Summary: The Council was at fault for the way it handled Mr X’s neighbour’s prior approval application. The Council misread a height measurement which led to a procedural error. Mr X experienced an injustice as a result of this error for which the Council has agreed a remedy.

The complaint

1. Mr X complains the Council was wrong to validate and grant prior approval for his neighbour’s extension.
2. He says:
• the extension is higher than the law allows; and
• the case officer’s report disregarded his comments.

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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 have considered Mr X’s complaint and the Council’s response.
6. 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

The Law

Prior Notification/Prior Approval

7. Between permitted development (which does not require planning permission) and a planning application there is a third process - Prior Notification (also known as Prior Approval). This applies where the development is, in principle, permitted development, but the council must authorise certain elements of the work.
8. The purpose of the procedure is to ‘fast track’ acceptable development but give councils limited control to regulate more controversial development.
9. The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) sets out the types of residential extensions permitted and not permitted under the legislation. It states that a single storey rear house extension is not permitted development if it exceeds 4m in height.

What happened

10. Mr X’s neighbour submitted a Prior Approval Notification application to the Council. He was told this application was needed as his proposal did not fall within the limits of the GPDO. If it had fallen within the limits of the Order, it would be permitted development, and an application would not be required.
11. The Council consulted the neighbours, including Mr X. Mr X submitted his objection to the proposed development and stated its dimensions were beyond the limits set in legislation.
12. The Council summarised the representation letter received from Mr X in its officer report, which said:
• The proposed extension comes within 2m of the boundary but has a height to eaves of 3.4m, exceeding the “height to eaves limit of 3m.
• The overall height is 4.8m, exceeding the overall height limit of 4m.
• No Listed Building Consent has been submitted for the proposal - the property is Grade II listed.
13. The report highlighted the relevant legislation and set out the limitations imposed by the Order. It explained the proposal’s dimensions were above the limitations of one subsection of the Order but stated it fell within the limitations a different part of the Order and the prior approval application was therefore valid.
14. The Council said it assessed the impact of the proposed development on neighbouring occupants. It said it considered the distance from the neighbouring property and the orientation of the development to assess whether it would be easily visible. The Council said it considered the position of the windows and the height of the extension, stating the height would be unlikely to impact negatively on the amenity of nearby residents.
15. In its response to Mr X’s complaint, the Council acknowledged the report did not cover the proposed height of the extension in sufficient detail. It apologised and assured Mr X, it had taken steps to reinforce the need for officers to do this.
16. The report states Mr X’s representation did not explicitly object to the proposed development. Mr X said that he did. In its response to Mr X’s complaint, the Council confirmed his representation was registered as an objection and treated as such. However, being able to see the proposed extension did not equate to significant harm in residential amenity terms.

My findings

17. I have found fault with the Council’s handling of Mr X’s neighbour’s application. I consider the Council to have misread the height of the proposed extension, or the limitations in the Order. This resulted in the Council considering the extension under the wrong legislation. The development required planning permission, not just prior approval. This is a procedural error.
18. Despite this mistake, I am satisfied the Council properly considered Mr X’s representation and the general impact of the proposal on residential amenity in the same way it would have done had it been a full planning application. Therefore, the outcome would be unlikely to be any different.
19. For this reason, I do not consider the fault to have caused Mr X an injustice from a planning point of view. The Council consulted him on the application and considered his objection and the impact of the development on neighbouring properties. I cannot question the merits of the Council’s decision that the extension would not cause harm to the neighbours’ amenity if the decision was properly reached.
20. I do consider Mr X experienced an injustice as a result of the fault in terms of the time and trouble it has taken him to pursue this complaint. I have recommended the Council pay Mr X £100 to remedy this.

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Agreed Action

21. Within 4 weeks of my final decision, the Council has agreed to:
• Apologise to Mr X for considering his neighbour’s extension under the wrong legislation; and
• Pay Mr X £100 for the time and trouble it has taken him to pursue his complaint.

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Final decision

22. I have completed my investigation. The Council was at fault for considering Mr X’s neighbour’s extension under prior approval legislation. The fault caused Mr X an injustice. The Council has agreed to apologise to Mr X and pay £100 for the time and trouble it has taken him to pursue his complaint.

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Investigator's decision on behalf of the Ombudsman