Summary: The Council was at fault only in providing inadequate advice when officers first became aware the extension Mr and Mrs J were building breached planning controls. But there was no significant injustice. It was unclear that firmer advice would have resulted in proposals that the Council could have approved sooner, and without Mr and Mrs J incurring costs for professional advice.

The complaint

1. The complainant, whom I shall refer to as Mrs J, complained about:
1. the Council’s failure to clearly advise her and her husband at an early stage that they needed planning permission to demolish their garage and build an extension to their home. This meant they did not apply for planning permission until the extension was complete, and they lost the opportunity to make amendments to the scheme that would have made it acceptable; and
2. when they resubmitted their planning application, the Council approved the scheme even though this had not changed. There was no reason, therefore, why the Council could not have approved their first application; and
3. they should not have had to spend a large sum of money on obtaining a professional lighting assessment in support of the second application. But the Council has refused to reimburse their costs

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What I have investigated

2. I have only been able to reach a view on parts a) and c) of Mrs J’s complaint. My reasons for not investigating part b) of the complaint are set out at the end of this statement.

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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 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

6. If we are satisfied with a council’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

7. I have considered what Mrs J told me, together with information available on the Council’s website and that provided by officers in response to my enquiries.
8. I have written to Mrs J and the Council with my draft decision and considered their comments.

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What I found

Legal and policy background

9. Permitted development rights are a national grant of planning permission which allow minor development without making a planning application. Each type of permitted development right has certain conditions and limitations. Those applying to household extensions are set out in Schedule 2, Part 1, Class A of the General Permitted Development Order 2015.
10. If a development does not meet the relevant permitted development criteria, it is a breach of planning controls and the local planning authority will need to consider the expediency of enforcement action. This will depend on the type and extent of any planning harm the unauthorised development may be causing. To enable it to make the necessary assessment, the authority will often ask the perpetrator of the unauthorised development to make a planning application.
11. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. Material considerations include issues such as the impact of proposed development on the residential amenity of neighbouring occupiers; for example, loss of light or privacy. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

What happened

Planning enforcement action June - September 2018

12. Following a report from a member of the public about unauthorised building works, a planning enforcement officer made a site visit and spoke to Mr and Mrs J late in June 2018.
13. The Council had no record of the site visit. But the officer said no building works had yet taken place, except for digging out the base. The extension would exceed 3.5 metres in depth. He had told Mr and Mrs J they would need to make a planning application. But he intended to close the enforcement case, as he did not feel the extension would be detrimental to surrounding properties. Also, he believed the enforcement complaint was a malicious one, as the complaint address was not local.
14. Mr and Mrs J said the officer had taken measurements and looked at their plans and steel calculations. He had stood on the concrete base and knew what size the extension would be. He had told them they did not need planning permission. They could apply for this if they wanted to. But he would not chase up an application and would close the case.
15. Late in August the Council received a further complaint about the size of the extension and its impact on neighbouring properties.
16. The Council’s records show that the enforcement officer made a visit the next day. His notes said only two courses of bricks had been laid. He had advised Mr and Mrs J to stop work. If they continued to build, this would be at their own risk.
17. Mr and Mrs J disagreed with this record. They said they were away on holiday on the date in question.
18. Early in September the officer emailed Mr and Mrs J. He asked them to submit a planning application, as he had received further complaints.

The first planning application

19. Shortly afterwards, Mr and Mrs J made a (retrospective) planning application. Officers determined this under their delegated authority in December 2018. The case officer’s report:
• described the proposal, saying this would project 6.7 metres in total from the original south elevation. It was set back from the boundary with the neighbouring property by 1.3 metres;
• noted objections received from three other residents. These included out of keeping with surroundings, inappropriate design, and visually intrusive. There would be an adverse impact on neighbouring property because the extension roof was higher than the former flat roof garage and filled the gap between this and the dwelling, resulting in loss of light;
• identified the key issues as the impact on residential amenity, and on character and appearance;
• considered there would be an adverse impact on neighbouring residential amenity. The height and projection of the extension would cause loss of sunlight. Together with the existing garage, would create an unacceptable tunnelling effect that would impact adversely on the outlook from the ground floor windows of the neighbouring property; but
• said that when viewed from outside the site, the extension would be seen in the context of an established residential area. There were no extensions of a similar size nearby. But this was not significant enough to warrant refusal of the application; and
• also said that although the materials used were not in keeping with the character of the area, this also was not significant enough to warrant refusal of the application.
20. Officers refused the application because the extension, by virtue of its design, size and proximity to the boundary, would have an adverse impact on the outlook and sunlight of the neighbouring occupiers.

Officers’ advice on a revised planning application

21. Following the refusal, the Planning Manager emailed Mr and Mrs J advising them that:
• officers had discussed matters and considered that an extension projecting 3.5 metres from the main house would be acceptable. But this advice was without prejudice, as there was no certainty about the outcome of an application;
• they would have to seek planning permission for an extension of this reduced size, as there were no permitted development rights for an extension to an elevation facing the road;
• an application would have to be subject to statutory notification and publicity so that neighbours would have an opportunity to view the plans and object to the proposals. But local planning authorities did not make decisions on the basis of the number or lack of representations; and
• in the circumstances they would not incur a planning fee.

The Planning Manager’s informal complaint response

22. The Planning Manager responded to Mrs J’s continuing concerns early in January 2019. She said:
• the enforcement officer did not take photographs during his visit in late June. But he believed the boundary fence and hedge had been removed, and materials placed on the land outside the property. He could not recall whether any part of the garage remained standing. But he was certain the wall forming the shared boundary with the neighbouring property remained in place;
• the officer recalled measuring the extension, and explaining this should project 3.5 metres from the original main elevation of the house and not from the extension added previously;
• he had further understood the extension would occupy the space between the original garage and house elevation to the west of the existing extension. He did not recall Mr and Mrs J showing him any plans, as they had said they did. The Planning Manager could not substantiate this point, as the plans Mr and Mrs J submitted with their subsequent application were undated;
• they had referred to other parties being present during the visit. But the officer did not recall this. Again, she could not substantiate matters;
• in the absence of photographs, it was now also difficult to confirm that the officer had based his measurements on a concrete pad poured earlier in June;
• the officer had advised that planning permission was required for the work. But he would not take formal action, if Mr and Mrs J did not submit an application. What he had said appeared to reflect Mr and Mrs J’s understanding also;
• regardless of any misunderstanding about the size of the proposed extension, she considered the officer had downplayed the importance of submitting a planning application. Also, he had not been sufficiently clear in explaining to Mr and Mrs J the risks of continuing to build without planning permission. The Planning Manager could only apologise for this;
• she would have expected the officer to have strongly encouraged them to stop work, and to submit both planning and building regulations applications. The officer should have outlined the risks of not having permissions in place;
• it would also have been appropriate to explain that submitting an application meant there would be consultation with neighbours, whose comments officers would take into account in reaching a formal planning decision;
• in downplaying the importance of seeking permission, The Planning Manager appreciated the officer had led Mr and Mrs J to believe there was no risk in continuing with the works. This was a significant factor in their decision to do so;
• she was considering processes and letters she believed the Council should introduce. These included follow up correspondence setting out advice in enforcement cases where discussion on site was not formally recorded. She was also encouraging enforcement officers to take photographs as a visual record of their visits;
• the officer’s records indicated he had made a further visit in August, when he observed that the foundations and two courses of bricks had been laid. Mr and Mrs J said no such visit took place, as they were on holiday. Also, works had progressed beyond two brick courses by this time. Other residents’ complaints about the works and their own timeline corroborated what they said about this;
• the officer now agreed it was unlikely he met with Mr and Mrs J in August. But the Council’s records showed he updated their case on the date in question. It was impossible for her to ascertain the exact reason for the error; but
• the officer was working on a number of other cases at the same time. The Planning Manager could only assume that the notes he recorded against their case related to a different property he had visited;
• enforcement officers dealt with a large number of cases. Nevertheless, the standard of record keeping in this case had fallen short of what she would expect, given that formal action potentially resulting in criminal proceedings could rely on such records. Again, she could only apologise for the error, and for misleading information provided as a result of it;
• following a further complaint from a third party, the officer had written to Mr and Mrs J early in September, and they had submitted a planning application shortly afterwards. The Council had now refused this, and she had explained the appeal process to them. The Planning Manager had also tried to advise them on other options in relation to reducing the size of the extension and submitting a further application; and
• she suggested they submit an appeal sooner rather than later, focussing on explaining why the impact of the extension was no more harmful than that of the garage. But she would be happy to meet them to discuss their concerns.

January - February 2019

23. A few days later a meeting took place between officers and planning agents acting on behalf of Mr and Mrs J. The agents said:
• they did not agree that officers were right to have refused the application; but
• Mr and Mrs J preferred to avoid an appeal, and to resubmit their application. Although they might also submit an appeal to run parallel with the revised application.
24. The Planning Manager said that if Mr and Mrs J submitted exactly the same application, officers would again refuse this. But she agreed they would look at and consider additional information submitted with a revised application.
25. Towards the end of the month the Planning Manager circulated her view to officers involved with the case that:
• according to the guidance, there was no scope for re-submission of the same application. But this was not set out in legislation;
• she did not want to be obstructive in refusing to accept a second application for the extension as built. So, she had agreed to accept it as a gesture of good will; but
• she had advised that if the Planning Inspectorate refused to accept an appeal against a second refusal, she took no responsibility for this; and
• at this point she was expecting only a new application. But, in the light of the guidance, the applicants might decide it was too high risk not to appeal the first refusal.
26. Following a site visit at the beginning of February, the case officer emailed Mr and Mrs J advising them of significant amendments they needed to make to the plans.

The second planning application

27. The delegated report included much of the same information as the report on the previous application. But it also set out:
• that the overall projection of the extension was about 6.7 metres and its overall width was about 7.4 metres. It had an eaves height of about 2.3 metres and an overall height of about 3.8 metres;
• that the extension was located to the east of the neighbouring property most affected by loss of light; and
• the findings and conclusions of the daylight, sunlight and overshadowing assessment the applicants also submitted demonstrating that the impact on the amenity of this property was acceptable.
28. Officers approved the re-submitted application in mid-March.

The Council’s complaint responses

The stage 1 complaint response

29. Mr and Mrs J made a formal complaint late in March. The Council’s Public Protection Manager responded in early April at stage 1 of the Council’s complaints procedure. The manager repeated what the Planning Manager had said early in January. She confirmed that new processes were in place to prevent the same errors occurring in future. Enforcement Officers would take photographs during site visits, and they would send follow up letters confirming the advice they had given.

The stage 2 complaint response

30. In mid-April, Mr and Mrs J asked to escalate their complaint to stage 2 of the Council’s complaints procedure. The Head of Highways and Construction responded early in May. However, he repeated what the Planning Manager and the Head of Public Protection had already said in their earlier responses.

The stage 3 complaint response

31. Mr and Mrs J immediately asked to escalate their complaint to stage 3 of the Council’s complaints procedure. Early in June, an officer responded to their request on behalf of the Head of Law and Governance. This officer set out the sequence of events up to the point when the Council refused Mr and Mrs J’s first planning application. The officer also reiterated the views of the first three managers who had considered matters.
32. In addition, the officer considered what Mr and Mrs J had said about Mr J’s telephone contact with the Planning Service before beginning the building works. The officer noted that:
• Mr J said that in this telephone conversation, a planning officer had told him he did not need planning permission. This was the reason why Mr J had started demolition works without seeking the correct permissions; but
• unfortunately, there was no record of this telephone conversation;
• in addition, the Planning Department had confirmed that they did not give advice over the telephone. It was not possible to fully understand a proposal from a verbal description of the site, and there was a risk of misunderstanding between callers; and
• as there was no evidence of what planning officers told Mr J, there was no way of reaching a view on this element of the complaint.
33. The officer went on to say that:
• following an exchange of information with the Planning Manager to explain their options, Mr and Mrs J had indicated that rather than appeal the decision they wanted to resubmit their application;
• they had engaged a specialist planning consultant to prepare and resubmit their plans. The specialist advised that they needed a daylight, sunlight and overshadowing assessment to establish the extent of the impact on the neighbouring property;
• the assessment showed that the extension had some impact on the neighbouring property. But there would be no significant loss of sunlight and daylight, and the extent of overshadowing would not change significantly. Consequently, the Council approved the second application in March 2019;
• in their complaint correspondence, Mr and Mrs J had said they had had to place their lives on hold for six months until the matter was concluded. They and their family had been under undue stress and financial pressure during this process. This had detrimentally affected their health and that of their family;
• the situation had undoubtedly been stressful for Mr and Mrs J. But they had not applied for the correct permissions at the start of the project. This had led to repercussions that had been costly to them and their family; and
• in the absence of fault by the Council, the Head of Law and Governance was refusing their request to progress their complaint to stage 3 of the complaints procedure.

The Council’s comments

34. The Council told me that:
• the complaint in June 2018 came from an address outside the area. So, the enforcement officer considered it was malicious. If it had come from a neighbouring address, he might have given different advice. With hindsight, the officer should have taken steps at that time to understand more of the background to the complaint rather than assuming it was malicious;
• this assumption influenced the advice the officer gave to Mr and Mrs J. His judgement of the harm arising from a 3.5m extension would have remained the same. But, if he had he appreciated the complaint was made on behalf of a neighbour, it was likely he would have been more robust in inviting Mr and Mrs J to submit a planning application. So, the proper process would have been followed from the outset, allowing the neighbour an opportunity to object;
• the officer did recall visiting the site around the time he received the second complaint in August 2018. The works were visible from the highway, and the extension now extended almost the full length of the shared property boundary;
• so, if the site owner had not submitted an application, it was likely the Council would have sought to agree a reduction in the size of the extension with the applicant. Or, if necessary, it would have served a formal notice;
• the case officer’s report on the first application noted that on balance the extension would have an unacceptable impact on daylight and sunlight to the neighbouring property. Both the case officer and the decision maker appropriately both took account of representations received from neighbours and considered the extension did result in a level of harm sufficient to justify refusal. So, it would have been expedient to take enforcement action; but
• national guidance notwithstanding, officers agreed to accept a second retrospective application for the extension. As the issue was so finely balanced, they considered the submission of a daylight and sunlight assessment would assist in understanding the extent of the harm caused;
• this document set out the results of modelling daylight and sunlight. The case officer’s report on the second application was clear that this additional technical information was the key change that led to the recommendation to approve the application in March 2019; and
• the requirement for a technical daylight and sunlight assessment does not form part of the adopted local validation requirements for householder applications. But, if the first application had included such an assessment, it was likely officers would have concluded there was insufficient harm to justify refusal.
35. In the light of this complaint, planning enforcement officers now:
• send written letters following site visits recording information and advice given, and any observations which informed that advice;
• take photographs to record works or activities observed on site visits;
• explain where appropriate that the Council may not take enforcement action where a breach of planning controls is trivial and causes no material harm or adverse impact; but
• also explain the risks of not seeking planning permission to regularise development; and
• provide contact details for the Building Control team, as in this case Mr and Mrs J also did not seek building regulations approval for their extension.
36. The Council accepted there were some shortcomings in Mr and Mrs J’s dealings with the planning team. As a gesture of goodwill, officers agreed to accept a second application to regularise the extension. This enabled Mr and Mrs J to provide further technical information on the basis of which they re-assessed the impact of the extension.
37. Officers also recognised there was a cost to obtaining this technical information. But they did not consider it reasonable for the Council to cover this cost.

Was there fault and if so, was there injustice requiring a remedy?

38. The Council has recognised there was fault in relation to the first part of Mr and Mrs J’s complaint. But regardless of the shortcomings in the advice they received:
• I am satisfied the enforcement officer did not lead Mr and Mrs J to believe the works were permitted development;
• consequently, and contrary to the Planning Manager’s view, it followed that they must have been aware they were undertaking works without planning permission and at their own risk;
• I cannot speculate on whether they might have applied for planning permission sooner and/or reduced the size of the extension, if the advice had been more robust; and
• it was open to them to seek advice from officers and/or engage a planning agent before submitting the first application.
39. I have seen evidence of the procedural changes the Council has made in response to its acknowledged fault, and I am satisfied with these.
40. Mr and Mrs J had a right of appeal against the refusal of the first application, if they were dissatisfied with officers’ view of the impact on neighbouring amenity. Mr and Mrs J were aware of this right of appeal, and I see no reason why they should not have used it. It is not open to the Ombudsman to substitute his view for the decision a planning inspector might have made on the merits of an application.
41. Instead, Mr and Mrs J made an informed choice to re-submit the same application. Officers used their discretion to waive the fee for the second application. Regulations permitted them to do this in the case of one further application for similar development on the same site within 12 months.
42. The Council has said it does not consider it should also reimburse the professional fees Mr and Mrs J incurred in support of the second application. The Council was not at fault in taking this approach. In saying this I am mindful that:
• a professional daylight, sunlight and overshadowing assessment is not normally a requirement for householder extensions; but
• this was a large extension extending almost the entire length of the shared boundary with the potential to have a significant impact; and
• in any event, it was open to Mr and Mrs J to have sought professional advice before submitting their first application. In the circumstances it might have been prudent to do so. In which case they would have incurred the same professional fees, but at an earlier stage.

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Decision

43. As I have found fault but not injustice by the Council, I have completed my investigation.

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Parts of the complaint that I did not investigate

44. I have not considered part b) of Mrs J’s complaint because she had the alternative remedy I have set out in my paragraphs 4 and 5 above. It was reasonable to expect her and her husband to use their right of appeal to have the matter considered by a planning inspector.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman