Hertsmere Borough Council (18 010 619)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 19 Mar 2019

The Ombudsman's final decision:

Summary: The Council correctly determined a planning application and dealt with enforcement complaints. There was some service failure to Mr B. The Council has offered an appropriate remedy; to apologise and pay £250.

The complaint

  1. The complainant, who I will call Mr B, says the Council failed to properly consider his neighbour’s planning application. The Council had previously refused an application and asked that any future application include a rear elevation representing the roof form of the first-floor extension. This wasn’t provided, but the Council approved the application regardless. The excavation of the foundations went into flood zone 3 without any exceptions test carried out. Mr B says the development has a significant impact on the loss of light to his property, is overbearing and affects his outlook. Mr B says the 45-degree rule is breached. He believes there is a loss of value to his property.

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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)

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How I considered this complaint

  1. I considered information provided by Mr B and the Council. I looked at the planning documents available on the Council’s website for both the approved and the rejected applications for Mr B’s neighbour. I considered the Council’s ‘Planning and Design Guide – supplementary planning document’, ‘Planning Enforcement Policy 2015’, the Town and Country Planning Act 1990, and the Town and Country Planning (General Permitted Development)(England) Order 2015. I shared a draft of this statement and considered the responses.

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What I found

  1. Most development in England needs planning permission from the Council, some development can be completed under permitted development rights without the need to apply for planning permission. Mr B’s neighbour (Mr X) applied to the Council to build a rear extension, convert the lower ground floor garage and put a dormer on the side elevation. The Council refused the application based on flood risk, overbearing to Mr B’s property, and unneighbourly development.
  2. Mr X put in a revised planning application. Mr X reduced the size of the rear extension, particularly on the boundary with Mr B, removed the garage conversion and removed the side dormer. The Council considered this development was acceptable and gave Mr X planning permission.
  3. In the Council’s decision notice on the rejected application it told Mr X that any future applications must contain plans of the rear elevation representing the roof form of the first-floor rear extension. Mr X did not provide this with the second application that the Council approved. The Council agrees the ‘proposed rear elevation’ plan does not accurately show the works to the first floor and roof, but says the proposed drawings show a first-floor plan and roof plan which was enough for it to assess the planning application. This would also be enough for any enforcement action if the development is not constructed in accordance with those plans.
  4. The Council considered the impact on Mr B’s property when assessing the planning application, including whether it breached the ’45-degree rule’.
  5. The Council’s planning and design guide says “Rear extensions should be set comfortably within the line drawn at 45 degrees from the nearest edge of the neighbouring front or rear facing windows. Only windows to a habitable room or kitchen will be taken into consideration. Flank windows will not be taken into consideration.”
  6. Mr B has a conservatory on the back of his property, which the Council classes as a habitable room. Therefore, the Council draws the 45-degree line to the nearest edge of the rear conservatory window. The Council does not consider the windows on the side of the conservatory, as they are flank windows.
  7. The case officer wrote a report which considered the impact on residential amenity, including the impact on Mr B’s property. This said the single storey rear extension, and first floor rear extension, would not breach the line drawn at 45-degrees from the edge of Mr B’s habitable rear window. The Council did not consider the development caused an unacceptable impact on outlook for neighbouring occupiers, including Mr B.
  8. Because Mr X’s property is in a flood risk zone the Council asked him to put in a flood risk assessment with the planning application. This report, completed by a specialist company, concluded the development was suitable.
  9. Mr B says the development went into flood zone 3 without any exceptions test. The Gov.uk website says you do not need a sequential test if your development is minor development. The independent report determined Mr X’s development was a minor development. The Gov.uk website says if the sequential test shows it isn’t possible to use an alternative site, you’ll need to do another test called the exception test. Mr X did not need to complete a sequential test as the extension was minor development, so there was no need for an exception test.
  10. Mr B contacted the Council several times to say Mr X was doing work for which he did not have planning permission. The Council’s planning enforcement team considers such matters. The Council categorised Mr B’s complaints as priority three, which meant it should complete its initial investigation within 40 working days. The Council should tell Mr B the outcome of its investigation. The Council met its time targets, but did not always update Mr B.
  11. During the Council’s complaint process it determined it had correctly determined the planning application, but found some fault in its service to Mr B. It found it did not give a timely response to the issues Mr B raised, there was a lack of communication between officers, and inconsistency in officer advice. To recognise Mr B’s time and trouble the Council apologised and offered £250.

Was there fault causing injustice?

  1. Although the Council previously said it needed specific drawings from Mr X, it was satisfied it could determine the planning application with what Mr X provided. This was a judgement for the Council to take, and its explanation is satisfactory.
  2. The Council properly considered the impact on Mr B when deciding whether to approve Mr X’s planning application. The Council considered the representations Mr B, and others, made in response to the planning application. The Council clearly considered the 45-degree rule, and the impact on Mr B’s amenity even though Mr B disagrees with its conclusion. I can see no reason to question the Council’s professional judgement; it completed a site visit, considered the submitted plans, any neighbour objections including those from Mr B, and its own policy guidance to reach its decision.
  3. It was right for the Council to rely on a specialist report when assessing the flood risk. Mr X did not need to complete a sequential test as the extension was minor development, so there was no need for an exception test.
  4. The Council failed to tell Mr B the outcome of his first planning enforcement complaint.
  5. Mr B believes his house value is affected by Mr X’s building works. As I have found no fault in the Council’s determination of the planning application, I cannot say the Council’s actions have had any effect on Mr B’s house value. Mr B is concerned about cracks caused by the building works; that is a civil matter that he would have to take up with Mr X.
  6. The Council identified fault, as indicated in paragraph 15. I am satisfied the Council’s proposed remedy is sufficient to acknowledge the impact on Mr B. I also find the Council did not always give Mr B the outcome of its enforcement investigations, but the Ombudsman would not recommend any further remedy than that already offered.

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Final decision

  1. I have completed my investigation on the basis the apology and £250 already offered by the Council is sufficient to acknowledge Mr B’s time and trouble.

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Investigator's decision on behalf of the Ombudsman

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