The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council failed to notify the complainant about her neighbour’s planning application, and that it failed to properly consider the impact on her amenity. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault in the neighbour notification process or the way the Council determined the application, and it has already provided a satisfactory response to the complaint.
The complaint
The complainant, whom I refer to as Mrs X, says the Council did not notify her about her neighbour’s planning application, and it has failed to properly consider the impact of the development on her residential amenity.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide: there is not enough evidence of fault to justify investigating, or we could not add to any previous investigation by the organization.
(Local Government Act 1974, section 24A(6)) And we may also decide not to start an investigation if we are satisfied with the actions an organisation has already taken in response to the complaint. (Local Government Act 1974, section 24A(7), as amended) When considering decisions on planning applications, we consider whether there was fault in the way the Council made its decision. If there was no fault in the decision making, we cannot question the outcome. If there is evidence of fault, we will consider if this is likely to have affected the planning outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council, which included their complaint correspondence.
I also considered our Assessment Code, and information about the planning application on the Council’s website.
My assessment
Neighbour notification The Council has provided extracts from its database to demonstrate a neighbour notification letter was created for Mrs X’s property. There is no requirement for these letters to be sent by recorded delivery. I accept Mrs X says she did not receive her letter, but this could be because Royal Mail failed to deliver it. We cannot hold the Council responsible for such an error, and I have no other independent means of establishing why Mrs X did not receive her letter.
With reference to paragraph 2 above, we will not investigate Mrs X’s concerns about the neighbour notification process.
Impact on residential amenity Side window Mrs X says the Council failed to properly consider the impact of an obscure glazed, side window (serving a cinema room) on her amenity, as it will allow views into her bedroom windows.
In responding to the complaint, the Council said that given the occasional use of the room, and the distance and angle between the window and the rear elevation of Mrs X’s property, any loss of privacy was unlikely to be significant. However, the Council said it would have been preferable to require this obscure glazed window to be non-opening too, and apologised for the omission of such a condition. As a token of goodwill, the Council offered a without prejudice payment of £350. It has also encouraged the neighbour to hang the window so that it opens away from the rear elevation of Mrs X’s property.
In my view, the Council has provided a very reasonable response to this part of Mrs X’s complaint. I recognise it has concluded, in hindsight, that a more restrictive condition would have been preferable. But in my view, there is limited evidence of fault in the way this part of the development was originally considered. The case officer had visited the site, and the delegated report specifically refers to the relationship between the proposed, obscure glazed window and Mrs X’s property. The case officer was entitled to reach a professional judgement that the proposal was acceptable, even if other officers might have reached an alternative conclusion.
With reference to paragraph 3 above, the Ombudsman will therefore not investigate this part of the complaint as we are satisfied with the actions the Council has already taken.
Rear balcony I appreciate Mrs X also disagrees with the Council’s conclusion that the proposed balcony would not have a significant impact on her rear garden/patio area. But the Ombudsman does not provide a right of appeal against that decision. Rather, we consider if there is evidence of fault in the way it was made. As already noted, the case officer had visited the site, and concluded that the relationship of the development to neighbouring dwellings and private open space was such that visual dominance, loss of light, overlooking and overshadowing impacts all fell within acceptable parameters. The subsequent complaint responses further explain that as the balcony has solid walls to the sides, it would not create overlooking of the more private areas of Mrs X’s garden to a degree that would have justified refusing the planning application.
I find there is insufficient evidence of fault in the way the Council assessed this part of the scheme to justify the Ombudsman starting an investigation.
Final decision
We will not investigate Mrs X’s complaint because there is insufficient evidence of fault in the neighbour notification process or the Council’s assessment of the proposal, and the Council has already provided a satisfactory response in relation to the side window.
Investigator's decision on behalf of the Ombudsman