Summary: Miss B and Mr C complain that, when granting planning permission for their neighbours to build a rear extension, extend the garage on their common boundary and install a window facing their home, the Council failed to take proper account of the impact on their amenity. The Ombudsman has closed the investigation into their complaint because we have found no fault in the way the Council considered the application.

The complaint

1. Miss B and Mr C complain that the Council was wrong to grant planning permission to allow their neighbours to construct a two storey-rear extension close to their boundary, increase the size of their garage, install a window in the garage facing the back of their home, and change the use of the garage to a habitable dwelling. They say that their neighbour has built on their land, and the Council has also failed to consider their complaint properly.
2. They say that:
• this has affected their outlook from their patio and rear windows;
• resulted in loss of light and overshadowing of their garden; and
• the window in the garage facing the back of their house will result in a loss of privacy to their rear windows and patio area.
3. They consider that the Council should have sought changes to the garage window and roof to limit the impact on their amenity. They also consider that the Council should apologise and compensate them for the injustice caused to them.

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What I have investigated

4. I have investigated Miss B’s and Mr C’s written complaint about the way the Council considered the planning application. For the reasons set out in the final section of this statement, I have not investigated other aspects of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I have considered the complainants’ written complaint and spoken with Miss B and Mr C. I have taken into consideration the complaint correspondence, the planning papers, photographs from the case officer’s site visit and from the complainants. I have had regard to the Council’s planning policies including its Local Plan, Residential Extensions Supplementary Planning Document and the Neighbourhood Plan. I have also sent the complainants and the Council a draft decision and considered their comments.

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What I found

8. The purpose of the planning system is to contribute to the achievement of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs.
9. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.
10. Planning permission is required for the development of land (including its material change of use). All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
11. 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 noise.
12. Loss of outlook is a material planning consideration, though loss of view is not. When considering loss of outlook, the local planning authority will consider whether development would have an adverse overbearing effect that would result in an unduly oppressive living environment for existing and future residents. This involves a degree of subjective judgement by the decision-maker.
13. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities). It is for the decision-maker to decide the weight to be given to any material consideration in determining a planning application.

Local planning policies

14. Several local planning policies are particularly relevant to the application and the complainants’ concerns.
15. Policy D1 of the Local Plan 2002 says:

‘…Development will not be permitted where it would result in material detriment to the environment by virtue of…

(b) harm to the visual character and distinctiveness of a locality, particularly in respect of the design and scale of the development and its relationship to its surroundings;

(c) loss of general amenity, including material loss of natural light and privacy enjoyed by neighbours and disturbance resulting from the emission of noise, light or vibration…’

16. POLICY D4 says:

‘The Council will seek to ensure that development is of a high quality design which integrates well with the site and complements its surroundings. In particular development should: -

(a) be appropriate to the site in terms of its scale, height, form and appearance…

(c) not significantly harm the amenities of occupiers of neighbouring properties by way of overlooking, loss of daylight or sunlight, overbearing appearance or other adverse environmental impacts…’

17. Policy 16 of the Neighbourhood Plan says:

‘Building extension will be permitted where it meets the following criteria…

e) The privacy, daylight, sunlight and outlook of adjoining residents are safeguarded.’

18. The Council’s Residential Extensions Supplementary Planning Document (SPD) provides further detailed guidance on extensions.

What happened

19. Miss B and Mr C (the complainants) live next door to a detached two-storey house. There was an L-shaped flat-roofed garage in their neighbours’ back garden on the boundary with their property. The garage door faced back towards their house at a distance of just over 11 metres. The floor level of the garage is around a metre higher than Miss B’s and Mr C’s garden.
20. In 2017, their neighbours applied for planning permission to extend and alter their house and the garage. The proposals included the erection of a two-storey rear and side extension. The garage would also be extended to change from an L-shape to a rectangle, with a pitched rather than flat roof. The existing garage door would be replaced with a wall containing a window and door.
21. The Council notified neighbours of the application, and the complainants made written objections. They raised concerns that:
• the proposed dormer window would overlook their lounge / dining room and be in line with their bedrooms, resulting in a loss of privacy;
• the extension would affect their view and result in a loss of light to their patio in the afternoon and evening;
• the south-facing window of the extended garage would overlook their patio and garden and cause a loss of privacy;
• the increased roof height of the garage, together with the height differential between the gardens, would impact on their amenity;
• as the garage is on the common boundary, any guttering would overhang their property.
22. In response to the complainants’ objections, the case officer visited and viewed the application site and took photographs showing the rear of both properties. The case officer discussed Mr C’s concerns with him, and he understood from that conversation that the Council would take his concerns into account.
23. The case officer prepared a report which described the proposals and the relevant local and national planning policies. It set out the consultation responses from neighbours and statutory consultees.
24. The report went on to discuss the planning considerations including the design and impact on visual amenity. It was accepted that the extension was of significant size, and would increase the building’s bulk, though not its height. The alterations to the garage were felt to make it more aesthetically pleasing.
25. The report also discussed the impact on residential amenity. It acknowledged that the two-storey element was closer to the complainants’ house than set out in the SPD but, as the complainants’ house was itself built up to the boundary, this was felt to be acceptable in terms of overbearing. It accepted that there would be some overshadowing, but this should be seen in the context that the garden is some 25 metres long. It was felt that there would be no materially harmful loss of light because the two-storey rear extension did not extend beyond the 45-degree line set out in the SPD. The report discussed overlooking in depth and concluded that there would be no materially harmful overlooking or loss of outlook.
26. The report also discussed the increased height of the garage (and the differential in ground levels). It was felt that the increased height would only be overbearing to part of the garden.
27. Overall, the adverse impacts of the proposals were not felt to outweigh the benefits (i.e. sustainable development).
28. The application was reviewed, and planning permission granted by a manager under delegated authority.
29. Mr C called the case officer. He says he was told that the decision had been taken and nothing further could be done. Once work started, Mr C raised concerns with the Council’s building control department about the garage’s footings being built on his land. He also contacted the planning department and again the case officer, who advised him that he could make a complaint if he was unhappy with the decision.
30. Mr C pursued his complaint through the Council’s complaints procedures. The Council found no fault in the way that officers had considered the application and so did not uphold his complaint, though it recognised that he might disagree with the planning judgments made.

My assessment

Overshadowing and overbearing – rear extension

31. The complainants consider that that the Council did not give enough weight to the degree of overshadowing and overbearing from the rear extension. They refer to the statement in the case officer’s report that the rear extension would not be materially harmful because only affects a portion of the garden, as the garden extends 25m further to the north.
32. They have explained that the patio is 5m long and steps down to a grassed area of 11m which is already overshadowed by the neighbour’s 7.7m garage. There is a further step down to a 5m storage and play area which is also partly overshadowed by trees and the garage. They say that that the increase in the height of the garage will cause further overshadowing and, when taken together, the changes to the extension and garage affect over half of the garden.
33. They have pointed out that, as acknowledged by the Council, the neighbour’s two-storey rear extension is closer to the boundary than recommended by the SPD, though this was considered acceptable because the complainants’ (one-storey) extension is built up to the boundary. They have explained that the rear extension will particularly affect their patio. They do not consider that the impact on their amenity complies with the threshold in the SPD, i.e. that an extension should not unreasonably overshadow or reduce the amount of sunlight.
34. The case officer’s statement that the change to the rear extension only affects part of the garden is correct. The impact of the changes to the garage was considered in a separate section of the report, so the impact of both the rear extension and the garage was taken into consideration.
35. As to the description of the length of the garden, I note that the garden is longer on the right boundary than the left. Given this, I do not consider that the description is materially inaccurate.
36. The Council was also entitled to take into consideration the fact that the complainants’ own extension is built up to the boundary when assessing the impact of their neighbours’ proposed extension.
37. I appreciate that the complainants disagree with the case officer’s judgement that the rear extension would not cause harm which would warrant refusal. But having regard to the plans, the case officer’s report and site photographs, I consider that the decision-maker had enough information on which to reach a judgment on this. Given this, it is not for the Ombudsman to question the merits of that judgement.

Overshadowing and overbearing – garage

38. The complainants consider that that the Council did not give enough weight to the degree of overshadowing and overbearing from the garage.
39. The officer’s report notes that the garage will appear taller, and the difference in ground levels between the gardens. However, it also notes that the increased height would only appear overbearing to part of the garden, the eaves height would be similar to the existing and the pitched roof would extend away from the boundary. The case officer therefore did not consider that the impact on amenity would be materially more harmful than at present.
40. I appreciate that the complainants do not agree with the case officer’s judgment. But I again consider that the decision-maker had enough information on which to reach a decision. So, the Ombudsman cannot question the merits of that decision.

Overlooking / loss of privacy from the garage

41. The complainants have pointed out that the case officer’s assessment in the report makes no mention of the potential loss of privacy from the garage window facing the back of their house. They ask why this was not referred to in the report. They do not consider that the decision-maker had enough information to judge the impact on their amenity.
42. The officer’s report referred to the complainants’ concerns about overlooking from the garage in the ‘representations’ section of the report. The report assessed the impact of the height of the garage but did not comment on overlooking from the garage.
43. However, there is no requirement for every potential issue to be assessed in the officer report. Rather this is a summary of the main issues. It seems to me that the case officer was aware of the complainants’ concerns about overlooking, having met them on site, but did not consider that this warranted refusal of the application.
44. Moreover, the plans clearly show the design of the garage and the addition of the window, the case officer’s report referred to the complainants’ concerns about overlooking, and the site photos show both the location of the garage and the rear windows. I see no fault here. I consider that the decision-maker had enough information to form their own judgement on this.
45. The Council has also explained that its decision was partly informed by the fact that there is a 6’ fence which would provide some screening and that the overlooking was at oblique angle, not direct. In response, the complainants have provided photographs which they consider demonstrate the overlooking from the garage window to their rear windows and patio area.
46. These photographs show that there is a degree of overlooking. However, the planning process does not guarantee that there will be no impact on neighbouring amenity. Rather, it seeks to balance planning considerations such as sustainable development against the impact on neighbouring amenity.
47. While I agree that there is some overlooking, I consider that the photographs also show that the overlooking to the patio is indirect and is partly screened by the garden fence, foliage and the wall at the side of the complainants’ patio. Moreover, the photographs also show that overlooking to the rear windows is also at an oblique angle and is partly screened by the garden and patio walls, foliage and the complainants’ own rear extension.
48. So, while I see no fault in the fact that potential overlooking from the garage window was not specifically referenced in the report, the Council’s position also seems to me to be borne out by the complainants’ photographs.

Loss of outlook from the rear windows

49. The complainants have suggested that, although there will be a loss of outlook is mainly from the garden, there will also be a loss of outlook from their two rear bedroom windows.
50. There was no specific reference in the officer’s report to the loss of outlook from the rear windows though, as set out above, that is not necessarily fault. It seems likely that this was because the impact on outlook from the rear windows was not felt to be sufficient to warrant specific comments in the report.
51. In any event, having regard to the plans and officer’s report which show the scale and location of the garage, and the site photographs, there was sufficient information for the decision-maker to judge whether the increase in the size of the garage would have any material impact on outlook.

Change of use

52. The Council has explained that the whole of the neighbouring property falls within Use Class C3 (Residential). The use of the internal space does not constitute development so, if the neighbours choose to use the garage as a habitable room, that does not change its use in planning terms, provided that the use remains ancillary to that of the main house. As this did not constitute development, the Council has explained that there was no need to mention this in the description.
53. I see no fault here. The Council cannot control the use of the garage provided that its use remains ancillary to the main house. However, it has included a condition such that the use of the garage must remain ancillary to the main house and it cannot, at any time, be occupied as a separate dwelling.

Complaint handling

54. I understand that Mr C was unhappy that he was not initially advised that he could complain. However, I do not know exactly what was said in that conversation, and it seems to me that the case officer was correct in advising him that she could do nothing to change the planning application once permission was granted.
55. As to the investigation of the complaint, I note that the complainants feel that another officer should have taken up their offer to visit their home to assess the impact of the proposals. It seems to me however, that the task of the officers responding to the complaint was to decide whether the planning application had been properly considered. It was not their task to make a fresh judgment on the merits of the application. I see no fault here. It seems to me that officers reviewing the complaint could reach an informed view by reviewing the planning papers.

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Final decision

56. I have closed my investigation because I have found no fault by the Council.

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Parts of the complaint that I did not investigate

57. I have not investigated the complainants’ concerns about whether their neighbours have built on their land. This is because any dispute over the ownership of the land is a private legal matter between the complainants and their neighbours. This is not a material planning consideration and so was not a matter that the Council could consider as part of the planning process.

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Investigator's decision on behalf of the Ombudsman