Summary: Mr X said the Council considered inaccurate plans that wrongly led it to believe development near his home complied with local planning policy when it did not. Mr X said the Council’s flawed decision to grant planning permission led to an overbearing development that adversely affected his living conditions. We found fault in the Council’s decision making but this had not caused Mr X significant direct injustice. There was also avoidable delay by the Council in responding to Mr X’s complaint about the development. We found the Council’s apologies and payment of £150 had suitably addressed any frustration and distress such delay caused Mr X.

The complaint

1. Mr X said the Council failed to consider a breach of the 45-degree rule but, after changing its mind, decided this did not affect its decision to grant planning permission for development near his home. Mr X said the Council’s view was contrary to its planning policies. And, the development was overbearing and spoilt the street scene. Mr X wanted the Council to revoke the planning permission or, if that was not possible, to negotiate changes to the development and provide suitable landscaping to reduce its impact.
2. Mr X also complained about the Council’s complaint handling. He wanted the Council to ensure officers did not have a conflict of interest when responding to complaints.

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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)

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How I considered this complaint

5. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered planning information on the Council’s website about the development;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s response with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background

6. Most development needs planning permission from the local council. Before deciding a planning application, the council must publicise it so people can comment on the proposed development. Developers may change their applications before the council’s decision.
7. Councils must consider each application on its own merits. They should also make decisions in line with their development plan policies unless material planning considerations indicate otherwise. Material considerations concern the use and development of land in the public interest, for example, traffic generation and overlooking. Peoples’ comments on planning and land use issues are material considerations that councils must take into account although they do not have to agree with them. Private concerns, for example, a developer’s behaviour and changes to property prices, are not material planning considerations.
8. Planning policies and material planning considerations may pull in different directions, for example, promoting housing development and protecting the living conditions of existing residents. While councils must take account of relevant policies and other material planning issues, they may give competing considerations different weight. In practice, this means councils can grant planning permission for development that does not meet all relevant planning policies.
9. There is no legal requirement to visit an application site, but a council planning officer often will do so before writing a report on an application. The report will assess the development proposals, taking account of competing or conflicting policies and material considerations. And, having weighed and balanced the key planning issues, the report usually ends with a recommendation to grant or refuse planning permission.
10. A senior planning officer(s) authorised by their council to decide applications will consider most reports. The senior officer does not have to accept the report recommendation but may give different weight to the planning issues when deciding an application.
11. Normally, councils grant planning permission if they consider the proposed development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal.

The Council’s policies and procedures

12. The Council’s planning policies include its 2013 Local Plan and a ‘House Extension Guidelines Supplementary Planning Document’ (‘the SPD’).
13. Local Plan policy P14 seeks to protect and enhance the amenity of existing and potential occupiers of land and buildings when considering development proposals. Policy P15 concerns good quality design and expects proposals to conserve and enhance local character and ensure their scale, massing and materials respect the surrounding area.
14. The SPD provides guidance on extending a home without unduly affecting neighbours and respecting the character of the property and its surroundings. The SPD also outlines the main considerations the Council will take into account in assessing extension applications. The SPD says the Council will normally apply ‘the 45-degree rule’ to safeguard neighbours’ living conditions and:

• calculate the 45-degree angle from the centre point of the neighbour’s nearest main habitable room window;
• an extension that breaches that angle “can reasonably be expected to affect outlook and light to neighbouring properties”;
• a first-floor extension that breaches the 45-degree rule “will normally be unacceptable”; and
• the 45-degree rule will not always be appropriate and sometimes other matters “will carry as much and potentially more weight, such as orientation, and changes in levels”.

15. The Council also has a two stage complaints procedure. At stage 1, an officer from the relevant Council service will try to solve the problem within 30 working days. If someone remains unhappy, they can take their complaint to stage 2, where the Head officer of the relevant service will review the complaint. The Head of Service aims to reply within 10 working days or, for complex complaints, 20 working days.

What happened

16. The Council received a planning application (‘the Application’) for a house extension near Mr X’s home. A planning case officer visited the site and took photographs of the application property (‘the Site’) and its surroundings. The officer considered an Application plan did not correctly show the relationship of the Site to a neighbouring property (‘the Property’). The officer asked the developer to provide an accurate plan, which it did. The Council’s normal practice on receiving an amended plan is to rename the earlier plan to show it has been replaced; and upload the new plan to its planning record and website. This did not happen in this case.
17. Meanwhile, the Council publicised the Application. Mr X, and others, objected to the extension. The objections included the extension being overbearing and dominant; that it would reduce light to neighbouring homes; and it breached the 45-degree rule.
18. The planning case officer prepared a report assessing the Application (‘the Report’). The assessment was carried out using the original, incorrect, plan. The Report said the extension was partially compliant with policy P15 and would not cause significant harm to justify refusal because of its design, scale and character. The Report also said the extension respected, but did not enhance, neighbours’ amenities. And the extension would not unduly affect neighbours’ privacy; have an unduly overbearing impact; or cause an unacceptable loss of light and outlook. The Report found the extension partially compliant with policy P14 and would not cause significant harm to neighbouring amenities to justify refusal on those grounds. The Report also referred to ‘orientation’ and that front elevations faced north, receiving the least amount of light. The Report said this orientation meant the extension would not have a detrimental impact on loss of light to the Property. The Report recommended granting planning permission.
19. A senior Council planning officer considered the Report with the planning file. This meant the senior officer also considered the original, incorrect, plan in deciding the Application. The senior officer agreed the Report recommendation and the Council granted the extension planning permission.
20. Mr X then asked the Council why it had approved the extension when it substantively breached the 45-degree rule. The Council said it had considered the 45-degree rule and, sending a plan showing its measurements, said there was no breach. The Council also said the 45-degree rule was guidance and a breach of the rule could be acceptable. And any breach from the extension would most likely be to the north-west of the Property, which orientation would cause limited loss of light. Mr X said the developer had misled the Council as its plan, which the Council had used in applying the 45-degree rule, was inaccurate. Mr X asked what the Council would do about the planning permission given it was based on materially incorrect information.
21. Another, more senior, officer considered Mr X’s correspondence. The Council then told Mr X it had secured amended plans from the developer, which allowed it to fully and properly assess the Application and the impact of the extension. On the 45-degree rule, the Council said it was a guide to what was acceptable, and its breach did not automatically mean refusing planning permission. The Council stressed the 45-degree rule was “normally’” applied but it considered each application on its merits. Here, its planning case officer had found the extension would breach the 45-degree rule. But, on considering other matters, including orientation of affected properties, the officer found no unreasonable impact on neighbours’ amenities.
22. In reply, Mr X said the Council’s two responses were contradictory as it had said both there was and was not a breach of the 45-degree rule. Mr X did not accept the Council had considered ‘other factors’ in assessing the 45-degree rule: it had no reason to do so given it had, mistakenly, found no breach. Mr X said it was clear that when the Council decided to grant planning permission, it believed there was no breach. That decision was flawed as a substantial breach of the 45-degree rule existed. The Council needed good and specific reasons not to apply the ‘normal’ 45-degree rule and could not, retrospectively, push it aside using general comments about orientation. Mr X asked the Council to revoke the planning permission and reconsider the Application.
23. The Council said while its planning case officer had not at first identified a breach of the 45-degree rule, it was a minimal breach. Its case officer had taken measurements during a site visit and in interpreting policy and applying planning judgement found the impact of the extension acceptable. The Council said there were no grounds to refuse planning permission for the extension. The Council told Mr X how he could challenge the planning decision in the courts. It also referred Mr X to its complaints procedure.
24. Mr X complained, for himself and others, to the Council and, remaining dissatisfied with its responses, then came to the Ombudsman. In summary, Mr X’s position was the Council had failed to properly consider residents’ objections about both loss of light and the scale and dominance of the extension. It had also wrongly relied on misleading plans in applying the 45-degree rule. The extension significantly breached the 45-degree rule and the Council had not justified departing from that rule in granting the extension planning permission.
25. In dealing with the complaint, Council officers visited the Site and the Property. The Council also changed its view about the extent to which the extension breached the 45-degree rule. This change arose because the Council used different points, at ground floor level, from which to measure the 45-degree rule. In summary, the Council’s final position was:

• the Report addressed the appearance and impact of the extension on the area;
• the Report was flawed as it did not expressly address how the extension impacted on a ground floor side window of the Property; and
• the Report was wrong and misleading as it indicated the extension complied with the SPD when there was a breach of the 45-degree rule.

26. In considering the Property’s side window, the Council said it was smaller than expected for a conventional habitable room. And the room itself used space under the stairs. The Council said the light to the window was already compromised and added harm from the extension would be minimal.
27. In addressing the 45-degree rule, the Council said at ground floor level the breach was 0.75 metres, and at first floor level 1.2 metres. At ground floor level, as well as orientation, the Council noted the affected Property window had a substantial overhanging canopy. The SPD allowed such matters to have weight. And there was a strong case for approving the Application despite the breach of the 45-degree rule.
28. The Council admitted its error in using the original, incorrect, Application plans. While it did not conclude that it would have refused planning permission, it recognised pursuing the complaint would have been frustrating and inconvenient for Mr X. The Council apologised to Mr X, including for its delayed complaint responses at both stages 1 and 2, and paid him £150 compensation.
29. The Council also changed its procedures so planning applications for house extensions must include specific 45-degree rule information. It also introduced new checks for handling officer planning decisions. On complaints handling, the Council now appoints an officer to monitor responses. This officer, if necessary, provides added support and a link to complainants to ensure they are told about progress with their complaint.
30. In coming to the Ombudsman, Mr X questioned the Council’s changed position on the extension. Its stage 1 complaint response found the extension ‘on the cusp’ of being unacceptable’. Then, at stage 2, it found ‘circumstances providing a strong case to approve’ the extension. Mr X said ‘being on the cusp of acceptable’ meant it was more likely than not the Council would have refused planning permission if it had correctly assessed the Application. Mr X said the Council had not justified its stage 2 view, which conflicted with the SPD that said breaches of the 45-degree rule were not normally acceptable.

Consideration

Introduction

31. My role was to consider whether the Council acted with fault and, if so, whether that fault caused Mr X injustice.

The Application

32. The Council noticed the Application plans contained errors and acted to secure accurate plans. It was, therefore, unfortunate that it then failed to consider the correct plans. However, given the Council’s admission that its formal assessment of the Application used the inaccurate plans, there was fault here.
33. The main difference between Mr X and the Council concerned the consequence of that fault. The Council’s position was the fault made no difference: it would have granted planning permission if it had assessed the Application using the correct plans. Mr X disagreed and pointed to the extent to which the extension breached the 45-degree rule; the lack of similar decisions; and the Council’s stage 1 comments.
34. In considering injustice to Mr X, I had to take into account that he did not live in the Property. He was not therefore directly affected by any loss of light either to its side window or arising from the breach of the 45-degree rule.
35. Mr X’s home was close to but did not adjoin the Site. Mr X had views towards the Site and would see the extension, when built, from his home. So, of the objections Mr X made to the Application, the material planning consideration directly affecting him was that about the ‘design, scale and character’ of the extension.
36. Mr X pointed out that compliance with the 45-degree rule would have reduced the size of the extension and, therefore, its visual prominence in the street. I considered Mr X’s point. The proposed extension was the same on both the original and corrected plans. The Report, prepared after the planning case officer had visited the Site, addressed the issue of design and scale and found no harm sufficient to justify refusing planning permission on that ground. I therefore did not find the Council’s fault affected its views about the acceptability of the design and scale of the extension.
37. I also considered the geographical relationship and distance between the Site and Mr X’s home. In that context, the visual impact on Mr X’s home of a smaller extension compliant with the 45-degree rule would not be significantly different to that of the approved extension. I therefore did not find that even if the Council had assessed the Application using the amended, correct, plans, Mr X would have found himself in a substantively different position. However, as recognised by the Council, its fault in processing the Application would have caused Mr X distress.

Complaints handling

38. The Council also failed to meet its time targets in responding to both Mr X’s stage 1 and stage 2 complaints. It took over five months for Mr X’s complaint to complete the Council’s complaints procedure. There was some contact between the Council and Mr X during those five months. And yet, the Council did not keep Mr X informed of what was happening. There was fault here, which the Council recognised in apologising to Mr X for its delays. The Council’s handling of Mr X’s complaint would have added to his frustration, and it put him to avoidable time and trouble in chasing the Council for a response.

Putting matters right

39. Key to my consideration of this complaint was what effect did the Council’s failure to properly apply the 45-degree rule to the extension have on Mr X. I did not reach a view on whether the Council would have refused planning permission if it had assessed the correct plans. I did not find this necessary, firstly, given the approved extension did not impact on light to Mr X’s home. And, secondly, as I did not find reducing the extension to comply with the 45-degree rule would significantly affect the outlook from Mr X’s home. The injustice to Mr X arose from the frustration and avoidable time and trouble he was caused in making his complaint. I found this injustice was proportionately, appropriately and reasonably put right by the Council’s apologies and £150 payment.
40. I made no recommendations for service improvements as the Council had already taken steps to avoid similar problems arising in the future (see paragraph 29).

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Final decision

41. I completed my investigation finding there was fault causing injustice which the Council had already suitably put right.

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Investigator's decision on behalf of the Ombudsman