Summary: Mr F complains about the Council’s decision to grant planning permission for his neighbour’s extension. There was fault by the Council. It has agreed to apologise to Mr and Mrs F.

The complaint

1. Mr F complains about the Council’s decision to grant planning permission for his neighbour’s extension. In particular, Mr F complains the Council failed to properly consider overshadowing and the impact on his amenity of a new first floor window.
2. As a result, Mr F says his privacy and human rights have been adversely affected.

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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. 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

5. I spoke to Mr F about his complaint and considered the Council’s response to my enquiries and the Town and Country Planning Act 1990 (“the Act”).
6. I sent Mr F and the Council my draft decision and considered the comments I received.

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What I found

Planning permission

7. The Act gives local planning authorities the power to decide if planning applications should be approved, refused or approved subject to planning conditions. In determining an application, the planning officer's report should identify the key deciding issues, have accurate descriptions, and summarise objections and responses from statutory consultees. The report should also refer to the planning policies, including the National Planning Policy Framework (NPPF), and other material considerations relevant to deciding the application.
8. Material considerations relate to the use and development of land in the public interest. They include issues such as overlooking and highway safety. It is for the decision-maker to decide the weight to be given to any material consideration in deciding a planning application. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded upon valid material considerations.
9. The law does not require councils to carry out a site visit, although it is good practice for planning case officers to visit application sites when assessing proposals.
10. The Council’s Urban Design Guidance SPD says buildings must be designed to provide reasonable levels of visual privacy to habitable rooms. Whilst distance is one way to avoid overlooking, privacy may also be achieved through location, type and orientation of windows. There is no single legal definition of "habitable room", but the Building Regulations say they are rooms intended to be used for dwelling purposes. Generally, conservatories that are exempt from planning permission are not classed as habitable.

What happened

11. Mr and Mrs F live in a detached house with a conservatory at the rear. Their neighbour applied for planning permission for an extension. The proposal was for a two-storey side and front extension and a single-storey rear extension with a pitched roof. This was to replace an existing flat roofed rear extension which had never been granted planning permission. The rear extension runs along Mr F’s boundary and garden. A new window was proposed on the first floor of the side facing Mr and Mrs F’s property.
12. The Council visited the application site to assess the impact of the proposed development. The officer viewed the positioning of Mr and Mrs F’s and other neighbouring properties from the application site. The officer did not enter Mr F’s property as he did not consider it necessary. The Council says the height, angle and general positioning of the proposed first floor window could be seen clearly from the application site. The officer also used 360° panoramic satellite imagery to assess the site.
13. The Council sent notification letters to neighbours in April 2019. Following amendments to the plans by the applicant, a second round of consultation took place in May 2019.
14. Mrs F objected to the proposals, she said:
• The pitched roof would encroach onto their property because the rear extension was along their boundary.
• The increase in height would reduce light and cause overshadowing to their garden, conservatory and other living rooms.
• There was insufficient separation distance between their property and the extension.
• The rear extension was too long.
• The rear extension’s lounge window would be less than less than 50cm from their boundary.
• The new window on the side of the first floor directly overlooked their garden, patio, and conservatory. This affected their privacy and human rights.
• The development was too dominant, out of character and would cause parking issues.
15. The Council’s planning officer considered the application under delegated powers. The officer’s report summarised the objections as:
• “Traffic and parking
• Design and visual impact
• Residential amenity (privacy, overshadowing)”
16. The report says the development has acceptable off-street parking provision. It notes there is a limited increase to the property’s height and overall footprint. It concludes the extension would be subordinate to the main property and would not cause so much significant visual harm as to warrant the refusal of the application.
17. The report says a pitched roof would better relate to the main dwelling and the height of the rear extension was acceptable and would be allowed under permitted development. The Council could not therefore refuse permission on those grounds.
18. In terms of the impact on Mr and Mrs F’s amenity, the report notes the existing rear extension runs along the boundary and is already clearly visible from their property. It considers the impact of the rear extension to be acceptable. The report acknowledges “some small level of overshadowing” could be created but does not consider this to be significant enough to warrant refusal. There is no reference in the report to the impact on Mr and Mrs F’s amenity of the new first floor window.
19. The Council concluded the development would not result in an unacceptable loss of residential amenity to neighbours. It approved the application as it was considered acceptable in terms of design, amenity and highway safety.

Mr F’s complaint

20. Mr F complained to the Council on 25 June 2019. He said the Council had not properly considered their objections and had breached their human rights.
21. The Council’s response said it had considered all the objections. It was required to take into account the Human Rights Act 1998 when determining planning applications and these rights had to be balanced against all other material considerations as a planning judgment.
22. The Council accepted the proposed first floor window would provide views onto Mr F’s garden and conservatory, but said views of the garden could already exist from other properties and from the applicant’s site. It considered that the window did not cause such a significant detrimental impact to residential amenity as to warrant refusal of the application.
23. Mr F was dissatisfied and asked to escalate his complaint to the next stage. He said none of his objections were mentioned in the report. Mr F noted the proposed window was at a 90-degree angle facing his property, less than 3 metres away, giving uninterrupted and panoramic views of his garden and conservatory. Mr F said he had spoken to the planning officer about the window who had said he “must have forgotten about that”.
24. Mr F complained there had been no site visit to his property, given there had been one when he had built a summer house. Mr F said there had been “a total disregard and misrepresentation and misinterpretation of the objections raised and a very severe case of maladministration within the Council's Planning Department.”
25. The Council did not uphold his complaint. It said the report had summarised the number and nature of the objections. It disagreed the views were panoramic as the window faced partly onto the blank side elevation of Mr F’s property. A site visit to Mr F’s property had not been considered necessary, although one had been required in the planning enforcement case about the summer house. The Council said it could not reverse the planning decision. It suggested Mr F discuss his concerns with the neighbour, as it may be possible to agree changes to the window. Mr F remained dissatisfied and complained to the Ombudsman.

My findings

26. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. My role is to determine whether there has been administrative fault in the way the decision was made.
27. Mr F complains the officer did not visit his property. This is a decision the officer is entitled to take as there is no requirement to do so. I have seen no evidence of fault in the way the officer decided not to visit Mr F’s property, so I do not find fault.
28. Mr F complains their objections were not mentioned in the planning officer’s report. The Council is entitled to summarise the objections it receives, and I consider its summary is a fair reflection of Mrs F’s objections.
29. I have gone on to look at how the report considers those objections. The report considers parking, dominance of the structure, overshadowing, the pitched roof, and the impact of the rear extension. It concludes these are acceptable. I understand Mr F does not agree with the Council’s decision, but it is one the Council was entitled to make. The Ombudsman cannot question it as there is no evidence of fault in the way it was taken.
30. However, the report does not consider the impact of the proposed new first floor window on Mr and Mrs F’s amenity. This is fault.
31. I have considered whether this fault has caused injustice to Mr and Mrs F. In particular, whether it may have impacted on the decision to approve planning permission. The Council’s position is that the window did not cause such a significant detrimental impact to residential amenity as to warrant refusal of the application.
32. I cannot say for certain that if the window had been considered in the report the outcome would have been different, but I can come to a view based on the balance of probabilities. I find that even if the report had considered the window, the Council would have granted planning permission. I say this because, as Mr F’s conservatory is not a habitable room, I can see nothing in the planning guidance that would prevent approval of the application and I have no evidence the Council would have refused it.
33. This is not to say Mr and Mrs F have not experienced injustice. They have been caused frustration that the Council did not follow correct procedures. I consider an apology a proportionate response for this injustice.

Agreed action

34. Within a month of my final decision, the Council has agreed to apologise to Mr and Mrs F for the fault identified in paragraph 30.

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Final decision

35. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman