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Tandridge District Council (20 008 955)

Category : Planning > COVID-19

Decision : Not upheld

Decision date : 23 Aug 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to grant planning permission for his neighbour to build a two-storey extension to the side of their house. The Ombudsman found no fault in the way the Council considered Mr X’s neighbours’ planning application.

The complaint

  1. Mr X complained about the Council’s decision to grant planning permission for his neighbour to build a two-storey extension to the side of their house. He said the Council’s assessment of the application was flawed and it did not carry out a site visit. As a result, Mr X complained he will suffer a significant loss of light to his rear bedroom, the side of his house, and part of his garden.
  2. The Council’s decision has caused Mr X and his wife distress. He said it will mean increased costs to light their home in future.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Town and Country Planning Act 1990.
    • The Coronavirus Act 2020.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations suggest they should not.
  2. When the Council considers a planning application it must consider the impact a development will have on nearby properties. A Council can only consider 'material planning considerations' when looking at planning applications. The most common of these considerations are:
    • Local and national planning policies
    • Planning history of the site
    • Overlooking and overshadowing
    • Visual amenity (but not loss of private view)
  3. The Council cannot consider matters which are sometimes raised but are not normally planning considerations such as:
    • The perceived loss of property value
    • Private disputes between neighbours
    • The loss of a view.
  4. Because of government social distancing rules in response to COVID-19, some councils decided not to carry out routine site visits when considering planning applications.
  5. Guidance from the Local Government Association told councils to consider the need for site visits on a case-by-case basis. They are not always essential or necessary but can be helpful. Councils should consider whether they can make a robust decision solely on the application information. They may also consider photographs, video footage, or online satellite images in place of a site visit.
  6. Some councils use the 45-degree code when considering applications for new buildings or extensions which might cause a loss of daylight, or overshadowing, to a nearby house. A planning officer will draw an imaginary line from the nearest front or rear window of the house affected by the work. If the new building or extension crosses the 45-degree line it is likely to affect the outlook and daylight of the neighbour. However, that does not mean the application will be refused. The Council must assess the significance and impact of any potential loss of daylight or overshadowing.
  7. In deciding an application, councils must consider what people say about the proposals, but they do not have to agree with them. Councils must also look at planning policy and all other relevant planning matters affecting the development, often weighing and balancing competing views and interests to reach a planning decision.
  8. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made. We cannot question the merits of the decision the Council has made or offer any opinion on whether we agree with the judgment of the Council’s officers.
  9. Provided it has regard to all material considerations, it is for the decision maker to decide what weight to give to the material considerations in each application.

What happened

  1. Mr X lives in a two-storey semi-detached house. His next-door neighbour also lives in a semi-detached house, not joined to Mr X’s. Mr X’s neighbour previously got permission from the Council to build a single storey front and side extension to their house. The side extension runs adjacent to Mr X’s house.
  2. During summer 2020, Mr X’s neighbour applied to the Council for permission to build a larger extension, making the existing front and side extensions two-storey. They also sought permission for a single storey rear extension.
  3. The neighbour’s plans included a location map showing their house, Mr X’s house, and the boundary between the two. The plans also showed the footprint of the proposed new extension. The applicant provided photographs of the front, rear, and sides of the house. Mr X’s house was shown in the photographs.
  4. Mr X sent objections to the Council on 6 September. He said his neighbour had applied for a similar extension earlier, but the Council refused permission, and nothing had changed since. He said the boundary line on the plans was inconsistently drawn, his neighbours’ wall is only 70cm from the boundary, and making it two storeys will create a terracing effect. He also said his neighbours’ house is set back further than his and a two-storey extension will block light and cause overshadowing.
  5. The Council approved the plans and granted planning permission in October 2020. The officer who decided the application said in their report:
  6. “The development would be visible from the neighbour (Mr X) and fall adjacent to their existing built form. The first-floor extension would project no further than the existing rear building line, whilst the single storey element would project a further 3.05 metres. Given the positioning of built form in relation to the neighbouring property, it is not considered to result in significant overshadowing or overbearing effects.
  7. Third party comments raise concerns with regards to loss of light. This has been taken into consideration; however, given the positioning of built form in relation to neighbouring windows it is not considered that this would result in significant loss of light to warrant refusal. There are no windows to the first-floor side of the neighbouring property which would be affected. It is noted that should any element of the proposal overhang neighbouring land, this would be a private dispute and legal advice should be sought.
  8. In conclusion, due to the positioning, size and scale of the development, the proposal would not adversely affect the amenities of neighbouring properties.”
  9. Mr X exchanged emails with the planning case officer between 19 and 21 October 2020 after discovering his neighbour’s application was successful. He said he made clear objections to the plans and tried to speak with the officer, but they were working from home. He understood the Council consulted his neighbour about his objections, but said they failed to speak directly with him or visit his house. He said a two-storey extension 70cm from the boundary would be only 1.7 metres from his house, would block light to his rear bedroom, and put large areas of his house in shade. He said the plans did not show any guttering, and this may overhang onto his property.
  10. The case officer told Mr X his objections were considered but on balance the proposals were acceptable. There are no minimum separation distances written into council policy. Each case is assessed on its merits. If any part of the development encroaches his land then this is a private dispute. Boundary disputes are not planning matters.
  11. Mr X said he highlighted in his objections that he considered his neighbour’s plans were inaccurate. He asked if the case officer checked this on site.
  12. The case officer said they did not meet the applicant. They discussed the application by telephone. The Council is not obliged to engage in discussions with neighbours. Objections are displayed on the Council’s website and are considered. Guttering is not development, so is not shown on plans. If they cross onto Mr X’s land then this is a private dispute. Land ownership is not a material planning consideration.
  13. Mr X asked the officer to confirm the criteria for assessing loss of light and what would amount to significant harm. He also said it should be the planning officer’s job to check the accuracy of plans submitted. He questioned how the case officer could assess the impact without a site visit.
  14. The case officer said they assessed the application in line with Council policy. The applicant confirmed the plans and boundary lines were accurate and the case officer had no reason to doubt it. If the built extension does not comply with plans, Mr X can report it to the Council’s enforcement team. The case officer said a site visit was not necessary. They considered photographs and made an in-depth assessment of the application.
  15. Mr X said the applicant’s photographs were not taken from his house so do not give a fair, unbiased view. He said the case officer could not say what loss of light he would suffer because they did not visit his house.
  16. The case officer said their report explains their decision and Mr X should complain if he disagrees.
  17. Mr X made a formal complaint on 26 October. He referred to his emails with the case officer and said:
    • The officer failed to visit and assess the site or its impact on his right to light, and has therefore failed to make a fair, unbiased decision.
    • The officer’s report is misleading and incorrect, because of not visiting the site.
    • His rear bedroom will have a two-storey extension less than 1.7m away projecting out by 4.2m. The loss of light and overshadowing will be significant.
    • By failing to visit the site the officer failed to establish the plans are inaccurate.
    • The officer implied if the extension goes beyond the boundary it is Mr X’s responsibility to deal with and not the Council’s fault for approving the plans.
    • The officer should have disputed the applicant’s plans, because Mr X raised an objection which questioned whether they were accurate, so the officer should have checked this.
    • The officer failed to follow planning policy because the extension will be less than 1 metre from the boundary and will create a terracing effect.
  18. In its first complaint response, the Council said officers were not authorised to carry out site visits during the COVID-19 pandemic for safety reasons. Applicants must send photographs of the site instead. Officers also have access to other information, such as previous applications and online aerial images.
  19. It recognised the photographs are from the perspective of the application site, but they clearly show the location and neighbouring houses, including Mr X’s. It was not normal, even before the pandemic, for officers to visit neighbouring houses.
  20. The Council accepted the extension will protrude past the rear building line of Mr X’s house. It said the officer’s report states the first-floor extension will not protrude further than the existing building line of the house. It said while the extension may result in some harm to Mr X’s amenity, this was not found to be significant enough for the Council to refuse the application.
  21. It said 45-degree angles are not part of its policy but can be a helpful indicator on overshadowing. The case officer calculated the built form at first floor level would not exceed the hypothetical 45-degree line.
  22. The Council said boundary disputes are private matters and not considered as part of the planning assessment. If plans were incorrect during construction then this could be investigated by the Council’s planning enforcement team. In this case, the officer sought confirmation from the applicant about the plans and there was no further reason to dispute them.
  23. The Council did not consider the extension would create a terracing effect as it would follow the building line of the existing single storey extension with a separation of 0.7 metres to the boundary.
  24. Mr X wrote back to the Council on 10 November because he was not happy with its complaint response. He said:
    • The Council used COVID-19 as an excuse not to visit the site. The map included with the applicant’s plans was not accurate and did not show the correct position of the houses.
    • He had accurately measured the two houses to produce his own drawings which showed the applicant’s extension will be at 60 degrees beyond his house. That would create significant overshadowing.
    • The applicant responded to the Council about his objections, and the Council then discussed this further with the applicant. He said this was biased because the Council did not get back in touch with him.
  25. In its final complaint response, the Council repeated that officers were not allowed to carry out site visits for safety reasons.
  26. It said officers can ask permission from the head of planning if they consider a site visit necessary. In the case, the officer was satisfied they did not need to do a site visit to make a decision. In any event, it was unlikely the officer would have visited Mr X’s house.
  27. The Council said its decision was not based on the location plan which Mr X said was incorrect. The officer mainly considered the drawings and site photographs. It said development can cause some harm to neighbours. The Council must assess whether the harm is significant. That assessment is subjective.
  28. The officer referenced the 45-degree angle as a means of assessing impact, but this is not in the Council’s policy. The Council acknowledged the extension will be visible from Mr X’s house but said it will not extend beyond the existing rear building line. It said Mr X’s objections were considered but the officer was satisfied the impact would not be significant. Officers are not obliged to contact all objectors, and this would not be feasible. Speaking to applicants is not biased but is part of the process.
  29. The Council said its policy on the terracing effect is not prescriptive, because no sites are the same. The officer considered the distance between the two houses was enough not to result in a terracing effect.
  30. Mr X brought his complaint to the Ombudsman on 3 December 2020.

Response to my enquiries

  1. The Council told me it normally visits application sites before making a decision. However, because of COVID-19, it decided to limit site visits in line with government guidance. In this case it asked for photographs instead of visiting the site.
  2. The Council does not consider Mr X’s neighbour’s extension will create a terracing effect. The houses are separate and appear semi-detached. The extension follows the building line of the existing extension, with a separation distance of 0.7 metres. If that is not achieved, Mr X can report it to the Council’s planning enforcement team.
  3. The case officer used the information supplied by the applicant and photographs, as well as their own knowledge of the area, in making their decision. The 45-degree rule is a guideline only and was not the sole reason for the decision. All of the information together led the officer to conclude the harm would not be significant enough to refuse the application.

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Analysis

  1. Mr X complained the Council did not carry out a site visit to assess the impact of the proposed development. He is also unhappy the Council only assessed photographs from the application site, not from his house. In normal circumstances, the Council does carry out site visits. Because of COVID-19, it took the decision not to do routine site visits. Instead, it looked at other evidence, like photographs. That was in line with national guidance and was not fault.
  2. In addition, when carrying out a site visit the Council would ordinarily visit the application site only, not neighbouring houses. The applicant's photographs showed Mr X’s house, as well as the boundary and gap between the two houses. They also show the position of the existing extension in relation to Mr X’s house. The Council was satisfied it could assess the impact on neighbouring amenity using the applicant’s photographs, along with the plans and online images. I have not seen evidence of fault.
  3. Mr X is unhappy the Council did not respond to his objections or consult with him. He said it did not give a fair or unbiased view. We do not expect the Council to respond to objections received. Mr X is not a party to the planning application, so we would not expect the Council to engage with him in the same way it did with the applicant. Instead, we expect to see evidence the Council considered the objections, and any material planning considerations raised, when assessing the application. I am satisfied it did that here and I have not seen evidence of fault.
  4. Mr X believes the Council’s 45-degree drawings are wrong. He has drawn his own which he says are more accurate. It is not for the Ombudsman to say which drawings are correct or most accurate. The officer made drawings using plans of the site and Mr X did not submit his drawings to the Council until the complaint stage, so I do not consider the officer was at fault. In any event, the decision was not solely based on the 45-degree drawings, they were only a part of the consideration. I have not seen evidence to suggest Mr X’s drawings would alter the Council’s decision, or that the Council did not consider the application properly.

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Final decision

  1. I have completed my investigation. The Ombudsman found no fault in the way the Council considered Mr X’s neighbours’ planning application.

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Investigator's decision on behalf of the Ombudsman

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