Bournemouth, Christchurch and Poole Council (20 003 684)

Category : Planning > Other

Decision : Not upheld

Decision date : 15 Dec 2020

The Ombudsman's final decision:

Summary: There was no fault by the Council in a complaint about its handling of a planning application.

The complaint

  1. Mrs X complains about the Council’s handling of a planning application. She says:
    • The planning officer concluded an extension at a neighbouring property would not harm her residential amenity but the extension comprises a 2.95 metre high wall, 8 metres long, and 3 metres from her lounge window. The extension will block her view and some daylight and so will materially harm her outlook and residential amenity. It was impossible for the officer to judge the impact on her property without visiting her property.
    • Similar applications to other councils in the UK suggests that large 8 metre extensions are commonly automatically refused under permitted development if neighbours have a material objection.
    • A condition of the original planning permission for development at the neighbouring property stated ‘there should be no alteration at first floor level or above which materially affects the appearance of the dwelling without a full planning application’. But the planning officer’s report claims ‘none of these works are at first floor level or above’ which is factually incorrect.
    • She asked the Council to include a condition requiring railings in front of a Juliet balcony on the first floor level of the application site to remain in place but the decision notice failed to include this condition.
    • Her letter of objection was deleted from the Council’s website.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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How I considered this complaint

  1. I considered the complaint and background information provided by Mrs X and the Council. I discussed matters with Mrs X by telephone. I sent a draft decision statement to Mrs X and the Council and considered the comments of both parties on it.

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What I found

  1. The Council received an application which sought prior approval under permitted development rules for a single storey extension which would extend beyond the rear wall of a detached house by 8 metres, with a maximum height of 4 metres and the height at the eaves of 3 metres.
  2. The Council had previously refused a prior approval application for a similar proposal because it would be within 2 metres of the boundary and the eaves height would exceed 3 metres.
  3. Mrs X was notified of the application. She objected to it. She said the proposal would seriously harm her residential amenity as the 8 metre long solid wall on the extension would be little more than 3 metres from her lounge window. She said the wall would be well above eye height and so the applicant’s claim there would be no loss of outlook was false. She said the wall would be overbearing and would overshadow her property. She said the amended position of the wall was merely 30 centimetres away from the boundary and the wall had been relabelled as a parapet.
  4. Mrs X said the extension could not legally be considered as permitted development and the proposal required a full planning application because it would breach a condition of the original planning permission for the application property. The condition states ‘no alteration or extension shall be carried out at first floor level or above which materially affects the appearance of the dwelling’. Mrs X said the proposal would breach the condition.
  5. Mrs X said the proposal amounted to overdevelopment of the site as the proposed extension and house would be roughly 50% of the original area of the back garden. Mrs X said the proposed flat roof could be used as a terrace and so asked the Council to impose a condition requiring the railings in front of Juliet balcony at first floor level remain in place.
  6. Mrs X said it was impossible to build the extension without breaching building regulations.
  7. Mrs X’s objections were summarised in the planning officer’s report as follows:

“concerns which include the proposed 3m height of the wall along the north east side elevation being above eye height; up to 8m long; and at 2m to boundary, causing overbearing and overshadowing, as well as breaching a restrictive condition attached to the original planning permission”.

  1. The planning officer then set out an assessment of the proposal’s impact on Mrs X’s home. The officer said the side wall would be at a minimum distance of 2 metres to the boundary and extend up to 8 metres into the rear, with an eaves height of 2.75 metres. The officer said this would result in a wall height of 2.95 metres from ground level. The officer said this was within the limits of permitted development.
  2. Referring to Mrs X’s objection involving the condition of the original planning permission, the planning office said none of the proposed works were ‘at first floor level or above first floor level’.
  3. The officer said windows were proposed on the north west and south west elevations at ground floor level and would be screened from neighbours by boundary treatment.
  4. The Council approved the application.

Findings

The planning officer concluded an extension at a neighbouring property would not harm her residential amenity but the extension comprises a 2.95 metre high wall, 8 metres long, and 3 metres from her lounge window. The extension will block her view and some daylight and so will materially harm her outlook and residential amenity. It was impossible for the officer to judge the impact on her property without visiting her property

  1. When dealing with complaints about a council’s decision on a planning application, the role of the Ombudsman is to consider whether there was fault in the process leading to the council’s decision. The Ombudsman is not a planning appeal body and so cannot substitute his judgement for that of the council.
  2. In this case, I do not find fault with the way the Council made its decision. The planning officer set out an appraisal of the proposal’s impact on neighbouring properties, including Mrs X’s home, in the delegated report. I am therefore satisfied there was reasoned justification for the officer’s judgement.
  3. The planning officer could have extended the summary of Mrs X’s objections to include everything she said. In so doing, the officer could have provided a view on all the grounds of objection in the report. It would have been helpful had the officer done so.
  4. As to the grounds of complaint omitted from the report, the officer could have responded to Mrs X’s point on overdevelopment by saying use of 50% of a curtilage for development is not overdevelopment and is within permitted development rules. The officer could have explained why a condition requiring retention of the railings was not necessary. The officer could also have explained that concerns about building regulations breaches were not material planning considerations.
  5. However, there is no statutory requirement that the local planning authority set out all points of objections received in a planning report together with the authority’s view on each point.
  6. I accept Mrs X does not agree with the officer’s judgement; in fact, she considers it was the wrong judgement. However, it is not for the Ombudsman to consider the merits of a properly reached judgement, that is to say whether it was the right or wrong one.
  7. As to the Council’s decision not to conduct a site visit to Mrs X’s home, I do not find fault by the Council. There is no statutory requirement to visit the homes of third parties and the usual expectation is that local planning authorities can judge the impact on third parties from examination of the submitted plans and/or visits to the application site.

Similar applications to other councils in the UK suggests that large 8 metre extensions are commonly automatically refused under permitted development is neighbours have a material objection

  1. The Council was required to judge the merits of the application before it. It could not rely on refusals made by other planning authorities as justification for refusing the planning application.

A condition of the original planning permission for development at the neighbouring property stated ‘there should be no alteration at first floor level or above which materially affects the appearance of the dwelling without a full planning application’. But the planning officer’s report claims ‘none of these works are at first floor level or above’ which is factually incorrect

  1. Mrs X’s own understanding is that the works were at or above first floor level because of the proposed height of the extension. She says the height of the parapet wall meant the works were at first floor level and materially affected the appearance of the dwelling. Whereas the officer was trying to explain the proposal involved works on a single storey extension at ground floor level.
  2. I note Mrs X is not satisfied by the officer’s words and considers they are incorrect. I do not share Mrs X’s interpretation. I do not find fault by the Council here.

Mrs X asked the Council to include a condition requiring railings in front of a Juliet balcony on the first floor level of the application site to remain in place but the decision notice failed to include this condition

  1. The Council was not statutorily required to include a condition because a third party made the request. It would have been helpful had the planning officer explained this in the officer report. However, the Council offered why it did not consider a condition was required in its response to Mrs X’s complaint.

Mrs X’s letter of objection was deleted from the Council’s website

  1. Mrs X wrote two letters objecting to the application and both letters are presently on the online planning file. Perhaps one of the letters was removed from the website at some stage hence Mrs X’s claim.
  2. But the planning officer handled the planning file which contained all relevant documents rather than just the application documents on the website. So I cannot give credence to Mrs X’s contention that as one of her letters was not on the website the planning officer did not see it and so ignored her objections.

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Draft decision

  1. Subject to further comments by Mrs X and the Council, I intend to close this complaint.

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Investigator's decision on behalf of the Ombudsman

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