Birmingham City Council (19 001 144)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 30 Mar 2021

The Ombudsman's final decision:

Summary: There is no fault in the way the Council reached decisions on two planning applications submitted by Mrs X’s neighbours. However, the Council failed to keep Mrs X informed of its investigations into her concerns that the development was not being built to plan. The Council should apologise to Mrs X and pay her a financial remedy to acknowledge the unnecessary time and trouble it caused her.

The complaint

  1. Mrs X complains about the Council’s handling of her neighbour’s planning applications to extend their property. In particular, she complains:
    • Her neighbour’s plans for one application were not available to view online.
    • The Council failed to properly consider the cumulative impact of the two proposals.
    • The Council is wrong to allow her neighbour to combine elements of both of the approved schemes.
    • The Council has not properly considered her concerns that the building works do not comply with the approved plans.
    • The Council did not acknowledge or respond to her letter to the Chief Executive.
  2. Mrs X says the approved extensions will have a significant impact on light to her living room.

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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 have spoken to Mrs X about her complaint and considered the information she provided to the Ombudsman. This includes photographs of her neighbour’s extension.
  2. I have also considered the Council’s response to my enquiries. This includes copies of plans for the neighbour’s extension and the Council’s comments on the complaint.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning law

Planning applications

  1. All decisions on planning applications must be made in accordance with a council’s development plan unless material considerations indicate otherwise.
  2. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.
  3. Councils will notify local people when a planning application is received and give them an opportunity to comment. The volume or strength of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission. However, councils must consider any material planning considerations raised in comments from local people.

Permitted development

  1. 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.
  2. Permitted development rights, allow householders to extend a house without needing to apply for planning permission if specific limitations and conditions are met.
  3. For a semi-detached house, as in this case, a householder can build a single storey rear extension of up to three metres in length so long.
  4. Householders can build larger single storey extensions without making a full application for planning permission under a process known as “prior approval”. This is a form of permitted development. In the case of semi-detached properties, householders can build single storey extensions up to six metres long under this process.
  5. To apply for prior approval, the applicant must notify the council with his plans for the extension. The council tells the nearest neighbours, who can object if the extension is likely to cause them harm. If there are objections, the council must assess the harm and decide whether it is acceptable. (The Town and Country Planning (General Permitted Development) (England) Order 2015).
  6. When a council notifies neighbours about an application for prior approval it must provide them with a notice which includes the following information:
    • Describes the development by setting out the information provided to the council by the applicant.
    • Provides the address of the proposed development.
    • The deadline for making comments on the application.
  7. The Council is not required to provide neighbouring properties with copies of drawing or other plans for prior approval applications.

Openness of Local Government Bodies Regulations 2014

  1. The Openness of Local Government Bodies Regulation 2014 places duties on local councils to publish decisions and background papers on their websites when making certain decisions. These are decisions which have been delegated to officers relating to:
    • The grant of a permission of license;
    • Decisions which affect the rights of an individual; or
    • Awards of contracts or expenditure which materially affects the local council’s financial position.
  2. Councils are required to make copies of background papers available to the public for a period of four years and records of decisions for a period of six years.

Planning enforcement

  1. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:
  2. “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 July 2018, paragraph 58)
  3. The Council has published a Local Enforcement Plan setting out how it will deal with breaches of planning control. The Plan says:

“The Enforcement Officer will endeavour to provide you with updates when key events take place in a case, such as the serving of an Enforcement Notice. However, should you wish to enquire about the enforcement case, you can contact the investigating officer for an update”.

What happened

  1. Mrs X lives in a semi-detached property. In 2018 her neighbour, whose property is attached to Mrs X’s house, applied for planning permission to extend their property.
  2. Mrs X’s neighbour submitted two planning applications to the Council at the same time:
    • The first application was for prior approval for a 5 metre deep single storey extension to the rear of the property. I shall refer to this as Application 1.
    • The second application was for planning permission for a two storey rear and side extension and a small rear extension. I shall refer to this as Application 2. The single storey rear extension would form part of the 5 metres deep extension which the subject of Application 1.
  3. Mrs X made comments on Application 1. She said the extension would block light to the rear of her property. Mrs X also made comments on Application 2. She said the extensions would cause loss of light to the rear of her property, part of her garden would be overlooked and the extensions would be “dominant and overbearing”.
  4. Mrs X says the plans were not available on the Council’s website from December 2018. The Council says it removed documents after the deadline for comments on the applications had elapsed. It said it was required to redact the planning application to remove personal information about the applicant. This affected a number of other planning applications the Council was dealing with at the time.
  5. Papers in relation to Application 2 were later added back to the Council’s website. Whilst the papers were unavailable the Council’s website advised people that they could still request copies of pans and documents by e-mail.
  6. The Council gave prior approval for Application 1 in January 2019. It considered the impact of the 5 metres extension on Mrs X’s property in a case officer report. It said:

“The 45 Degree Code is applied to protect neighbouring amenities by virtue of loss of light, privacy and outlook from any new form of development. The proposal would breach the 45 Degree Code to adjoining property [Mrs X’s property] by a minimal breach of approximately 0.2m. However, it is considered that in merit this would have a de-minimalised impact on the amenities of neighbouring occupiers by way of loss of light and outlook. I therefore consider that this proposal is acceptable as it would not have a detrimental impact on neighbouring occupiers and does not warrant sustainable grounds for a refusal”.

  1. The report said the property was detached and referenced previous planning permission granted nearby in 2003 when the relevant planning permission was granted in 2013. The Council accepts this in incorrect and says this was a typing error made by the officer.
  2. The Council also approved planning permission for Application 2 in January 2019. The Council considered the impact of the extensions on Mrs X’s property in its case officer report. It said:

“The proposed development complies with the objectives of the 45 Degree Code. Whilst the single rear lounge room extension would breach the code by 0.2m to the nearest rear ground floor habitable window of [Mrs X’s property], it is considered this breach is de-minimis and overall would have no detrimental impact on neighbour’s light or outlook in order to warrant a refusal”.

  1. The report also said:
  2. “… scale, mass and design of the proposed development is acceptable. I consider the proposed extensions would not have a detrimental impact upon the architectural appearance of the property or the visual amenity of the surrounding area”.
  3. In April 2019 Mrs X complained that her neighbour’s extensions were not being built in line with approved plans. The Council visited the site in April. When the Council visited the site it also spoke to Mrs X. The notes of the Council’s visit say:

“The visit confirmed that the development of the above extensions had commenced. I measured the elevation nearest to the adjoining occupier… and its depth was 5m and accorded with the prior approval dimension. [Mrs X] also has a single storey extension. 

“I did as requested and visited [Mrs X]. She was distressed at the prospect of this rear extension and was slightly confused regarding the planning process because of contradictory advice. I did my best to explain the process.  

Planning consideration and conclusion:  From a strictly planning point of view the two developments, the prior approval and the planning consent, should have been constructed at different times but instead is now just one engineering exercise. Regardless of this, the result would still be the same because both elements of the development have planning consents”. 

  1. There are photographs on the Council’s records which show the construction had started. There are further photos dated June 2019.
  2. Mrs X says she wrote to the Council’s Chief Executive in May but received no reply or acknowledgement. The Council accepts it received the letter but is not able to locate it or explain what has happened to it.
  3. Mrs X contacted the Council through an online form on 3 July 2019. She said:

“I have contacted the planning several times before via the phone. The build next door is larger than planned both downstairs and upstairs as I have stated before. I have not had a party wall agreement. And now they have removed part of my roof without asking permission.”

  1. Mrs X contacted the Council again through an online form on 9 July 2019. She explained the issue with her roof had been resolved. However, she also said:

“I have… contacted the Planning via phone and email on numerous occasions about concerns that the extension is larger than the proposed plans. I stated that the plans were not available to view online since December. I have been checking regularly and last week noted that they were at last available to view. I sent a letter to The Chief Executive with our concerns towards the end of May and since then the upstairs has also been constructed larger than the plans. It comes closer to our house and extends further out than it should. This is blocking even more sunlight and natural light out of our house”.

The Council replied to Mrs X on 18 July 2019 and said:

“From the information available to me, I can advise that following receipt of your initial complaints dated 2nd and 3rd April an enforcement case was registered... An acknowledgement letter confirming the case reference number and investigating officer details was sent to you on 11 April.

“The case is currently being investigated and [an officer] has undertaken a site visit. [The officer] is currently on leave, I have copied him into this email so he is aware of your new concerns and will ask him to contact you on his return to the office next week”.

  1. The Council visited the site on 15 August 2019. The notes of the visit say:
  2. “… prior to closing this case I made a final visit just to check if the development accorded with the approved plans attached to consent… The owner has installed a flat roof on the single storey side extension opposite... This change is de-minimus and really to the advantage of [Mrs X’s property] and the light received to that property because the approved show a pitched roof. This planning enforcement case can be closed the development accords with the planning approvals”.
  3. The Council confirmed its decision to close the case in a letter to Mrs X.
  4. Mrs X says the roof on the single storey extension is not a flat roof.

My findings

  1. There is no fault in the way the Council dealt with Application 1. The Council considered Mrs X’s comments and the impact of the development on her property. The Council found the development would breach its 45 Degree Code. Just because a new development breaches the 45 Degree Code does not mean the Council must refuse planning permission. The Council has considered the breach and the impact of the new development on Mrs X’s property. It found the breach was not significant enough to warrant refusing planning permission. That is a decision the Council is entitled to take in this instance.
  2. The Council has accepted there were errors within the case officer report but this did not affect the consideration of the impact of the development on Mrs X’s home. Having considered the case officer reports for both applications I think it is likely the officer made a typing error as suggested by the Council. Therefore I do not think this fault had an impact on the Council’s decision to grant planning permission for the development.
  3. The law only requires the Council to provide a written description of a development to neighbouring properties when it receives an application for prior approval. The Council did so and so there is no fault in the way it publicised the application.
  4. However, the Council has failed to make a copy of its decision and background paperwork available on its website under the Openness of Local Government Bodies Regulations 2014. The Council should have published its decision and relevant background papers on its website but this has not happened. However, the Council provided a copy of its officer report to Mrs X and so I do not consider this has caused her an injustice.
  5. There is no fault in the way the Council considered Application 2. The relevant plans and paperwork were available to view during the time when the public were able to comment on the application. Mrs X was able to make her comments and the Council considered these. Therefore, there is no fault in the way it reached its decision to grant planning permission.
  6. In its response to Mrs X’s complaints the Council said her neighbour should have submitted one overall application or submitted Application 1 after Application 2 had been approved. However, there is nothing to stop the neighbour submitted both applications at the same time and the Council is required to reach a decision on both. Therefore, there is no fault in the Council considering both applications at the same time.
  7. There is also no fault in the Council’s decision not to take enforcement action. The Council has been out and checked that the development is being built in line with approved plans. The Council is not required to take action just because there is a breach of planning control. It has to decide whether there are good reasons for taking action. As the development that has been built will have less of an impact on Mrs X than the approved plans the Council has decided not to take action. That is a decision the Council is entitled to take in these circumstances. I note that Mrs X does not agree that the single storey extension has a flat roof, however the relevant part of the Council’s decision on whether to take enforcement action is that the roof as built has less of an impact on Mrs X’s home than the roof design which was approved. That is a decision the Council is entitled to take in these circumstances.
  8. There is fault in the way the Council inspected the property as it failed to provide Mrs X with updates on its progress. I can see the Council visited the site during construction but I have seen no evidence it provided Mrs X with any updates between her raising her initial concerns in April until it reached a decision not to take enforcement action in August. That is a period of four months. When Mrs X chased the Council for an update in July it advised her the officer responsible was on leave. However, there is no evidence she was provided with any updates once the officer returned.
  9. The Council says it “spent considerable time updating [Mrs X] and explaining details of the prior approval and deemed consent process to her” during its site visit in April 2019. However, there is no evidence the Council explained the outcome of the site visit to Mrs X and that it had decided not to take enforcement action. This is supported by the fact Mrs X continued to contact the Council about the issue.
  10. The Council says Mrs X’s further complaints in July were about the two storey part of the development and so these were separate to the complaint she raised in April. This is not supported by the online forms completed by Mrs X at the time which say she was unhappy with the entire development. The Council also
    e-mailed Mrs X in July 2019 to say it was continuing to investigate her complaint from April 2019. Furthermore, if the Council was satisfied there was no further action necessary in April 2019 it should have closed its investigation and written to Mrs X explaining why it was doing so.
  11. Although the Council’s Enforcement Plan does not give timescales for providing updates it does say these will be given when “key events take place”. I would have expected the Council to advise Mrs X of its findings after it had visited the development and provided her with updates during its investigations. Failure to do so was fault and Mrs X was put to unnecessary time and trouble pursuing the Council for a response.
  12. The Council also lost Mrs X’s letter she sent to the Chief Executive in May 2019. The letter was sent at a time when the Council was investigating Mrs X’s concerns about the development not being built to plan. As set out above the Council failed to provide Mrs X with updates on its investigations and this caused her unnecessary time and trouble. I consider any failure by the Council to acknowledge or respond to her letter to the Chief Executive to be part of the same injustice.
  13. There is no fault in the Council not responding to Mrs X’s concerns about her neighbour interfering with her roof. This is a private matter between Mrs X and her neighbour.

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Recommended Action

  1. The Council should take the following action to remedy the injustice it caused to Mrs X as a result of the fault I have identified:
    • Write to Mrs X to apologise for failing to provide her with updates on its enforcement investigation.
    • Pay Mrs X £100 to acknowledge the unnecessary time and trouble she was put to chasing the Council for updates.
  2. The Council should take this action within 4 weeks of my final decision.
  3. The Council should also take the following action to improve its services:
    • Remind enforcement staff to provide updates to people who have raised concerns about breaches of planning control during any investigation. The Council should take this action within 4 weeks of my final decision and provide the Ombudsman with evidence of what action it has taken.
    • Review its record and publication policies for delegated decisions to ensure relevant decisions and background papers are being published online in line with the Openness of Local Government Bodies Regulations 2014 and remain available for the relevant period. The Council should take this action within six months of my final decision and provide the Ombudsman with evidence of what action it has taken.

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Final decision

  1. I have completed my investigation as I have found fault causing an injustice. The action I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman

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