Summary: Mr B complains about the Council’s approval of a dormer window on an extension next to a home he owned (and is now owned by his daughter). We uphold the complaint finding fault in the Council’s failure to adequately scrutinise amended plans and not consulting Mr B on those amendments. It also dealt poorly with his complaint. We consider these faults caused him unnecessary frustration, time and trouble and professional costs. The Council has agreed action to remedy this injustice set out at the end of this statement.

The complaint

1. I have called the complainant ‘Mr B’. He complains on his own behalf and that of his daughter ‘Ms C’. Their complaint concerns the Council’s approval of a dormer window on a house next to one now owned and occupied by Ms C (which Mr B part-owned for some of the time covered by the complaint). In particular, Mr B complains the Council:

• did not properly scrutinise an amended plan presented by the developer of the neighbouring house, which increased the size of the dormer window;
• did not consult him or his daughter about the amended plan;
• dealt poorly with his complaint about these matters.

2. Mr B says as a result the Council approved a dormer extension which is overbearing and creates overlooking into Ms C’s home. He also considers it has reduced the value of her home. Mr B also says the Council’s delay in dealing with his complaint put him to unnecessary time and trouble and that he incurred professional costs, consulting surveyors in response the developer building the dormer window on a scale greater than anticipated.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman and any supporting information he provided.
• Information about the planning applications at the centre of this complaint, available from the Council website. I also made written enquiries of the Council.
• Relevant local planning policy and national guidance.
• Comments made by Mr B and the Council in response to a draft decision statement where I set out my proposed findings.

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What I found

Background and key facts

7. I will refer to the house Ms C lives in (that formerly lived in and part-owned by Mr B) as ‘the complainants’ house’. It is a semi-detached property on a residential street in the Council’s area. The complaint centres on development of the neighbouring house. The neighbouring house is set back from the building line of Ms C’s home. Meaning that before any development took place it projected around seven metres to the rear.
8. In July 2017, the Council received a planning application to extend the neighbouring house. The plans proposed replacing an existing single storey side extension running alongside to the boundary with the complainants’ house with a two-storey extension. The plans also proposed installing a dormer window in the rear of around 8.5 metres width and ending around 2 metres from the flank wall closest to the complainants’ house. The plans did not include any windows in the flank wall of the development that would face on to the complainants’ house.
9. The Council consulted on these plans including sending a letter to the complainants’ house. It received no objections to the plans.
10. In August 2017, the neighbour presented amended plans. These included changes to the design of the extension to the front, side and rear. At the rear, the neighbour proposed extending the dormer by around an extra 1.5metres, to run almost the full length of the roof. The plans proposed the dormer would end around 40cm nearest the flank wall facing the complainants’ house. To the side the developer proposed installing two windows, one at first and one at second floor level.
11. The Council treated these changes as minor amendments to the plans. It did not record why it took this decision.
12. The Council did not consult on these amended plans. It did not record why it took this decision.
13. A Council planning officer prepared a report which explains how they analysed the development proposals. The report cites various local planning policies. These include policy DBE10 from the Council’s adopted local plan which requires that residential extensions complement the existing building with “close attention to” matters such as the scale, form and detail of the proposals. Also, policy DM9 from the draft local plan. This says all development must “take account of the privacy and amenity of the development’s users and neighbours”. The Council expects proposals:

• Should provide adequate sunlight and daylight to neighbours.
• Not create overlooking or a loss of privacy “detrimental to the living conditions” of neighbours.
• And “not result in an overbearing or overly enclosed form of development which materially impacts on either the outlook of occupiers of neighbouring properties”.

14. The officer’s report said the development would “not cause excessive harm” to the amenity of neighbours. It noted windows to the side of the property facing the complainants’ house would be obscure glazed. But it did not mention the dormer window.
15. A senior officer counter-signed the planning officer’s report. The Council therefore approved planning permission based on the amended plans.
16. Mr B says he did not know about the amended plans until April 2018 when the neighbour began building the extension. Mr B contacted the Council when he saw the dormer was far bigger than he expected. He also consulted a surveyor when he learnt the Council had approved a larger dormer window than that he had anticipated. Mr B wanted to check if the larger window impacted on any ‘rights to light’ he enjoyed as well as advice on how he might challenge the planning permission given by the Council.
17. The Council looked at the development and found the dormer did not comply with the amended plans. The neighbour had extended the dormer to the edge of the roof. The Council told the neighbour he needed planning permission for this further change. The neighbour went on to present an amended planning application seeking permission for the dormer ‘as built’.
18. The Council refused planning permission for the change to the dormer in August 2018. In a report explaining its decision, the Council again cited local planning policies including policies DBE10 and DM9. The Council said the dormer did not cause “excessive harm to the amenity” to any occupier of the complainants’ house. This was because it “would not result in a significant loss of light, outlook or privacy”. However, it considered the dormer was “over dominant and incongruous when viewed to the rear garden areas” including from the garden of the complainants' house. The report said the lack of any inset from the roof meant the view from the complainants’ house was of “the dormer window and existing roof appearing as one entity”. While the overall effect was “crude”, with the dormer “dominating the roofscape of the application dwelling and giving the appearance of another storey”.
19. The neighbour appealed the Council’s refusal of planning permission but was unsuccessful. The Planning Inspectorate upheld the Council’s decision. They too considered the dormer “overly large and dominant on the rear roof scape” causing “unacceptable harm to the character and appearance of the area”. The Inspector also made comments similar to the Council in consideration of the impact of the dormer on the complainants’ house. It said this did not “give rise to significant harm to the living conditions […] in terms of overshadowing, loss of light or outlook, compared with that previously granted planning permission”.
20. The neighbour went on to reduce the dormer window to that approved in August 2017.

Mr B’s complaint

21. As noted previously, Mr B first contacted the Council about the dormer in April 2018. Having identified the amended plans Mr B expressed dissatisfaction the Council did not consult him about them. He also complained about the impact of the increased size of the dormer. One of its senior officers also advised Mr B he could complain about its handling of the 2017 application. Mr B confirmed this is what he wanted to do.
22. The same senior officer acknowledged Mr B’s complaint and said they would aim to reply before the end of May 2018. When Mr B received no response he chased the Council and did so again in July 2018 when the Council missed another timescale it gave Mr B for it to reply. In December 2018, Mr B contacted it again having still not received a reply. The senior officer said that he thought “events had overtaken” the complaint but that he would reply by January 2019.
23. Mr B still did not receive a reply. So, he chased the Council again in March 2019, around the time the senior officer left their post. The Council says the senior officer did not handover Mr B’s complaint for anyone else to answer it. Mr B then contacted this office. In May 2019 the Council told us it would now reply to Mr B’s complaint but failed to do so before January 2020, despite us reminding the Council of its commitment.
24. By this time, I had begun this investigation. However, I agreed the Council could still write to Mr B setting out its response to his complaint. In its letter of January 2020 and a subsequent response sent to him later that month the Council:

• Defended its decision not to consult neighbours on the amended plan in August 2017. It said it was under no duty to do so. This is after taking account of government guidance and its own policy on consultation set out in its Statement of Community Involvement.
• Defended its decision to approve the amended plans. It said officers who considered the application in August 2017 must have thought the plans acceptable to approve them. It believes they considered the impact of the development on the amenity of the occupiers of the complainants’ house.
• Apologised for its poor handling of Mr B’s complaint. The Council recognised the extensive delay in its reply and the frustration, time and trouble caused to Mr B as a result. It offered him a financial remedy of £250 in recognition of this.

My findings

The complaint about consultation

25. I considered each part of Mr B’s complaint in turn, beginning with that about consultation. By law, local planning authorities should consult on planning applications, but they are not required to consult on minor amendments to plans. However, a local planning authority has discretion to consult neighbours on amended plans. In 2014, the Ombudsman issued advice to councils that they should explain any policy on publicising or consulting on amended plans in a Statement of Community Involvement.
26. I have considered the Council’s Statement of Community Involvement. Unfortunately, it is silent on the issue of amended plans. So, the Council does not explain under what circumstances, if any, it will undertake consultation on amended plans. The absence of policy does not mean it automatically follows the Council had to consult neighbours on the amended plans in this case. But any consultation policy would need to consider the potential impact of amended plans on neighbours affected by development. Usually we expect the Council to consult on any amendments to plans that have a more negative impact on neighbours than the original plans. This would apply even if the Council does not consider the impact enough to refuse permission. The Courts have adopted a similar approach (see (R (Holborn Studios) v Hackney LBC [2017] EWHC2823 (Admin))
27. I find the amended plans increased the size of the dormer which overlooks the garden of the complainants’ house. The amended plans also put windows in the side of the property facing the house. Both these changes would affect the occupiers of the complainants’ house more than the developer’s original proposal. So, the Council should have consulted on the amendments. Its failure to do so was a fault.
28. The injustice this caused Mr B was that of a missed opportunity to view the plans and make objections about the impact of these changes. I am also satisfied it caused Mr B to seek professional advice, something which he did not consider necessary when consulted on the neighbours’ original plans.

The complaint about approval of the amended plans

29. I have gone on to consider the Council’s approval of the amended plans. The first matter I note is the absence of any commentary in the August 2017 planning officer report on the dormer element of the extension. Given its size and prominence as part of the extension I can see no justification for why a planning officer report would not need to address its impact. Because officers involved in the decision have left the Council, I cannot find out if the omission was deliberate (because they thought it unnecessary) or because of inattention. But it does not matter which applies as the failure to do so was a fault whatever the reason.
30. There is nothing therefore which explains why the Council considered the extended dormer acceptable in 2017. The Council should have set out its consideration against local planning policies it noted, of which policies DBE10 and DM9 appear most relevant. The former aims to ensure that extensions complement existing buildings. While the latter aims to reasonably protect the amenity and privacy of neighbours. It considers how to achieve this aim this against various tests, such as considering the impact of development on neighbour’s light and overlooking. I note that one facet of “amenity” is to consider if development is potentially overbearing on neighbours. So, while a development may not impact light levels or compromise privacy through overlooking it could still impact on a neighbour’s amenity because it is overbearing. I point this out because in its analysis of the 2018 application for the extension ‘as built’ the Council appeared to separate out the test on amenity as only applying to the development’s potential to block light or create overlooking.
31. To consider how the Council should have applied itself to these policies in 2017, I consider it relevant to consider how the Council assessed the 2018 planning application. I recognise the dormer ‘as built’, in 2018, was larger than that approved by the amended plans, but not significantly so. The only difference in the appearance of the two schemes lies in the approved plans showing the dormer slightly 'stepped in' from the roofline.
32. I think it reasonable to assume that in 2017 the Council would not have come to any different view to that in 2018 on the dormer’s potential to create overlooking or block light. I also consider that view is one the Council could reasonably reach on the facts. A dormer of any size may block some light to the complainants’ house. But I consider the impact minimal given the pre-existing rearward projection of the neighbouring property. The dormer also did not provide any significantly different views into the garden of the house than those provided by pre-existing rear windows.
33. When it comes to the visual impact of the dormer, I consider the stepping in detail means the Council would not have said the 2017 amended plans led the dormer to appear as “one entity” when viewed from the complainant’s house. But this formed only part of the Council’s objection to the planning application in 2018. The Council also considered the dormer ‘as built’ over dominant and incongruous, appearing like a third storey on the house. I cannot see why similar considerations should not have applied in 2017 also, given the ‘stepping in’ of the dormer makes only a small difference to its overall size. It still extends across almost the full width of the roof and almost to its full height.
34. I consider on the balance of probabilities therefore the Council would, if it had properly considered the amended plans in 2017, have found this impact ‘over dominant’ and ‘incongruous’ also. While the Council would not have refused a dormer as part of the extension, I think it reasonable to conclude it would have only given permission for something more modest to comply with its local planning policies.
35. However, I consider there is a distinction between describing the dormer as ‘over dominant’ rather than ‘overbearing’. The former describes the relation of the dormer to the host building. The latter is a term used to consider the impact of a development on its neighbour. I do not find therefore the Council would have considered the amended plans created an overbearing effect on the complainants’ house affecting the amenity of its occupiers.
36. In which case the injustice caused to Mr B or Ms C by the Council’s failure to properly assess the dormer in 2017 is relatively minor. It has led to the approval of an extension that appears inappropriate, but this does not directly impinge on its neighbours. Ms C will see the extension when in her garden and it may be visually unattractive to her and out of keeping with the surrounding houses. But it does not cause any harm to amenity that we would seek to remedy by more than an apology.

The Council’s handling of the complaint

37. The Council has already acknowledged its fault here. The chronology above details a series of missed deadlines in responding to Mr B’s complaint. It is particularly concerning that these continued even after we made the Council aware of its initial failure to respond to the complaint.
38. As a result, Mr B experienced much unnecessary time, trouble and frustration in pursuing his complaint. This was his injustice.
39. I recognise the Council has apologised for that. It also offered a financial payment that I think fair in recognition of this particular injustice. But I asked to agree further action in view of my other findings in this case.

Agreed action

40. To remedy this complaint, the Council has agreed that within 20 working days of this decision it will:

• provide a further apology to Mr B recognising the findings of this investigation;
• pay Mr B a financial remedy of £2575; I have increased the amount offered previously by the Council to also take account of the lost opportunity for Mr B to comment on the amended plans at the centre of this complaint and to cover his reasonable professional costs.

41. To prevent a repeat of the faults in this case, the Council has also agreed that within three months of this decision it will have:

• either amended its Statement of Community Involvement to explain how it proposes to consult on amended planning applications or provided a written commitment that it will do so with a timescale for that completing; this is with a view to ensuring it consults on amended planning applications which may have a more negative impact on neighbours than those originally submitted;
• reviewed its current handing of complaints received by its planning services; this is to ensure these are properly logged and subject to some scrutiny from those with overall corporate responsibility for answering complaints; a system should be in place to identify cases where a response is overdue so that staff are reminded of the need to provide a reply.

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Final decision

42. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr B. The Council has agreed action that will remedy that injustice. Consequently, I can complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman