The Ombudsman's final decision:
Summary: Mr B complains the Council did not properly consider the impact on him when it approved planning permission for an extension to a neighbouring property. He says the owner is not building the extension in line with the approved plan. The Ombudsman finds the Council is not at fault in how it considered the application. It is acting appropriately to address concerns about the extension not being built to plan.
- The complainant, who I refer to as Mr B, complains the Council granted planning permission for an extension to a property next to his home. He says the Council did not properly consider the impact it would have on light, privacy, an increase in occupancy and antisocial behaviour. Mr B also says the extension is twice the size it is meant to be on the approved plan.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered the information provided by Mr B and made further enquiries of the Council. I sent a copy of my draft decision to both Mr B and the Council for their comments.
What I found
- Planning law and policy
- Planning permission is required to develop land and may be granted subject to conditions on the development and use of land. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
- Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and light.
- Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. It is for the decision maker to decide the weight to be given to any material consideration in deciding a planning application.
- Councils can take enforcement action if they find planning rules have been breached. However, councils do not have to 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 2012, paragraph 207)
- Mr B lives on a residential street near a university. He has health issues and spends a lot of time in a bedroom at the back of his property. The house next door to his is rented to students. Mr B has previously had problems with antisocial behaviour from students living in the house.
- The owner of the next-door house applied for planning permission for a two-storey extension to the rear of the property’s existing rear section of the house. The extension replaced an existing single storey lean to. The plan showed the ground-floor extension projecting 3.2 metres beyond the rear of the rear section and the first-floor projecting 1.2 metres. The plan was to scale but did not show measurements. It appeared from the plan that the first-floor extension would end in line with the rear of the existing lean to.
- Mr B objected to the application. He said it would lead to an increase in antisocial behaviour and he believed the owner would use the extension to make an extra bedroom. He said it would result in more people visiting the property and added disturbance. He complained the large number of students living in the area had a negative impact on the environment, parking and public transport. Mr B also said the development will result in the loss of sunlight to adjoining properties, which will harm the health of the occupiers.
- A planning officer considered the issues, including Mr B’s objections. The officer found the scale and design of the property were in line with the development plan. He found the extension may cause some overshadowing but the limited projection is such that this would be minimal. He found there was no substantial overlooking as the new window in the side elevation was for a bathroom and obscurely glazed. The officer noted there was a parking issue in the area but it was a sustainable location with good access to public transport and the development would not adversely impact on parking in the area.
- The planning officer accepted, in principle, the enlargement could enable an increase to six bedrooms. To prevent this, the officer included a condition that the owner could only use the property as a five-bedroom house.
- Mr B complained to the Council after work on the extension began. He said the owner was building the extension far larger than it showed on the approved plan. Council officers visited the property and measured the extension. They found the ground-floor extension was being built with a projection of 2.7 metres, which is in line with the plan.
- Mr B complained further as he said the approved plan only showed an extension of 1.5 metres for the ground floor and around 70cm for the first floor. Mr B believed this because the existing lean to was only around 70cm and the plan showed the first-floor extension as in line with its end.
- The Council said there was a mistake on the approved plan as it showed the existing lean to as 1.2 metres. However, this did not affect the planning decision as the proposed extension subsumed the lean to.
- The Council has since visited the property again and found the first-floor extension is being built 0.3 metres too long. It has written to the owner to say, if they wish to continue with the building they must submit a further application for the larger structure. If the owner submits another application the Council will consult Mr B. If the owner does not and continues to build the extension, the Council will consider whether to take enforcement action.
- The Ombudsman cannot question the merits of a planning officer’s decision if they made the decision properly. We can only find fault in the way that decision was made. For instance, if the planning officer failed to take into account a material planning consideration, it would be fault.
- In this case, the planning officer’s report shows he did consider all the material issues.
- The size of the extension does comply with the local development plan for the Council’s area. I therefore cannot question the planning officer’s decision that the size of the extension is acceptable.
- I note Mr B says the issue of light impacts him because he spends much of the day at the rear of his property due to health problems. I sympathise with Mr B’s situation in this respect. However, Mr B’s personal circumstances are not themselves a material planning consideration. It is for the planning officer to decide how much weight to give issues such as light and it is not my place to criticise any such decision as long as it was properly made. The planning officer considered what impact the extension would have on Mr B’s light and found it was likely to be minimal.
- The officer addressed the issue of privacy and noted the obscured glazed bathroom window. He put in place a condition to prevent the property being used for more than five bedrooms.
- I again sympathise with issues Mr B may have experienced with antisocial behaviour. However, antisocial behaviour is not a material planning consideration, I cannot question the planning officer’s comments that this is outside of the control of the planning system.
- It is my view, based on the above, the Council is not at fault in how it considered this application for planning permission.
- The confusion about the approved plan is because of a mistake in one of the drawings. The drawing showing the side elevation is wrong in that it shows the existing first floor rear section ending above the back door, when really it ends beyond the back door. It then shows a first-floor extension of 1.2 metres, which ends in line with the end of the existing lean to. The ground floor extension is, proportionally a little more than twice the size of the first-floor extension, at no more than 3.2 metres.
- There are no measurements on the plan so when Mr B looked at it, he could only see the proportions. He knows the lean to is only around 70cm. He could see the first-floor extension on the plan ended in line with the lean to. He could also see the ground floor extension was a little more than twice the size of the first-floor extension. Mr B therefore concludes the ground floor extension should be no more than 1.5 metres.
- The plan is to scale, however, and shows the ground floor as no more than 3.2 metres and the first-floor as 1.2 metres. The plan, if drawn correctly, would have shown the first-floor extension projecting beyond the existing lean to. However, the planning officer made his decision based on the dimensions, which are correct, rather than the incorrect position of the existing outer wall. This mistake would therefore not have made any difference to his decision.
- The plan would have been drawn by the owner’s architect and submitted to the Council. The Council would not have been aware the plan was incorrect until it visited the property to check the building of the extension. The Council is not therefore at fault for making the error on the plan. The only question is whether Mr B had adequate opportunity to object, when the plan may have been misleading to anyone who could not measure its scale.
- Mr B did raise several objections, as outlined above. He would have made the same objections if he had thought the extension was larger. The planning officer knew the correct dimensions and evaluated Mr B’s objections against these. It is therefore unlikely to have affected the result of the application, had the plan not contained an error.
- It is my view, based on the above, it is not possible to establish fault in how the Council considered the application in line with the plan. The mistake on the plan did not cause injustice to Mr B. This is because he objected to the material issues affecting his property and the planning officer considered these objections in line with the correct measurements. As above, the planning officer was not at fault in how he considered the material issues.
- During a second visit the Council found the first-floor extension was 0.3 metres longer than on the approved plan. The Council has written to the owner explaining he must apply for planning permission for the larger structure if he wishes to continue building. If he does so, Mr B will have a further opportunity to object. If not, and the building continues, the Council will consider whether to take enforcement action.
- I agree that the Council’s actions here are reasonable and in line with their obligations regarding enforcement.
- The Council is not at fault in how it considered the application. It is also acting appropriately to address concerns about the extension not being built to plan.
Investigator's decision on behalf of the Ombudsman