Summary: Mr B complains about the Council’s consideration of a planning application for an extension at the property next to his home. There was fault in the Council’s analysis of the impact of the development on Mr B’s property but it did not alter the decision made. The Council will apologise to Mr B

The complaint

1. Mr B complains about the Council’s consideration of a planning application for an extension at the property next to his home. He complains the Council did not consider properly the impact the extension would have on the daylight/sunlight to the windows in his property which directly face the gable of the extension.
2. He says the extension will reduce the light to one bedroom and the kitchen/dining room. He considers he will have to reconfigure his house and install a skylight to ensure adequate light.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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. I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Summary of events

7. Mr B’s neighbour applied for planning permission for a part single and part two-storey side and rear extension. The relationship between the development site and Mr B’s property is unusual as Mr B’s house is on the corner. There is a first floor window to Mr B’s son’s bedroom which directly faces where the two storey part of the extension will be. There are two further ground floor windows and a conservatory. The development is to the south of Mr B’s home.
8. The application was considered at planning committee with an officer report recommending approval. Members of the planning committee carried out a site visit a few days before the committee meeting. Mr B was home during the site visit and says he heard members of the committee laughing and joking with the homeowner.
9. The planning committee approved the planning application.
10. Mr B complained to the Council. He was not satisfied with the response so complained to the Ombudsman.

Analysis

The way planning decisions are made

11. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
12. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It constitutes guidance in drawing up plans, and is a material consideration in determining applications.
13. Where the development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
14. 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.
15. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
16. Government statements of planning policy are material considerations.
17. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
18. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Impact on Mr B’s property

19. The crux of this complaint is the impact the extension will have on Mr B’s property and whether the Council considered that properly.
20. The report refers to a previous planning application for a similar form of development that was 1m away from Mr B’s property at first floor. One of the reasons for refusal was the unacceptable impact on Mr B’s home – it said the proposed development would result in an overbearing impact, loss of light, a worsening of the existing substandard situation and an oppressive environment for the dwelling’s occupants. The commentary in the report did not refer to windows in Mr B’s property and did not give any specific analysis of the impact on them. It referred in general terms to the impact on Mr B’s property in respect of daylight/sunlight. It said the proposal would not be overbearing or dominant and would cause no additional harm to the living conditions in terms of sunlight, daylight and overshadowing above and beyond what is already experienced.
21. In responding to Mr B’s complaint the Council accepted the reference to “no additional harm” was too prescriptive. But the officer went on to say the development was not considered to be overbearing or dominant when compared to the existing relationship. He said Members were not misled as they could see the relationship at the site visit and there was other assessment of the relationship in the report.
22. The Council has planning guidance on householder extensions. This states there should be a distance of 13m between a blank gable wall and a principal window. This was referred to specifically in the consideration of the previously refused application. The report refers to other sections of this guidance in the assessment of the impact but it does not refer to this part. In commenting on this point the Council said it was clear in the report that the current layout of the two properties was given precedence as a material consideration.
23. There was fault in the Council’s consideration of the impact on Mr B’s property of the proposed development. The report gave no proper analysis of the impact on the windows in Mr B’s property that face the gable wall and in particular the bedroom window. The relevant policy consideration was not referred to even though it had been a ground for refusal in the previous application and the comment that the extension would cause no additional harm is flawed. I say this because the distance between the window and the gable wall is 2m. Before it would have been about 3.5m. This is a significant reduction and I consider it to be self-evidently wrong to say that this will not reduce the daylight to Mr B’s property.
24. Where there has been fault I have to consider what difference that has made and whether it has caused injustice to the complainant that should be remedied. Here there had been a site visit and Mr B and other objectors addressed the committee. Mr B made clear his concerns were about the impact the development would have on his property and to light to windows on the elevation facing the site. Mr B has argued that he did not go into detail about the relationship of the window to the room it served as he assumed the Council would provide the proper analysis. He considers that the failings in the report that I refer to above meant that members of the committee did not have all the relevant information before them. Had they done so he considers there is a good chance they would have considered that the impact was unacceptable.
25. I understand the arguments Mr B makes. I agree that the report falls short and does not provide an adequate analysis but I am not persuaded the decision would have been different. I consider that members of the Committee could have been in no doubt about the relationship of the properties and understood what they were considering. I do not consider that further detail about the layout of Mr B’s property would have altered their view. So, although I consider there was fault in the report, I cannot say that this has altered the decision made.
26. Mr B has said that he has been put to time and trouble and distress in making his case against the planning application and in pursuing his complaint. He considers there should be some financial remedy from the Council for this. I will only ask the Council to provide a financial remedy where I consider the complainant has suffered a significant injustice as a result of the fault found. I accept Mr B was put to time and trouble in making his objections to the planning application but I do not consider that stems from the fault by the Council. Even if there had been no fault by the Council Mr B would still have objected and had the same costs and time and trouble associated with that. He also had the time and trouble associated with making a complaint but I do not consider that in itself is grounds for a financial payment. However I consider the Council should apologise for the failings found.

Validation requirements

27. A local planning authority may request supporting information with a planning application. Its requirements should be specified on a formally adopted ‘local list’ which has been published on its website less than two years before an application is submitted. Local information requirements have no bearing on whether a planning application is valid unless they are set out on such a list.
28. The Council’s validation list as published on its website at the time of this application required that where development would have an obvious potential for adverse impact on existing levels of sunlight/daylight for neighbouring properties a sunlight/daylight assessment should be submitted.
29. The Council has commented that its validation checklist is over two years old so it could not require compliance with the requirements. It is currently revising its local requirements. The Council has provided a copy of the revised checklist and this does not require the submission of a daylight/sunlight assessment.
30. The Council should not have an out of date validation checklist on its website as it is misleading for both applicants and neighbours. But given the Council is intending to remove the requirement for a sunlight/daylight assessment from its requirements I cannot say this failure to update the validation requirements has had any consequence for the consideration of this application.

Site visit

31. Mr B considered that the site visit was not conducted professionally and there was inappropriate contact between the Members of the Committee and the homeowners. The officer who attended the site visit has commented that he did not consider there was anything out of the ordinary or inappropriate.
32. I cannot come to any view on this point. Mr B’s vew is different to the officer’s who attended but I cannot say I prefer one view over the other. It would be possible for Mr B to make a complaint about Member’s conduct as a Standards complaint if he wished.
33. But this is not a significant point in terms of my consideration of the complaint. There was fault as I explain above and the conduct of the site visit does not affect my conclusions on that point.

View of the development

34. The report says there will be no view of the development from any public vantage points. Mr B says this is not correct and it will be visible from various public footpaths. The Council accepts there would be views between properties to the rear elevation but it considers that the comment has to be seen in the context of the whole report and the analysis of the impact of the development on the street scene.
35. The comment was not accurate but it is not significant in the consideration of the application. This was a minor point and it does not undermine the consideration that was given to the impact of the development on the street scene and the area as a whole which was sound.

Agreed action

36. The Council will, within a month, of the final decision apologise to Mr B for the failings in the report.

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Final decision

37. There was fault in the Council’s analysis of the impact of the development on Mr B’s property but it did not alter the decision made. The Council will apologise to Mr B.

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Investigator's decision on behalf of the Ombudsman