The Ombudsman's final decision
Summary: We found fault by the Council on Miss J’s complaint about it failing to properly consider her neighbour’s planning application for an extension. A report wrongly referred to her side windows having obscured glass and wrongly concluded they were all non-habitable rooms. It failed to identify an error in the plans showing a first-floor side facing window or assess its impact when shown on the proposed plans. There was no significant injustice to Miss J from the fault.
The complaint
Miss J complains about the Council failing to properly consider her neighbour’s planning application for an extension; as a result, her amenities will be affected as she will lose privacy from overlooking within her home and in her garden, as well as losing light to ground floor rooms.
The Ombudsman’s role and powers
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) 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) If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered all the information Miss J provided, including photographs of her house and its relationship to her neighbour’s house, along with the Council’s response to my enquiries. I sent a copy of my draft decision to Miss J and the Council. I considered their responses.
What I found
Miss J’s neighbours applied for planning consent to extend their property to the rear above their kitchen. She is unhappy with the way the Council dealt with the application when it granted consent. She complains the report contained the following inaccuracies when it said: Her kitchen and lounge windows had obscure glass in them: She provided photographs showing none of these windows contain obscure glass; These windows were not to habitable rooms because of the obscure glass: Miss J says they are to habitable rooms. She sent photos showing her kitchen and lounge window. The kitchen window directly faces the neighbour’s existing kitchen window. Neither the lounge nor bedroom window face the property. They face down her own garden.
Given the separation distances, the proposal would not increase levels of overlooking or overshadowing/loss of light: She says their lounge will be affected by overlooking and loss of light; and The proposal would install a window at the rear of the extension and noted there was already an existing window at first floor which gave views into neighbouring gardens: Miss J complains the report failed to point out there was no first-floor existing side window facing her property as shown on the plans submitted. She says the Council missed this error in the plans and has now granted consent for the window which will be 1.8 metres from their boundary. The new first floor side window will directly overlook her kitchen and patio area. Miss J provided a photograph confirming no existing first-floor side window.
The photographs Miss J sent also show the neighbour’s property has a ground floor dining room side window facing her blank wall.
She says the extension will overshadow and reduce light to her amenity areas both inside the house and in the garden area. The new bedroom side window will overlook her patio area and kitchen, causing loss of privacy.
The Council accepted it made mistakes when assessing the impact of the proposal of her amenities. It apologised for inaccuracies in the planning officer’s report. It accepted the report was wrong to say she had obscured glass in her side elevation windows which shows they do not serve habitable rooms. It also noted there was no solid boundary treatment between her garden and the neighbours’.
The planning officer confirmed taking photographs during a site visit. The officer made no written note, relying later on the photographs taken. The officer accepted there was a failure to identify the error in the plans showing an existing first floor side window which did not exist. It was only shown on the existing floor plans, not the elevational drawings but was showing on the proposed floor plan and elevation as an addition to the existing building, not in the proposed new extension.
The report noted there ‘would be a window installed in the rear elevation wall of the extension that would serve a bedroom’. It also said there was a first-floor level bedroom window with views into neighbour gardens. This was not the side first floor window wrongly shown on the floor plans.
The planning officer also noted the new first floor window in the extension above the existing kitchen window will contain obscured glass as it is to a bathroom. I note this was required by way of condition in the planning consent granted.
The new first floor window in the existing part of the house will face on to Miss J’s blank side wall.
The report considered the impact on light from the proposal on Miss J’s property. It noted it was likely to cause additional overshadowing/loss of light through its increased scale and mass, taking account of the sun’s path. It mentioned Miss J’s side windows being obscured glass.
The Council confirmed it does not have a supplemental planning document giving advice on assessing the impact of a development on loss of light. Previous guidance was not used since it adopted the Island Plan Core Strategy in 2012. It relies on officer judgement to assess this impact as do assessments of other issues, such as landscape character, for example. Its officers are trained in how to assess the impact a development might have, and cases are always checked by a team leader before they are decided.
In terms of overlooking, the report noted the separation distance and roof slope meant it would not increase overlooking to a harmful degree. Any impact on privacy and light would not be to habitable rooms. Nor would it result in an overbearing impact.
The Council argued Miss J’s kitchen is not a primary habitable room. A habitable room is usually one that provides living accommodation, such as a living room or dining room, for example. It does not usually include kitchens or bathrooms.
My findings
I make the following findings on this complaint: The planning officer’s report wrongly said Miss J’s windows on her side elevation had obscured glass. The windows had clear glass. This is fault. I am not satisfied this error caused Miss J an injustice. This is because I consider it would not have altered the final decision to grant consent in terms of overlooking and privacy, which I deal with below.
Only Miss J’s kitchen directly faced the neighbouring property. The only new window directly facing her kitchen is the first-floor bathroom window which must contain obscured glass.
The report also wrongly concluded the obscured glass meant the windows on her side were not to habitable rooms. While the officer was correct that the kitchen was not a habitable room, the lounge and bedroom windows were habitable windows. This amounts to fault. I am not satisfied this caused Miss J an injustice. This is because as these do not face the neighbouring property, there is no direct overlooking of them.
The floor plans submitted show a first-floor side facing window on the existing building. Photographs taken by the planning officer and Miss J confirm there was no existing window. This was an error and should have been identified by the officer. This is fault.
The proposed plans showed a side elevation window at first floor, to an existing bedroom. On the elevation plan, this window, and the new bathroom window on the proposed extension, are highlighted blue. This should have alerted the officer they were both new windows.
The report does not consider the impact of this new side facing window on Miss J’s amenities. There is no mention of the window at all which may be because the officer thought this window already existed. This was an important omission as the neighbour now has consent as it is shown on the approved plans. I am satisfied the failure to consider the impact on Miss J’s amenities is fault.
I am not satisfied this failure caused Miss J a significant injustice. It is at an oblique angle to her kitchen window and the angle down towards it is steep. I am satisfied as her kitchen is not a main habitable room, any impact from overlooking from this window is much less than if it had been to a habitable room. The window is also at an angle to her patio area just outside her kitchen. I consider there was a degree of overlooking of this area from the existing rear facing bedroom window on the neighbouring property.
I am satisfied the report properly considered the potential impact on her property from any massing effect as this was referred to directly in it.
I am also satisfied the report properly assessed the potential impact on light to Miss J’s property for the same reason.
Final decision
I found fault on Miss J’s complaint against the Council, but this caused no significant injustice.
Investigator's decision on behalf of the Ombudsman