to the garage. The plans do not suggest this will be the case, and the Council’s assessment is that drivers can still access and egress the lane in forward gear. In any case, the access is a private legal right of way and as such is not a planning consideration. The planning permission does not allow the applicant to narrow this. If the right of way has changed, then residents need to approach the landowner about this. There is no fault in how the Council has handled this aspect.
Although the right of access to the garage is private, the Council has correctly identified its role to ensure the development does not impact on highway safety. Ms X and other residents have reported that the builders have obstructed the access and causing them to reverse back out onto the public highway. The Council addressed this issue by requiring the applicant to submit a site plan and statement showing how they would manage the site in terms of delivery and storage of materials.
Ms X and her neighbours reported to the Council that the access to the garage was sometimes blocked, once by earth mounds when foundations were dug out, meaning that some residents could not get their car from their garage, and at other times by works vehicles. The Council’s position is that access to the garages is a private right of way and so an obstruction is an issue between the landowner and those with the right to use it. However, the Council also recognised that it must have regard to highway safety and that a car seeking to access the garage and finding the lane blocked, would have to reverse onto the public highway. The residents said this was dangerous because the road is a main route to a local school for pedestrians and cars.
The Council asked the applicant how it was unloading and storing materials. He sent photographs showing this and that he was not obstructing the access way such that drivers would need to reverse back onto the public highway. The photographs showed that the applicant was providing and using the storage areas shown in the plan submitted in relation to the planning condition.
I appreciate that the photograph only showed the site on that particular day and was supplied by the applicant and so I might say it was unlikely to show obstruction of the access or any impact on highway safety. The residents might have expected the Council to visit the site itself to check this. However, the applicant has shown they have provided the storage areas. The Council approved the site plan and has established that construction can take place without impacting on highway safety. As such there would not have been grounds to stop construction or refuse the planning application. I would however expect the Council to follow up any further reports of obstruction made by residents.
Summary of analysis I understand Ms X has been affected by the development which has taken place. However, we are not an appeal body and it is not our role to question a decision a council has made if it has properly followed its procedures and considered the relevant information and evidence.
There was no fault by the Council. It properly considered the objections, including that there was a boundary dispute, and the impact on Ms X. The Council cannot give permission for the applicant to alter the private right of way by which Ms X and her neighbours access the garages. The Council approved the site plan and discharged the condition to ensure that the access is not blocked in such a way as it would impact on road safety. It should continue to respond to any further concerns about this.
Final decision
I have completed my investigation. There was no fault by the Council.
Investigator's decision on behalf of the Ombudsman