Thurrock Council (19 008 101)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 25 Jun 2020

The Ombudsman's final decision:

Summary: The Council failed to take account of the impact of a proposed neighbouring extension on Mr X’s property when considering a planning application. It seems unlikely the planning permission for the extension would have been granted in its current form and so the Council should pay Mr X £1750 to acknowledge the adverse impact on his residential amenity.

The complaint

  1. Mr X complains the Council has granted planning permission for an extension to his neighbour’s property without properly considering the impact on his home.
    Mr X says the extension causes significant overshadowing of his living room and bedroom. Mr X also says that it has significantly affected the outlook from his property as he can only see a brick wall from his living room window.

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The Ombudsman’s role and powers

  1. 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)
  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 Mr X about his complaint and considered the information he has provided to the Ombudsman. This included photographs of his neighbour’s extension and a right to light survey he commissioned.
  2. I have considered information about the planning application which is available to the public on the Council’s website. I have also considered the Council’s response to my enquiries which includes it’s comments on the complaint.
  3. Mr 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

  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.

Council’s planning policies

  1. The Council does not have a policy on separation distances between residential buildings. It’s residential design guide says a side extension “should respect the context of the street, preserving gaps between buildings and rhythm of roof profile where these are characteristics of the area”.
  2. The design guide also says the design of residential dwellings “should create comfortable living spaces within the home while avoiding overshadowing or overlooking neighbouring properties or having an overbearing impact on them”.

British Research Establishment Guidance

  1. The British Research Establishment (BRE) produces guidance for builders and local councils on maximising daylight and sunlight to residential dwellings. The guidance includes a “25 degree test” which is designed to indicate when a more details assessment of daylight and sunlight is required.
  2. The 25 degree test is used where the development is opposite another residential dwelling. The centre of the lowest habitable room window of the facing property is used as a referent point and a line is drawn from the centre of the window at 25 degrees from the horizontal. If the development falls beneath the line there is unlikely to be a substantial effect on daylight and sunlight.
  3. If the proposed development is above the 25 degree line it does not mean that daylight and sunlight levels will be below standard. However, it does mean further checks are required.
  4. Right to light is a private right. If a person’s right to light has been breached then any action would be against the owner of the property who had infringed on their right to light. Therefore, right to light is not something councils will consider when reaching a decision on a planning application.
  5. However, the BRE guidance can be used to work out if a development will overshadow an existing property to an unacceptable degree. This is a relevant consideration when deciding on a planning application.

What happened

  1. In 2018 Mr X’s neighbour applied for planning permission to build a two storey and single storey extension to the side of his property facing Mr X.
  2. Mr X’s property faces on to the side of his neighbour’s property. Mr X is separated from his neighbour’s boundary by his small front garden and a footpath. Mr X says the distance from the front of his property to his neighbour’s boundary is 6.4 metres. The Council says it is over 7 metres. Using measurements on the applicant’s site plan submitted with the planning application Mr X’s measurements appear accurate.
  3. Mr X previously looked out towards his neighbour’s fence, behind which was a shed and then a single storey extension. Mr X’s property was approximately 8.2 metres from the existing single storey extension and 12.4 metres from the existing two storey elevation.
  4. The Council granted planning permission for Mr X’s neighbour’s extension. The new single storey extension was to be built up to the boundary, 6.4 metres from Mr X’s front elevation. The two-storey part of the extension was to be build 8.4 metres from Mr X’s front elevation. Both external walls facing Mr X were blank gables. The single storey extension was to be 4.4 metres high at its peak and the two-storey extension was to be 7 metres at its highest part.
  5. The Council considered the impact of the extension on Mr X’s property in an officer report. It said:

“Given the location of the existing terrace of houses, the addition of a first-floor and single storey side extension would create no increased loss of light to neighbouring properties to the north. The proposal would similarly not result in any significant loss of privacy or overlooking to neighbouring properties to the south, west or east. The proposal is therefore compliant with policy PMD1 with regards to neighbour amenity impacts”.

  1. Mr X was unhappy with the Council’s decision and commissioned his own right to light survey. The survey found Mr X’s neighbour’s extension breached the 25 degree test. However, it said:

“We are of the opinion that the extensions are unlikely to have reduced the level of sunlight hours receivable by the living room window down to an extent where they breach the BRE guidelines. The living room window suffers some reduction of sunlight hours although is likely to maintain a level which surpasses the minimum BRE criteria. As a result, the extensions are likely to have satisfied the BRE tests for sunlight”.

  1. Mr X complained to the Council. The Council said it had properly considered the impact of the extension on Mr X’s property. In its letter to Mr X of 11 March 2019 the Council said:

“The Case Officer carefully considered your comments at the time the application was being determined. In recommending the application for approval regard was given to the existence of the existing extension and the separation distance of more than 7m by a public walkway between the flank of the extended property and the front of your dwelling. In addition, consideration was given to the orientation of the properties; the application property lies to the south of your property, and the main mass and bulk of the dwelling is already in existence, accordingly little harmful further impact was identified in terms of loss of light. The Council has no specific minimum requirements for distances between properties in situations of this type, and these types of applications are considered on a case by case basis taking into account site specific matters. Accordingly it was not considered that there would have been any harmful impacts in relation to privacy, outlook, amenity or change in living conditions that would have been substantiated on appeal if a refusal of the application were to have been made”.

  1. The Council says there are no notes of a site visit carried out by the officer who considered the application. It has provided photographs taken when the officer visited the site. These show the relationship between Mr X’s property and his neighbour’s property before it was developed.
  2. Mr X has provided me with photographs showing the impact of the new extension on his property.

My findings

  1. There is fault in the way the Council considered the impact of the neighbouring extension on Mr X’s home. The Council’s officer report said the extension would “create no increased loss of light”. Given the orientation of the properties and distances between them it cannot be that the extension would result in no increased loss of light. This is supported by Mr X’s right to light survey which say that some loss of light would occur.
  2. However, Mr X’s right to light survey says the loss of light is not at a level that would likely result in the Council refusing to grant planning permission. Therefore, I cannot say the Council’s failure to properly consider the loss of light has caused Mr X an injustice. This is because it would not have been able to rely on the impact of overshadowing to refuse planning permission or negotiate changes in the plans to make the extension more acceptable.
  3. The Council failed to consider whether the extension had an overbearing impact on Mr X and whether it had a negative impact on his outlook. These are relevant planning considerations and there is no reference to either within the Council’s case officer report and there are no notes of a site visit or separate assessment of the impact of the extension on Mr X’s property.
  4. Although the Council has no specific policy on separation distances between properties it must still take account of relevant planning considerations including outlook and whether a development is overbearing. The Council’s design guide specifically mentions overbearing as a consideration.
  5. The Council says it has granted planning permission for a similar extension for another property in the area. The Council says there was a similar relationship between that property and its neighbours as there is between Mr X and his neighbour. I have considered details of the planning application in question, however the properties face each other side on and so the relationship is not comparable with Mr X’s situation.
  6. In response to my draft decision the Council provided details of a further example of a similar extension in the area. The situation in that case was comparable to
    Mr X’s however I was unable to view the officer report or decision notice for the application so I could not see what consideration the Council had given to the relationship between the existing house and the proposed extension. The single storey extension was also set back from the boundary to allow for a boundary fence which would have broken up the appearance of the blank gable wall. Therefore, I am unable to say that the relationship here was directly comparable with Mr X’s situation.
  7. Now I have identified the fault I must consider whether this has caused Mr X an injustice. This means I must consider whether the Council would have granted planning permission for the extension if it had considered outlook and overbearing on Mr X’s home.
  8. Taking account of the distances between the extension and Mr X’s home as well as the bulk and mass of the single storey extension it seems unlikely the Council would have granted planning permission for the single storey extension in its current form.
  9. However, the Council may have allowed something similar with either the roof of the single storey extension pitched away from Mr X’s home and/or some sort of boundary treatment such as rendering or similar to improve the outlook from Mr X’s home. This is not intended to be an exhaustive list of options the Council might have considered, merely examples of changes to the design the Council might have sought.
  10. Therefore, there has been a negative impact on Mr X’s residential amenity as a result of the Council’s failure to properly consider the impact of the neighbouring extension on his home.
  11. We would usually consider recommending the Council takes action to mitigate the impact of the fault, such as providing screening, but that is not possible here. Therefore, I have considered whether the Council should pay Mr X a one off payment to acknowledge the impact of the extension on his amenity.
  12. It seems likely planning permission for the extension would have been granted for an extension to the boundary, but the pitch of the roof may have sloped away from Mr X’s property and/or the brickwork could have been screened in some way. Therefore, I consider the impact to warrant a payment toward the middle to lower end of what we would usually recommend when we find there has been a permanent loss of amenity as a result of fault by a council.

Agreed action

  1. The Council should take the following action to remedy the injustice caused to Mr X:
    • Write to Mr X to apologise for failing to properly assess the impact of the extension on his property.
    • Pay Mr X £1750 to acknowledge the permanent loss of amenity he has suffered as a result and his time and trouble pursuing his complaint.
  2. The Council has agreed to my recommendations. It should take this action within 8 weeks of my final decision.
  3. The Council should also remind officers of the importance of properly demonstrating their consideration of the impact of new development on existing properties. The Council may find out guidance note “Recording Planning Decisions: guidance for practitioners” useful. This is available on our website.
  4. The Council should provide evidence it has issued a reminder to planning officers and any other steps it proposes to take in response to this case within 8 weeks of my final decision.

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Final decision

  1. I have completed my investigation into this complaint as I have found fault causing injustice and 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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