Summary: Mr D complains about the way the Council has dealt with planning matters relating to a development behind his home. There was fault in the way enforcement was undertaken which has caused uncertainty. To remedy this, the Council has agreed to re-visit the site. If a breach is found, Mr D may come back to the Ombudsman to consider if there is any unremedied injustice.

The complaint

1. Mr D complains about the way the Council has dealt with planning matters relating to a development behind his home. In particular he says the Council failed to consider the impact of the development on him, has allowed a development that does not comply with its guidance, and has failed to enforce against a breach of the 25-degree rule.
2. Mr D says as a result, the development is completely overshadowing and destroying the aesthetics, view, right to sunlight, and value of his property.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)

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How I considered this complaint

6. I spoke to Mr D about his complaint and considered the information he sent and the Council’s response to my enquiries.
7. Mr D’s concerns had not been raised through the Council’s complaint procedure. However, I exercised discretion to investigate as the Council had had an opportunity to respond to them.
8. Mr D and the Council had an opportunity to comment on two draft decision statements. I considered any comments received before making a final decision.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
10. Material planning considerations include things like access to the highway and the impact on neighbouring amenity. Planning considerations do not include things like views over another’s land and the impact of development on property value.
11. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their local plan policy along with other material planning considerations.
12. Councils' case officers need to consider the proposed development. The case officer's report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
13. A report should help show a council took proper account of key material planning considerations. The courts have held the report does not need to be perfect. Its intended audience is the parties to the application (the council and applicant) who are familiar with the issues. The report does not need to include every possible planning consideration, just the main, controversial issues.
14. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers, as set out in delegation schemes in the council’s constitution.

Daylight and the 25-degree test

15. There is no “right to light” in planning terms. Easements of light (for which the term “rights to light” is a synonym) are private property rights. An easement of light is a right to light through a window, where that light has passed over a neighbour’s land. Not all properties benefit from easements of light but they generally apply to buildings which have received natural daylight for more than 20 years. If a new development diminishes the light through that window to such an extent that it causes a nuisance, the property owner may have the right to take legal action against the developer.
16. The planning system gives protection but not rights. Local planning authorities consider the effect of new buildings upon existing structures, including the impact on light. The Council has a planning policy, SPP Policy DM D2, which states that proposals must be designed to ensure that they would not have an undue negative impact upon the amenity of neighbouring properties in terms of natural light (sunlight and daylight), outlook, privacy, noise, visual intrusion and quality of living conditions.
17. When considering planning applications, councils may use the daylight and sunlight tests set out in the Building Research Establishment (BRE) document “Site Layout Planning for Daylight and Sunlight: A guide to good practice (2011)” to assess whether the property will have, or may lose, adequate natural light.
18. The BRE guide gives two rule of thumb tests (the 45-degree and 25-degree tests) which determine whether further detailed daylight and sunlight tests are required, but they cannot be used to assess the likelihood of the property suffering a legal right of light injury. These rule of thumb tests apply only to the consideration of diffuse daylight and sunlight to windows of habitable rooms.
19. To assess the 25-degree angle, the BRE guide states that the procedure is as follows: “Measure the angle to the horizontal subtended by the new development at the level of the centre of the lowest window. If this angle is less than 25 degrees for the whole development, then it is unlikely to substantially affect the diffuse daylight enjoyed by the existing building. If, for any part of the new development, this angle is more than 25 degrees, a more detailed check is needed …”
20. If a proposed development does not comply with the 25-degree test, it may be less likely to receive planning permission. However, non-compliance with the test does not mean officers must refuse an application. The test may be one part of the planning officer’s assessment of levels of planning harm caused by a proposed development. Each application should be judged on its own facts and circumstances, and officers retain their ability to use their professional judgement.

Small sites and backland sites

21. Planning policy H2 (Small Sites) of the London Plan 2021 applies to application sites below 0.25 hectares in size. It includes the Small Sites Toolkit 2021 which provides design guidance for development of small sites. Section 3.6 of the toolkit says backland sites (where the buildings are not fronting the street) “require more careful consideration of neighbouring boundaries, views and massing to enable development.”

Planning enforcement

22. Councils can take enforcement action if they find planning rules have been breached. A breach of planning control is defined as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
23. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says: "Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control." (National Planning Policy Framework July 2018, paragraph 58)
24. If an alleged breach is reported, councils will normally visit the site to establish whether a breach of planning control has occurred.

What happened

Granting of planning permission

25. In 2022 the Council considered a planning application for a development on land at the rear of Mr D’s property. The application was considered by a planning case officer, who wrote a report. The case officer’s report included:
• a description of the proposal, the site and its previous uses;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance; and
• an appraisal of the main planning considerations, including the concerns of objectors and the impact on neighbours’ amenity.
26. The report refers to the small sites London Plan planning policy H2 and the Small Sites Toolkit 2021. It considers the impact of the development on neighbours, including Mr D, in terms of overlooking, privacy, design, massing, scale, height, appearance, siting and layout. It says:
• The separation distances would be sufficient (20.5m and 25m).
• The first floor has no windows facing the surrounding terraced houses.
• The proposed additional floor to the main building on site would be set in from the sides and not harmful in planning terms.
• As such, there would be no overlooking and loss of privacy to the surrounding terraced houses or the proposed residential units.
• One building would have a cat-slide roof design with eaves of a low height adjacent to the rear boundary of Mr D’s property. Officers are satisfied that this mitigates the impact of the proposal and would not be overbearing or cause a harmful sense of enclosure to neighbouring properties.
• Officers consider that the proposal makes effective use of the land by positively and appropriately relating to the siting, rhythm, scale, density, proportions, height, materials and massing of surrounding buildings and existing street patterns, historic context, urban layout and landscape features of the surrounding area.
27. In relation to sunlight and daylight, it refers to the applicant’s daylight and sunlight report which assessed the impact on neighbours, including Mr D. The report concluded that the numerical values set out within the BRE guidelines relating to buildings receiving adequate daylight had been achieved and that neighbouring properties would still enjoy a good level of sunlight.
28. The applicant’s design and access statement contains a diagram showing there would be a line of sight at a 25-degree angle from the rear of the properties on Mr D’s road to above the development. The statement says the massing steps down towards the boundaries to ensure that the 25-degree line from the lowest habitable window of the neighbouring properties is not affected.
29. The report considered that the development was in accordance with the relevant policies and the officer approved the application, subject to planning conditions.

Planning enforcement

30. In February 2023 Mr D contacted the Council with concerns that the developer seemed to be erecting all buildings at the same height of the highest building, which was not in line with the plans, and that the line of sight from the rear of his property was more than 25 degrees. The Council replied that as the development was not yet complete, it could not take any enforcement action.
31. Mr D emailed the Council again in April 2023. He said the 25-degree line was not being achieved. He had measured the angle from the end of his property at the ground floor at mid-height and it was closer to 35 degrees. The Council opened an enforcement case, though it told Mr D it was unlikely it would enforce against this as it did not affect his day to day living amenity from habitable rooms and it was likely the development would be approved.
32. The Council visited the site. It took photographs from a neighbour’s garden. It also visited the development site and took measurements and photographs overlooking Mrs D’s property.
33. The Council wrote to Mr D on 13 July. It said it had found no breach of planning control. The new building was in accordance with the plans as it had a height of 6.58m (the approved plans were 6.76m). Mr D replied that this did not address his concern about the angle and came to the Ombudsman.
34. Mr D told us that the approved plans and the small sites toolkit guaranteed he should have a 25-degree viewing line from the end of his property, measured from 1 metre above the ground. This appeared not to be the case and the Council had not measured it. Mr D said no consideration was given to the neighbouring boundary when approving the application. Even if the development had been built according to plan, it was completely overshadowing his property, destroying its aesthetics, view, right to sunlight, and value. He considered it was in violation of section 3.6 of the small sites toolkit.

My findings

35. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. Nor are we an appeal body. We cannot assess evidence provided to the Council of alleged planning breaches and make judgements on them or decide if the Council should take enforcement action.
36. Our role is to determine whether there has been administrative fault in the way the Council made its decisions. If there was no fault with the decision making, we cannot question the outcome, regardless of whether a complainant disagrees with it.
37. I have firstly considered how the Council considered the impact on Mr D’s property when it granted planning permission in 2022.
38. The case officer's report considered the application against planning policies, consultees' responses and objections. It considered the impact on the amenity of existing properties, including Mr D’s, as set out in paragraph 26 above. The report then assessed these matters and concluded the impact of the development on Mr D’s living conditions in terms of loss of light, overshadowing or visual intrusion did not give planning grounds for the Council to refuse the permission.
39. I am satisfied that the Council had enough information about the application and properly considered the relevant planning issues when reaching its decision. There is therefore no fault in the way it determined the application.
40. I understand Mr D does not agree with the Council’s decision, but it is one the Council was entitled to make. The Ombudsman cannot question it without evidence of fault in the way it was taken.
41. Mr D complained the Council had not complied with section 3.6 of the small sites toolkit, which requires “more careful consideration of neighbouring boundaries, views and massing to enable development.” He says the toolkit does not show any back gardens with a three-storey development behind, as in his case. The toolkit is guidance that planning officers and developers should consider, but it is not a planning control that can be enforced against. Nor are councils required to refuse planning permission for developments which may not comply with their planning guidance. I have not found any fault in the way the Council considered the impact of the development on Mr D’s property, including in the way it considered the small sites toolkit.
42. Mr D says the line of sight angle from his property is greater than 25 degrees, and therefore not in line with the plans or guidance. He complains the Council has taken no enforcement action about this.
43. The 25 degree angle from Mr D’s home is shown in the developer’s planning application. It is a consequence of the height of the development and its distance from Mr D’s home. Therefore, if the development has been built in line with the approved plans, there should be a 25 degree angle but there is no planning condition stating there must be one.
44. The Council’s planning enforcement officer measured the height of the development and found it complies with the plans. In response to my first draft decision statement, the Council clarified it had measured the height of the building closest to Mr D’s home. However, to ensure there was no breach of planning control causing a higher than 25 degree angle, the Council needed to measure the adjacent building, which is taller. Therefore, there was fault in the planning enforcement visit. This causes some uncertainty as to whether there is a breach of planning control, which is an injustice to Mr D. I have therefore recommended the Council visit the site again to satisfy itself there has been no breach.
45. Mr D says building the development has resulted in movement of the ground underneath his property, causing damage to a wall. This is not a planning matter for the Council. Responsibility for building work and compliance with building regulations rests with building owners and builders; damage to property caused by neighbouring building work is a matter for private legal action by Mr D against the developer. It may be possible to obtain independent legal advice about this under his home insurance policy.
46. Mr D said the Council took 12 weeks to respond to his complaint. As I have said in paragraph 7, Mr D did not raise his concerns through the Council’s complaint procedure, rather he reported an alleged breach of planning control. It was therefore considered by the Council’s planning enforcement team. The Council has no deadline for how long it takes to investigate an alleged breach. There was therefore no fault.

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Agreed action

47. Within a month of my final decision, the Council’s planning enforcement team has agreed to visit the development to measure its height. If there has been a breach of planning control, Mr D may come back to the Ombudsman to consider whether there has been any further injustice.

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Final decision

48. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman