The Ombudsman's final decision
Summary: Mr B complained about the Council’s decision to grant planning permission for an outbuilding in a neighbouring garden which includes a window facing his garden. He said the window causes an unacceptable degree of overlooking. There was fault in the Council’s failure to respond to Mr B’s complaint but not in how it considered the planning application.
The complaint
I refer to the complainant as Mr B. He complained about the Council’s decision to grant planning permission for an outbuilding in a neighbouring garden which includes a window facing his garden. He said the window causes an unacceptable degree of overlooking.
The Ombudsman’s role and powers
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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(i), as amended)
How I considered this complaint
I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
What I found
What happened The Council granted planning permission for a garden room. The structure is located about 3.5m from the boundary with Mr B’s garden and about 20m from the side of his house.
The Council officer’s report on the application referred to Mr B’s objections and referred to the relationship between the properties. They commented that Mr B’s private garden space was at the rear of his property, not the part at the side of the house nearest to the proposed garden room. They said the garden room was not considered to be a habitable room and the glazed panel in the elevation facing Mr B’s garden was at ground floor level. They concluded it would not increase the degree of overlooking and that it was in accordance with the development plan and there were no other material considerations.
Mr B complained to the Council about the decision. He referred to when the Council granted planning permission for the house where the garden room is sited. That referred to the need to protect neighbouring properties from unacceptable harm to their residential amenities. He considered the building and window facing into his garden contravenes that policy. He said the Council was wrong to assume the area was not their private garden area as they use that part of the garden much of the time.
The Council responded at stage one of the complaint process. The officer commented that they did not agree with the assessment by the case officer that there would be no increase in overlooking. They said that during the winter when there would be less intervening vegetation screening there would be an element of overlooking. But they then went on to refer to other factors. These included the amount of garden that would be affected by the potential overlooking and that it was not a patio area close to the house. And that there would be some degree of overlooking from the windows in the existing house and from when people were in the garden. They concluded that the garden room would not cause an unacceptable degree of overlooking. So they did not consider the decision to grant planning permission was incorrect.
Mr B was not satisfied with the response. He said it was not correct to say only a small part of his garden was overlooked from the window. He said that it overlooked most of their garden and the area that was most used. He also commented that he thought the comments about the windows in the existing house giving a degree of overlooking were irrelevant as they were much further away. And that a comparison to the possibility of overlooking from people using the garden were not fair as that was quite different to someone using the room.
Analysis Our role is to consider whether the Council considered the application properly and took into account all the factors it should. We are not reconsidering the application and coming to our own view on whether it was acceptable.
All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise. Material considerations include issues such as overlooking, traffic generation and noise. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
The Council’s policy on overlooking of gardens says that care should be taken to protect neighbour’s garden areas from overlooking. This particularly relates to the area immediately outside the rear of the house, such as patios, which are often used as a sitting out area.
It defines a habitable room as living rooms, dining rooms, kitchens, studies and bedrooms. The Council does not consider that the proposed garden room falls within any of the room types identified as habitable rooms. I do not consider there is any fault with the Council’s view that it is not a habitable room. Mr B has commented that if the approval is based on the room not being a habitable room then the Council should have imposed a condition limiting the use of the room. The planning permission is for a garden/exercise room. If there was any significant change then the Council would have to consider whether that was a breach of planning control. There was no requirement for the Council to impose a condition as the use is specified in the planning permission.
The Council commented that although the reviewing officer disagreed with the assessment of the case officer that there would be no increase in overlooking they still considered it was acceptable. The Council commented that its policy does not require there to be no loss of privacy but that any loss is at an acceptable level. In conclusion it did not consider the proposals were contrary to any of the relevant policies.
I do not consider there is any fault in the Council’s reasoning. It considered the degree of overlooking from the window but considered it to be acceptable. The case officer visited the site and took photos.
Mr B referred particularly to comments made when the planning application for the development of houses was carried out which said that neighbours should be protected from unacceptable harm to their residential amenities. This statement reflects the general planning principle that the impact of development on neighbouring properties must be considered and it should not have an unacceptable impact. This is also what the Council’s policies are reflecting. But the key point is that there is a judgement to be made about the degree of impact. The Council has shown why it considers the degree of impact on Mr B’s garden is acceptable. I do not, therefore, find fault with the Council’s decision.
When Mr B complained the Council responded at stage one of its complaint procedure. When Mr B asked to take his complaint to the next stage it was overlooked even though Mr B had chased for a response. The Council also did not pick up that it had overlooked the request when we asked whether Mr B had completed the complaint process.
Agreed action
The Council will apologise to Mr B for the failure to respond to his stage two request. It will do so within one month of the final decision.
Final decision
There was fault by the Council in failing to respond to Mr B’s request to escalate his complaint.
Investigator's decision on behalf of the Ombudsman