Summary: Ms F complains the Council did not properly consider the impact on her home when it granted planning permission to a neighbour’s extension. We found there was fault in the planning officer’s report, but this did not cause injustice to Ms F. The Council delayed dealing with Ms F’s complaint. It has agreed to make a payment to acknowledge the time and trouble this caused her and make improvements to its service.

The complaint

1. Ms F complains the Council did not properly consider the impact on her home when it granted planning permission to a neighbour’s extension. She says the extension is overbearing and less than 3 metres from her boundary, causing a loss of privacy and overshadowing. She also complains about the way the Council dealt with her complaint, causing her time and trouble.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Ms F about her complaint and considered the information she sent and the Council’s response to my enquiries.
5. Ms F 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

Planning permission

6. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. Councils must decide the application under their development plan unless any other material considerations suggest otherwise.
7. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as reduction in the value of a property. They include issues such as overlooking, overshadowing and privacy.
8. Councils' case officers need to consider the proposed development. The case officer's report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
9. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions.

The Council’s planning policies

10. Councils issue supplementary planning guidance on how they would normally make their decisions and how they generally apply planning policy. The Council’s supplementary planning document on householder development says planning permission will normally be granted for side extensions provided that:
• The extension would be no more than 3m wide or occupies no more than half the width of the original house (whichever is the greater);
• The extension is set in a minimum of 1m from the side boundary at first floor level; or
• The extension is set back a minimum of 1m from the main front elevation and the roof ridge is designed so as to be lower than the original roof ridge;
• Roofs should be pitched to match the original roof; flat roofs are not acceptable.
11. It also says there should be a separation distance of 12.5 metres from a rear habitable room to a blank elevation or a first floor non-habitable window.
12. The Council’s policy “GEN8 householder developments” states developments should maintain “reasonable standards for light and privacy” for affected neighbours and “avoid unacceptable overshadowing and dominance at close quarters”.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their local plan policy along with other material planning considerations. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities). However, it is for the council as the decision-maker to decide the weight to be given to any material consideration in determining a planning application.

The Council’s complaint procedure

14. The Council has a two-stage complaint process. It aims to respond within 10 working days at stage one and 15 working days at stage two. If it cannot, it will inform the complainant.

What happened

15. Ms F’s rear neighbour (Mr X) applied for planning permission to build a two-storey side extension. The extension was proposed to be 6.2 metres long and 3 metres wide.
16. Ms F and Mr X’s houses are built at an angle to each other, which means that the development extends towards Ms F’s rear boundary but the rear elevation of the Mr X’s house and proposed extension does not directly face the rear elevation of Ms F’s house.
17. The application was publicised, and Ms F objected to it. Her main concerns were that:
• Because Mr X’s house was built at a considerable angle in relation to the rear boundary and because of the orientation of the house, the development should be considered a rear extension as well as a side extension.
• The extension would be only 2.8 metres from the rear boundary, which was a severe infringement of planning policy which said rear extensions should be 7 metres from the rear boundary.
• The development would be an overbearing and overshadowing structure that will lead to a significant loss of privacy and light.
18. The application was considered by a planning case officer, who wrote a report. The case officer's report included:
• a description of the proposal and the site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance; and
• an appraisal of the main planning considerations, including the concerns of objectors, and the impact on amenities.
19. The report said the proposed extension complied with planning policy as it was a side extension which did not project more than 3 metres from the main side wall of the dwelling. Although the closest corner of the extension would be less than 3 metres from the rear boundary, it did not directly face the rear of the dwellings so there would be no direct overlooking. In addition, the new first floor window to the rear would be obscurely glazed. The report also noted there was a difference in ground levels with houses to the rear sitting higher than Mr X’s.
20. The plans showed the proposed extension was between 2.8 metres and 5.1 metres from the rear boundaries of properties on Ms F's road. Those properties were approximately a further 10-11 metres from the boundary, giving a separation distance of 13-16 metres.
21. The report concluded that the proposed extension complied with relevant planning policy, neighbours’ amenity would not be significantly affected in terms of dominance or overlooking, and there was no reason to justify refusal of planning permission. The application was approved subject to planning conditions by a senior officer using delegated powers.

Ms F’s complaint

22. Ms F complained about the decision on 14 July 2020. The Council responded that the development complied with relevant planning policy, the impact on neighbours had been assessed and there was no evidence the case officer was not fair minded in reaching the recommendation to approve the application.
23. Ms F asked about the law and guidance on proximity of two-storey extensions to boundaries. The Council did not reply to these queries until 9 September 2020, when it said that:
• There are no stated distances in law about how close extensions can be to boundaries; it was therefore a question of judgement, amongst other things.
• The guidance on two storey side extensions prescribes dimensions that are primarily aimed at the impact on directly adjacent properties.
• Mr X’s extension required planning permission, so the Town and Country Planning (General Permitted Development) Order 2015 (as amended) requirement that “development is not permitted if the enlarged part of the dwelling would have more than a single storey and be within 7 metres of the curtilage of the dwelling being enlarged which is opposite the rear wall of that dwelling” was not relevant.
24. Ms F remained dissatisfied and asked for her complaint to be escalated to stage two on 23 September 2020. She was concerned there was no formal guidelines about proximity of an extension to a rear boundary and about the professional judgement that had been exercised.
25. She says more than ten emails were sent by her or local councillors on her behalf to chase a reply, but she only received an acknowledgement on 21 October. The Council then said the emails had been misfiled and she would receive a response in a week. At the end of November, she contacted the Chief Executive who replied that the complaint would be investigated urgently. When she did not receive a response, she approached the Ombudsman in December 2020 but it was too soon for us to investigate as she had not yet completed the Council’s complaint procedures.
26. The Council sent its final complaint response on 15 January 2021. It apologised that there had been an unacceptable delay, which had been caused by issues related to the COVID-19 pandemic.
27. The Council did not uphold Ms F’s complaint. It considered the case officer’s report outlined the reasons for recommending planning approval and there was no evidence of a lack of professional judgement. The Council said the stage one reply had attempted to provide clarification, though the use of non-technical language and plain English would have improved this.
28. Ms F came back to the Ombudsman. She said the extension had caused distress, affecting her sleep and wellbeing, as it was so close to her home and garden and the Council’s failure to respond had added to this stress. She considered guidelines should be put in place governing how close to a rear boundary a two-storey extension can be and that the Council’s complaints process was unfit for purpose.

My findings

29. 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. It is not for me to determine whether Mr X’s extension causes overshadowing or loss of light or is too close to Ms F’s boundary. My role is to determine whether there has been administrative fault in the way the Council made its decision to approve the application.
30. Ms F is concerned there is no rule about the distance of a two-storey extension from a rear boundary. This is not fault. National planning policy and the law do not set minimum separation distances in these circumstances. The Council is entitled to set its own policy, which says (amongst other things) planning permission will normally be granted for side extensions that are no more than 3m wide and developments should maintain "reasonable standards for light and privacy" for affected neighbours and "avoid unacceptable overshadowing and dominance at close quarters". Planning decisions are based on balancing competing interests and making an informed judgement against a local and national policy framework in the wider public interest. It is for the Council to weigh up these issues for each application and reach a decision using its professional judgement.
31. If Mr X’s extension had been more than 7 metres from the boundary and had met other criteria, it may not have needed planning permission. But that does not mean planning permission must be refused if the extension is closer than 7 metres.
32. The case officer's report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered the impact on the amenity of existing properties. The report then assessed these matters and concluded the development would not cause any significant harm to the living conditions of neighbours in terms of overlooking and dominance. It concluded there were no planning reasons to justify refusing the application.
33. The report does not discuss loss of light or overshadowing, despite it being noted as a point of objection. Our guidance for planning practitioners says we would expect to see a record showing how a council considered any material planning matters before reaching its decision. I therefore find there is fault in the case officer’s report as it does not fully assess all the material planning considerations.
34. In response to my enquiries about this, the Council said Ms F's garden is south facing and given the path of the sun throughout the day and that her property sits higher than Mr X’s, it was not considered that there would be a significant loss of sunlight/daylight as a result of the proposed extension.
35. I have carefully considered whether the planning decision would have been different if there had been no fault in the report. When considering complaints, we may 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.
36. The officer had visited the site and was aware of Ms F’s concerns about the proximity of the development. The development complied with the Council’s policy on side extensions. Ms F’s rear elevation does not directly face the extension, so the policy on separation distance between windows did not apply; nonetheless the separation distance is more than 12.5 metres. There is no minimum distance for an extension to a rear boundary.
37. The Council decided the impact on Ms F's, or any of the other properties, did not give grounds to refuse the permission. It has provided reasons for taking this view. While I appreciate Ms F does not agree with this assessment, I am not persuaded that, despite the fault in the report, the outcome of the planning application would have been different. I consider it likely the Council would have approved the application even if there had been more detailed assessment of overshadowing and loss of light in the report. I therefore do not find that the fault caused Ms F injustice.
38. The Council has accepted there was fault in its complaint handling and has already apologised for this. Ms F first complained on 14 July 2020 and received the final complaint response in January 2021. This is not in line with the Council’s complaints policy which aims to have responded to both stages of a complaint within about six weeks. The Council says the delays were caused by workload pressures and the COVID-19 pandemic. Our guide to good administrative practice during the response to COVID-19 accepts complaint handling capacity will probably be reduced during the pandemic but says councils should be realistic with complainants about the timescale and let them know if there is going to be a delay. The Council did not do this and I therefore find there was fault which caused Ms F time and trouble.

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Agreed action

39. Within one month of my final decision, the Council has agreed to pay Ms F £100 to acknowledge the time and trouble she was caused by fault in complaint handling.
40. Within three months, it has agreed to:
• Put a system in place to ensure:
1. Acknowledgements are sent promptly when complaint correspondence is received.
2. Complaint correspondence is correctly filed.
3. Complainants are kept informed of any delays in the investigation of their complaints.
• Send evidence to the Ombudsman of the actions it has taken.

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Final decision

41. 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