Summary: Mr C says the Council wrongly granted planning permission for an extension to his neighbour’s house which blocked daylight from his kitchen. He says this has affected his enjoyment of it. The Council was at fault for having an unclear policy, for a failure to inform its planning committee of that policy, and for breach of an undertaking to enforce a breach of planning permission. This caused Mr C injustice both because he has lost confidence in the Council and because of the time he has spent pursuing the matter. The Council should pay him a sum in consideration of his trouble, fulfil its undertaking to enforce the breach and review the relevant policy.

The complaint

1. The complainant, who I have called Mr C, says the Council:
1. wrongly granted permission for an extension to his neighbour’s property. He says the Council failed to consider properly the loss of amenity the development would, and did, cause him; and
2. failed to make his neighbour install opaque glass in a window overlooking his bedroom having promised to do so.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Mr C. I wrote an enquiry letter to the Council. I considered its response alongside Mr C’s evidence and the relevant law and guidance.
5. I asked the Council and Mr C for their comments. I wrote several draft decisions incorporating many of these suggestions before reaching my final decision.

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What I found

What should happen

Planning decisions

6. Planning authorities should always grant permission for sustainable development unless, on balance, there is good reason to refuse.
7. When making decisions, Councils must consider all material factors.

Planning officer’s report

8. Before a council decides on a planning application, the council should inform those affected by the decision. A planning officer should prepare a report setting out the relevant material considerations and making a recommendation on whether permission should be granted.
9. Case law says that a planning officer’s report, ‘is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts ... Criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters, which thereafter are left uncorrected at the meeting of the planning committee.” (Oxton Farms & Anvor v Selby District Council [1997] EWCA Civ 2004).

Enforcement

11. The Town and Country Planning Act 1990 says that councils may issue a planning enforcement notice where there has been a breach of planning control and it is expedient to do so.
12. While councils must consider enforcement action and the Ombudsman will find a council at fault if it does not, there is no requirement on a council to take enforcement action where there has been a breach. Whether to do so is a matter of professional judgment with which the Ombudsman will not generally find fault.

What happened

13. In 2016, Mr C’s neighbour applied for permission to build an extra storey on a single storey extension to the rear of his house. The Council notified neighbours and received several objections including one from Mr C.
14. The neighbour then installed a dormer window overlooking Mr C’s bedroom which was not permissible under the permitted development rules.
15. Mr C objected on several grounds. He said the proposal would block virtually all direct sunlight from his kitchen window. He says he also uses the kitchen as a dining room, a family room and a study.
16. He says no officer came to his house to investigate whether the proposals would affect his amenity or to check how he used his kitchen/diner.
17. Two local councillors requested that the application be considered by the Council’s planning committee because of the number of objections.
18. A planning officer prepared a report which recommended a grant of permission. It contains no consideration of whether Mr C’s kitchen is a kitchen/diner and therefore a habitable room.
19. The Council’s planning committee considered the application in July 2016. There are no detailed minutes of the meeting. Mr C says there was no consideration at that meeting as to whether his kitchen/diner was a habitable room. The record says only that Mr C addressed the meeting and permission was granted.
20. The Council says that Mr C addressed the committee about the potential loss of light. Therefore, the planning committee had all the relevant information when it made its decision. Mr C denies this. He says that he had only two or three minutes to address the committee and did not address his use of the room at all.
21. Mr C complained to the Council. He received a response on 21 July 2016. The Council said its consideration of the application had been lawful. Mr C complained again. He received a further response in August 2016. The complaint response did not deal with any matters relevant to this complaint.

2017

22. The development began. Mr C believed his neighbour was not complying with the permission. He contacted the Council. An officer told him that all relevant factors had been considered.
23. Mr C phoned the Council and spoke to a planning policy officer, Officer O. He says Officer O explained that the Council determined whether a kitchen/diner was a habitable room on a case by case basis and that the relevant considerations were ‘if meals are eaten there and/or if people would linger there for recreational or other social purposes’. That is to say, it was a matter of the room’s use.
24. Mr C made a stage 3 complaint which the Council answered in April 2018. The Council again said it had considered his objections at the planning committee hearing and had done nothing wrong.
25. In response to my enquiries, the Council says a senior planning officer, Officer P, visited Mr C’s house in April 2016 and decided the room was a kitchen. Mr C says the visit, in fact, took place in April 2018. Research bears this out as Officer P did not join the Council until 2018.

Occluded window

26. He later complained that a window that was meant to have been unopenable and glazed with occluded glass was openable and had been glazed with clear glass.
27. The Council responded in June 2017 saying that there had been minor discrepancies from the plans in the building but the development was broadly compliant with the plans so it did not intend to take enforcement action.
28. Mr C complained to the Council about this. The Council replied in April 2018 saying that it had spoken to the homeowner and asked them to occlude the window, which should, by the date of the letter, occurred.
29. It further stated, ‘Moreover, the Enforcement Officer will be writing to the homeowner to ensure that a plan is both submitted and implemented to us for ensuring that the window cannot be opened. Again, this requirement will be enforced’.
30. Mr C says that the homeowner can and does still open the window and the Council has taken no enforcement action.

Was there fault causing injustice?

Kitchen

31. At the hearing in July 2016, the Council supported the planning application. Mr C objected and provided evidence that the development would affect his amenity. The planning committee discounted his objections and granted permission. .
32. The Council says, in its extension guidance that ‘where an overbearing extension causes excessive overshadowing or loss of sunlight the council’, it ‘will’ refer to BRE Digest 209. There is no evidence that it did so. BRE209 says that kitchens are habitable rooms and the loss of light to them should be considered. By its own evidence, it did not do so.
33. The planning officer’s report contains no consideration of whether the kitchen diner was a habitable room or not. The report says the loss of direct sunlight would not be significant. Mr C says the property faces north-east and the kitchen/diner window faces south east and the loss of sunlight is, in fact, very significant as before the extension was built the kitchen got four hours direct sunlight per day and now it gets none.
34. The Council says Mr C had the opportunity to put his case and that, therefore, even allowing for any omissions in the planning officer’s report, the committee made its decision having considered all material considerations. Mr C says he did not explain how he used his kitchen at the committee.
35. I do not accept that this was the case. While the committee heard what Mr C considered would be the impact on him, it did not hear that, according to Council policy, Mr C’s kitchen was, in all likelihood, a kitchen diner and therefore a habitable room. This was a material matter which was left uncorrected at the meeting of the planning committee. Therefore, as is stated in Oxton Farms v Selby, it merits consideration as fault.
36. Mr C did not discover that this was Council policy until Officer O told him. No one visited his house to check the use until 2018. Now that it has done so, it still maintains that Mr C’s kitchen is not a kitchen diner despite the evidence he has given that it is where he and his family eat their meals.
37. All of this was fault that has caused injustice in that Mr C has no faith in the decision and can never know what would have happened had the committee been properly informed.

Enforcement action/window

38. The Council wrote to Mr C in April 2018 to tell him the neighbour had agreed to obscure the dormer window. In response to my enquiries, it told me that the neighbour has now done so without the need for formal enforcement action.
39. Mr C says that, in fact, the window is still not obscured and is still openable he accepts that there may have been plastic film attached to the inside. The Council considers the matter to be closed though, if the film is removed, Mr C could complain again.
40. Whether to enforce is a matter for the Council. Generally, providing a council has considered taking enforcement action, there is no requirement for it to do so, if it does not consider it expedient.
41. However, the Council has already undertaken to Mr C in April 2018 that it would take enforcement action. It has, therefore, already considered enforcement action, found it expedient and made an undertaking to Mr C that it will enforce. By failing to do so, therefore, the Council is at fault for maladministration.
42.  

Remedy

43. The Ombudsman cannot say how the Council would have decided had it had a settled definition of a habitable room and/or visited Mr C. We cannot substitute our decision for that of a planning officer.
44. However, in this case, neither would it be right to accept Officer P’s decision, made in April 2018, long after the grant of permission, that the room was a kitchen and therefore not habitable. There is clearly a danger that this decision is an after-the-fact formalisation of an erroneous planning decision.
45. Mr C has pursued this matter for three years dissatisfied that the Council made a poor decision when not in possession of all the material information. I have found that he is right at least in saying that the committee did not have the information it required to make a decision.

Agreed action

46. Within four weeks of the date of this decision, the Council:
1. Has agreed to pay Mr C £400 in recognition of the distress caused and the time and trouble he spent in pursuing the Council.
2. Must commence enforcement action to ensure that the neighbour’s window can no longer be opened.
47. Within three months, the Council has agreed to create and publish guidance as to when kitchen/diners become habitable rooms.

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Final decision

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Investigator's decision on behalf of the Ombudsman