Summary: The complainant says the Council failed to consider the impact on his home of a boundary garden wall shown in his neighbour’s planning application leaving him with an overbearing structure and sense of enclosure. The Council says it made an error. However, having reviewed the decision it believes the decision is sound and it has made at least one other similar decision. We find the Council at fault but that this did not affect the final decision. However, it did result in inconvenience to the complainant and a loss of confidence in the Council’s planning decision procedure.

The complaint

1. The complainant, whom I refer to as Mr X, complains when considering a planning application by his neighbour the Council failed to properly consider the impact of a proposed boundary wall on Mr X’s amenity.
2. Mr X says the Council also failed to handle his complaint properly putting him to avoidable time and inconvenience. Mr X says contrary to local planning guidance, the neighbour’s boundary wall is an overbearing structure that will severely adversely impact his amenity and create a sense of enclosure. Mr X wants the Council to remove planning permission for the boundary wall, have the wall removed and offer a remedy in recognition of the impact on Mr X.

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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. 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)
5. When considering complaints, 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.

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How I considered this complaint

6. In considering this complaint I have:
• Spoken with Mr X and read the information presented with Mr X’s complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, planning guidance and policy;
• Shared with Mr X and the Council my draft decision and reflected on comments received.

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What I found

The law and planning policy

7. The law says Councils must give publicity to planning applications.  The publicity the Council must give depends on the nature of the development. The Council must publish the application on its website.
8. Councils must consider material planning considerations. These concern the use and development of land in the public interest. They do not include 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.
9. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission unless it is founded on valid material planning reasons.
10. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
11. It is for the decision maker to decide what weight to give to any material consideration in deciding a planning application.
12. The Council’s 2015 Technical Update to the Residential Design Standards (2011) advises on what may be acceptable in building a rear extension. It says extensions:

“Should not exceed 3 metres in height to prevent a feeling of enclosure”

What happened

13. Mr X’s neighbour applied for planning permission to build an extension to the neighbouring house. The Council says it gave publicity for the application in May 2019 and received a reply from Mr X. The Council says it considered the application against planning policies including local design guides.
14. The Council says the proposed boundary wall is shown on the plans attached to the planning application and therefore considered as part of the planning permission.
15. The Council’s Residential Design Standards advise rear extensions should not exceed 3 metres in height to prevent a feeling of enclosure. The neighbour’s boundary wall, the Council says, is shown on the application plans at a height of 3.6m. In the Council’s officers’ professional opinion although the wall exceeds the height limit in its Design Standards it does not so adversely impact on Mr X’s amenity, they should refuse permission.
16. The planning application went before the decision panel under powers delegated to Council officers by the Planning Committee. In the case officer’s report, there is a summary of Mr X’s objections to the application.
17. The Council says in deciding the impact on daylight and sunlight it uses the 45- degree angle test. In the report before the delegated panel the Council’s case officer addressed the impact of the proposed works on neighbouring properties and recommended approval. In the report the Council’s case officer says the proposal would not cause a loss of privacy; impact on sunlight or daylight. The report says it will not create a sense of enclosure or adversely impact the amenity of the area.
18. The panel decided to grant planning permission on 12 July 2019.
19. While it recognised the boundary wall extending from the neighbouring house, the Council failed to realise the neighbour had extended the garden boundary wall at the same height.
20. Following my suggestion, the Council review the decision, the Council tasked a planning officer with no previous involvement in, or knowledge of, this planning application and grant of permission to review it.
21. The Council’s reviewing planning officer says the Residential Design Standards 2011 advises officers on how to assess the impact on of an extension on neighbouring homes. It suggests looking at any loss of daylight and sunlight. The Council’s reviewing planning officer produced a diagram showing the impact on sunlight and daylight entering Mr X’s home. In the Council’s reviewing planning officer’s opinion this shows an impact on a small part of Mr X’s glazed areas. Therefore, in the reviewing officer’s view it does not cause a harmful loss of light or cause harm to Mr X’s amenity. The Council’s reviewing planning officer also considered whether the boundary wall extending at this height along the garden boundary, would create a sense of enclosure. The reviewing officer decided it would not. Therefore, the Council’s reviewing planning officer says if they had assessed the original planning application, with full knowledge of the extent of the boundary garden wall, then the reviewing officer’s recommendation would be to grant planning permission.
22. I put to the Council Mr X’s concerns the decision may lead to further breaches of planning control because the wall may present the spine of further development. I also asked the Council to say if it had given similar permission for an equally high garden wall elsewhere in its district. In response to my further enquiries the Council provided evidence of what it says is a similar decision to allow a garden wall higher than the usual limits within its area. It says therefore this decision is not without precedence and in its view of the planning merits of the decision it is acceptable.

Mr X’s complaint to the Council

23. In August 2019 Mr X complained to the Council about the way it had considered his neighbour’s application. In Mr X’s view, the Council failed to recognise the impact of the high garden boundary wall on his amenity.
24. In response to the complaint the Council’s officers met with Mr X at his home in September 2019. Following that visit and after consideration of all that Mr X had said the Council replied to Mr X’s complaint at stage 1 of its complaints’ procedure in October 2018.
25. In its reply, the Council said the Council’s case officer’s report included a summary of the planning issues raised by Mr X in response to the consultation letter sent in May 2019. Four Council officers had reviewed the proposals including a senior planning officer before granting planning permission. The letter says the application did not show the new boundary wall projecting 1.2m beyond the existing boundary wall with a height of over 4m when viewed from Mr X’s side of the boundary. The letter says the Council’s case officer ‘mistook a fence clad in vegetation for a wall’. Therefore, the letter says, “…the impact of a 1.2m boundary wall with a height of over 4m on [Mr X’s] side was not considered”. The letter continues by saying looking at the overall impact of this wall however, the Council did not believe it created a sense of enclosure or caused a loss of light.
26. In December 2019 Mr X asked the Council to consider his complaint further at Stage 2 of its complaints’ procedure. The Council responded on 9 January 2020. The Council upheld his complaint. The letter says the Council did not consider the impact of the boundary wall with a height of over 4m (on Mr X’s side of the boundary) when it granted planning permission to Mr X’s neighbour. However, the Council says had its planning officers considered the wall the Council would still have granted planning permission. This is because in the Council’s officers’ professional opinion the boundary wall does not cause enough harm to his amenity to refuse it.
27. In response to my enquiries, the Council says the time taken to complete the complaints’ procedure (August 2019 to January 2020) reflects the need to gather information. It also reflects the need to arrange and undertake a site visit including a visit to Mr X’s home.
28. The Council says it remains satisfied the planning decision is sound on its merits.

Analysis – is there fault causing injustice?

29. My role is to consider whether the Council approved the planning permission and considered the complaint without fault. My role is not to judge the planning merits of the application. Where I find fault, I must consider if this caused an injustice to Mr X and if it did what the Council should do to address that.
30. Mr X complained the Council did not directly record his objections in the Council’s planning officer’s report. We expect officers to summarise objections in reports. It is not necessary to repeat the objections word for word. I find the Council properly summarised the objections.
31. Although the planning applicant included the boundary wall in their plans attached to the planning application the Council did not consider the impact of the extended boundary wall. Officers did not realise that from Mr X’s side of the boundary the wall would be 4m. That is a one metre above the limit suggested in the Council’s design standards.
32. Design standards are part of the material planning considerations councils must consider when deciding a planning application. Failure to comply does not mean the Council must automatically refuse the application. The Council must consider if despite the greater height in this case, the proposed wall would be acceptable in planning terms or likely to cause unacceptable harm to neighbouring amenity. That is a matter of professional opinion.
33. The Council says it did not consider the impact of the extended boundary garden wall and I find that a fault. I find Mr X did not receive the service and consideration that he could reasonably expect. The Council apologised for the failure. I must consider if that fault led to a different decision (and therefore added injustice) to Mr X.
34. Having reviewed the planning application as part of its complaints procedure the Council says but for the fault, i.e., if it had considered the wall, it would have reached the same decision. I asked the Council to review that by tasking a planning officer not previously involved with the application to undertake a review. A reviewing officer came to the same professional view on applying the Council’s design standards and having considered all relevant material planning considerations. Therefore, on the balance of probabilities, I find the fault did not result in a different decision. The Council has apologised for the error. However, that error presented Mr X with a planning decision the merits of which he continues to question. It also resulted in him spending far more time on a complaint he might otherwise not have needed to make. Mr X will never know but for the error whether the Council would have granted the planning permission having properly considered the application. That deserves more than an apology.
35. In response to further enquiries the Council has shown it has granted planning permission allowing a boundary or garden wall to exceed the usual limits on height. It is for the professional officers in the exercise of their judgement to decide the merits of each planning application. The Council has reviewed the decision by admitting its error and decided on balance the decision is acceptable. I cannot challenge the merits of that view.
36. The complaints procedure aims to complete all stages within three months but here it took longer, the Council says because it had to visit Mr X’s home. I find the procedure took too long without explaining to Mr X or warning him that the Council expected to take longer and setting out the reasons for delay.

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Agreed action

37. To remedy the injustice caused by the fault I have found I recommend, and the Council agrees to within four weeks of this my final decision to:
• Apologise to Mr X for the error;
• Pay Mr X £150 in recognition of the avoidable inconvenience and loss of faith in the planning procedure caused by the error.

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Final decision

38. In completing my investigation, I find the Council at fault causing inconvenience and a loss of faith in the planning procedure.

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Investigator's decision on behalf of the Ombudsman