Summary: Miss B complains the Council approved planning permission for an extension that is overbearing and causes loss of light and privacy. Miss B says the Council did not properly consider its own policies or rules around permitted development rights. The Ombudsman finds fault in how the Council decided the planning application. However, we do not recommend anything further than the remedy the Council has already proposed.

The complaint

1. The complainant, who I refer to as Miss B, complains the Council approved planning permission for a neighbouring extension. She says the extension is overbearing and blocks light to her rear windows. Miss B says this has had a significant, detrimental impact on the living standards of her and her elderly mother. Miss B says the Council did not consider the 45 degree rule or a condition in a previous planning condition that removed permitted development rights. Miss B says the Council also failed to protect her privacy and that installation of glazed windows has only make the light situation worse. She asks that the Council discontinue the planning permission and remove the extension.

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The Ombudsman’s role and powers

2. 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)
3. 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 considered the information Miss B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Miss B and the Council for their comments before making a final decision.

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What I found

Law and Guidance

6. Planning permission is required for the development of land. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
7. 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, light and privacy.
8. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
9. Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the main types of permitted development. Permitted development rights and rules frequently change.
10. Permitted development rights include the enlargement, improvement or other alteration of a house, subject to the following (among other) restrictions:
• The enlarged part of the house would have a single storey and extend beyond the rear wall of the original house by more than 3 metres, or 4 four metres in height
• The enlarged part of the house would be within 2 metres of the boundary of the curtilage of the house and the height of the eaves of the enlarged part would exceed 3 metres
11. The Order makes the following exception:
• ‘Nothing in this Order permits development contrary to any condition imposed by a planning permission granted or deemed to be granted under Part 3 of the Act, otherwise than by this Order.’

Background

12. In late 2017 Miss B’s neighbour started building an extension, including a large wall on her boundary. Miss B complained to the Council who opened an enforcement case. The Council visited the site and found the development did not have planning permission and exceeded the size allowed by permitted development rights. It found the extension caused an element of harm.
13. In early 2018 the neighbour submitted a retrospective planning application for the extension. Miss B objected to the application. She said the wall already built on the boundary was overbearing and caused a loss of light to her garden and rear windows. She said the roof, which the neighbour was yet to install, would make this even worse.
14. Miss B said the extension breached a restrictive covenant regarding external alterations. She said it would cause a nuisance and affect the value of her property. Miss B provided photographs of the current structure.
15. The planning officer discussed the application with the neighbour and oversaw changes to the design. The changes included the addition of windows at the top of the boundary wall, which the planning officer considered would reduce the light impact on Miss B. The new design consisted of a 2.5 metre brick wall, with 0.5 metres of glazing on top, bringing the structure to eaves height. Including the roof, the extension would be 3.5 metres closest to the rear wall of the house, and 4 metres at its furthest end due to sloping land.
16. The Council publicised the changes to the plan and Miss B made a further objection. She said the windows and their plastic frames would make little difference and would still overshadow her property and be overbearing. She provided a further photograph showing the overshadowing.
17. The planning officer considered Miss B’s objections in their report. The officer found there would be some harm to Miss B but the harm would not be significantly more than from an extension the neighbour could build in line with permitted development rights. The Council approved the planning application.
18. The approval included a condition that said, ‘The glazing panel in the north facing elevation… shall be non-opening and of obscure glazing’.
19. In September 2018 Miss B complained the finished extension did not have obscure glazing and her neighbours could see from the extension into her rear windows. Miss B reported antisocial behaviour by her neighbours.
20. The Council opened an enforcement complaint. It initially decided there was a likely breach as the windows were not glazed. It then established only one of the window panels was meant to be glazed, which it was, so there was no breach of planning control. The Council advised Miss B that any complaint was with the planning application process.
21. In late 2018 the Council contacted the neighbour, proposing changes to mitigate the harm from overlooking. It accepted it was a mistake not to have prevented overlooking. The Council was not initially successful in negotiating a change.
22. Miss B made a formal complaint to the Council in March 2019. Miss B said the Council should not have approved the application as it was overbearing, blocked light and invaded privacy. She said the Council was wrong to consider the impact compared to permitted development rights as a previous planning permission from the 1970’s had a condition that excluded permitted development rights. The condition says:
• ‘Not withstanding the provisions of the Town and Country Planning General Development Order, 1973, no development falling within Class 1 of Schedule 1 to the said Order shall be carried…’
23. The Council made further attempts to negotiate with the owner, but these were again unsuccessful. The Council responded to Miss B’s complaint in July 2019. It accepted it made a mistake resulting in unacceptable overlooking. However, it considered the planning officer used good judgement in comparing the harm in terms of outlook and loss of light to that which could occur from use of permitted development rights. It said the condition from the past planning permission was not enforceable, precise or necessary. It said the planning officers making the condition could not have known how the legislation would read forty years later.
24. The Council offered to install plants in Miss B’s garden to shield any overlooking. Miss B was not satisfied with the outcome or the offer and escalated her complaint to the second stage.
25. The Council made further attempts to negotiate with the neighbours. In November 2019, the neighbours agreed for the Council to change the clear glazing to obscure glazing to protect Miss B’s privacy. The Council responded to Miss B’s second stage complaint shortly afterwards. The response upheld the original complaint outcome. It apologised and offered a £500 payment to Miss B for the time and trouble she spent raising complaints and enforcement investigations, as a result of the error affecting her privacy. The Council maintained its position that there was no fault in the way the officer considered the impact of light and outlook against permitted development rights. However, it said it may have been helpful to also refer to its design guidance in the planning report.

Findings

Privacy

26. The Council has accepted fault in how it considered the impact on Miss B’s privacy when approving the application. I cannot add to the Council’s findings on this point so have commented further. The Council has acted to remedy the fault, by negotiating the installation of obscured glazing, which protects Miss B’s privacy. It has also offered a £500 time a trouble payment.
27. I would not have recommended a substantially different remedy to the one the Council has recommended in respect of the privacy matter. The issue I have investigated is whether there is also fault in how the Council considered the loss of light and outlook to Miss B’s property.

Light and Outlook

28. I find fault in how the Council considered loss of light and outlook when deciding the planning application.
29. As outlined in the section on our role and powers, I cannot decide whether the Council’s decision was right or wrong. I can only investigate whether the Council properly considered all the relevant factors when making its decision. If the Council considered the relevant factors and reached a decision based on these, it is not my place to question its judgement.
30. In this case the Council made its decision based on a comparison with the possible harm from a permitted development. It is common for Council’s to make this comparison as the inference from permitted development rights is that any such development causes an acceptable level of harm.
31. I have considered the condition excluding permitted development rights. It is possible to exclude permitted development rights by condition, as outlined at Paragraph 11. I note that case law says the wording of the condition must be specific. The wording of this condition is specific in excluding alterations to a dwelling house, under the 1973 Order. Whether this still applies to the current Order, which has different criteria about what can be built, is not a decision I can make.
32. The Council and Miss B may both have valid arguments for why the condition still applies or does not. It is a legal point that I cannot adjudicate on. I can only look at whether the Council has properly considered the matter. Its response to my enquiries shows it has properly considered this and given defensible reasons for why it considers the condition is not enforceable. I therefore cannot find fault with its position. Only a court could adjudicate on whether the Council’s position is legally correct.
33. I understand Miss B’s point that the Council’s planning report does not comment on the condition, so it did not properly consider this at the relevant time. On balance, I do not find fault in that respect. The planning officer should have checked the site’s planning history and it might have been helpful to have included an explanation about this condition in the report. However, the condition dates back more than forty years and refers to past legislation. I can therefore understand why the planning officer might not have considered the condition still relevant, and it is clear the Council still does not consider it relevant.
34. Even if I were to find fault for not addressing the condition in the report, I could not say it would have changed the outcome. The Council’s position now is that it does not apply. It is likely that would also have been its decision in the planning report. I cannot speculate on whether the Council only took that position because of Miss B’s complaint, as it has set out its reasons clearly.
35. However, I find fault in how the Council considered light and outlook and set this out in its report. The Council relied on quite a vague comparison with permitted development rights. The report does not give any explanation for why an extension 4.7 metres in length, does not cause significantly more harm than one of 3 metres. It does not make any reference to the design guidance or any assessment of light impact.
36. The Council’s design guidance includes several diagrams showing 45-degree angles to the neighbouring property. It says an extension behind a line drawn at a 45-degree angle from the centre line of the neighbours nearest window is less likely to affect them. It is clear from those diagrams that the length of the extension, not only the height, is relevant. I understand this is only guidance and there is no statutory duty to refer to it in the report. However, the guidance is there for a reason. It is to give a guide of what causes an unacceptable loss of amenity, in line with the Local Plan. The development in question was 50% longer than that allowed by permitted development rights. The Council should have considered whether this extra length caused a greater level of harm, in line with its own design guidance, and properly explained its reasons in the report.
37. Even so, I cannot say for certain what difference this would have made to the decision. The design guidance is still only guidance. It is for the Council to decide what weight it gives to material considerations in each case. The Council maintains the extension does not cause unacceptable harm from loss of light or outlook. There would always have been overshadowing from an extension built in line with permitted development rights and it is not clear that this would have been significantly less if it were only 3 metres in length.
38. The only outcome that would reduce overshadowing is for the extension to be removed or reduced in length. For the Council to enforce this it would need a discontinuance order. It is very rare for councils to issue a discontinuance order and we would not normally recommend a council take this route. To even consider this I would need to be certain that the Council would have reached a different decision but for the fault, and that the fault caused significant harm, above and beyond the harm that would have otherwise been caused. I cannot be certain of that in this case.
39. The only injustice I can establish, therefore, is the uncertainty to Miss B about what decision the Council would have made but for the fault, together with the time and trouble bringing the complaint.
40. Our guidance on remedies recommends a payment of between £100 and £300 to recognise distress and uncertainty, and the same for time and trouble. The Council’s offer of £500 is not significantly different to any remedy I would have recommended in this case. I therefore have not recommended any further remedy on top of that the Council has already offered.

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Final decision

41. The Council is at fault in how it decided the planning application. However, I do not recommend any further remedy than that which the Council has already proposed.

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Investigator's decision on behalf of the Ombudsman