Summary: Mr X complained about the Council's consideration of a planning application to build a two storey extension next to his property. Mr X said the development would harm his amenity and the character of the Conservation Area. We found fault in the decision making process but cannot say that, but for the fault, the outcome would have been different. However, it did result in inconvenience to Mr X and a loss of opportunity to object to the planning application.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council wrongly granted planning permission for a two storey development next to his home.
2. Mr X says the development has negatively impacted his home in terms of loss of light and overshadows his garden area. He has spent time pursuing this due to the Council’s errors.

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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. 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)
5. 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

6. As part of this investigation I considered the complaint made and the responses by the Council. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mr X’s representative and the Council and considered comments received in response.

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What I found

Planning applications

7. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
8. Councils must consider applications on their planning merits and make decisions in line with relevant policies in their development plans, unless material planning considerations suggest otherwise. Material considerations concern the use and development of land in the public interest, and not private matters such as the applicant’s behaviour or house prices. Material considerations include issues such as overlooking, layout and density of the building, and traffic generation.
9. Non-material planning considerations that are not relevant to a council’s decision include issues such as previous objections or representations regarding another site or application, loss of property value and loss of view.
10. Planning policies and material planning considerations may pull in different directions, for example, supporting new housing and protecting existing residential amenities. While councils must take account of relevant policies and material planning issues, they may give competing considerations different weight. In practice, this means councils may grant planning permission for development that does not comply with all relevant planning policies.
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 residential design guidance states:
13. “Two storey rear extensions which are closer than 2 metres to a neighbouring boundary and project more than 3 metres in depth are not normally considered acceptable. This is because they can be too bulky and dominant, and have a detrimental effect on the amenities of neighbours.”
14. “Two storey rear extensions need to ensure they do not lead to:
• loss of light to, and outlook from, windows and glazed doors positioned close to the extension
• unacceptable sense of enclosure to house and garden
• overbearing impact
• harm to the character or appearance of the property and area”

What happened

15. In May 2016 the Council granted planning permission to Mr X’s neighbour for a part single, part two storey rear extension. The single storey rear extension was close to the boundary with Mr X’s property.
16. The Council approved a planning application to vary this planning permission in September 2016. This was an application for a material minor amendment to the original planning permission. The description of this variation did not include a first floor rear extension above the single storey extension close to the boundary with Mr X’s property. However the drawings submitted showed a first floor rear extension. The notification letters sent to neighbours and information on the Council’s website did not include information about the first floor extension. In addition, the case officer’s report did not mention a first floor rear extension. Therefore Mr X believed the part of the development close to his boundary was a single storey extension only and did not object.
17. In late 2019 Mr X realised his neighbour was building a two storey rear extension near the boundary with his property. He raised this with the Council saying his neighbour did not have planning permission for a two storey development. Mr X said the development would overshadow his garden and obstruct the light to his patio. The Council opened an enforcement investigation and visited the site in January 2020 and February 2020.
18. The Council decided Mr X’s neighbour had not breached planning control as the extension was being built in line with the approved plans. On 11 February 2020 Mr X’s representative contacted the Council. He said the planning documents did not describe the development as a two storey rear extension. He also said adding an additional floor to the already approved ground floor extension should not have been dealt with as a material minor amendment. Mr X’s representative said he had carried out an assessment of the development and believed the Council would not grant planning permission due to the impact on Mr X’s amenity.
19. The Council responded on 16 March 2020. The Council acknowledged it did not include the first floor extension in the description of the development or in consultation letters. It also agreed this would not be something it would normally deal with as a minor amendment. The Council said the drawings of the development submitted did show a two storey rear extension. The Council apologised for its errors but said it did not think the impact on outlook or overshadowing was so harmful to Mr X’s property and would not warrant revocation of the planning permission.

Mr X’s complaint

20. On 12 May 2020 Mr X’s representative raised a complaint to the Council. He asked the Council to either revoke the planning permission or pay Mr X compensation. He said:
• The description of the changes described in the application to vary which the Council approved in September 2016 did not include a first floor rear extension to the originally approved rear extension. The Council did not include the correct description of the development in the consultation letters or on the Council’s website and there is no mention of the first floor extension in the case officer’s report.
• The Council was clearly not aware that Mr X’s neighbour was proposing a two storey rear extension close to the boundary of Mr X’s property as it dealt with this as a material minor amendment.
• Had the Council made Mr X aware of the two storey extension he would have objected to the proposals.
• He has made an onsite assessment on how the two storey extension impacts Mr X’s amenity and considering the Council’s design guidelines cannot see how a two storey extension would have been granted planning permission.
• The extension causes significant loss of outlook and an increased sense of enclosure to Mr X and the extension also takes away a significant amount of sunlight to Mr X’s property. Mr X’s representative provided a video taken in March 2020 showing Mr X’s back garden and the impact of the development.
• The extension does not preserve or enhance the character and appearance of the conservation area.
21. The Council provided its stage one response to the complaint in late May 2020. The Council did not uphold the complaint and said:
• It made errors in the way the case officer considered the application to vary but does not believe this would have resulted in a refusal of planning permission.
• There is some overshadowing from the video submitted but this was at a time when the sun was lower in the sky.
• It visited Mr X’s property and viewed the extension from outside and inside and concluded the extension was not harmfully overbearing or caused an undue sense of enclosure. The Council considered the location of the windows in Mr X’s property and the width of his property.
• It would not commission and independent daylight and sunlight assessment.
• The Council’s consultee on heritage matters approved the plans for the development. However the Council’s Design and Heritage Manager has also looked at the development and decided it would meet the test of preserving or enhancing the character and appearance of the conservation area.
• The Council concluded there was some impact on the residential amenities of Mr X from overshadowing but on balance this was not severe enough to warrant refusal of planning permission.
• The Council provided some examples of other properties on the road where extensions were approved.
22. Mr X’s representative asked the Council to consider the complaint at stage two of its complaints procedure on 12 June 2020.
• He provided videos taken in May 2020 of Mr X’s garden showing the patio in shade. He said this disproved the Council’s claim overshadowing would not be significant in the months when the garden and patio area are most likely to be used.
• The Council’s design guidance says overshadowing is not acceptable in any part of the day, not that it is acceptable on certain parts of the day.
• The Council has failed to consider the impact of the development inside Mr X’s property and has not considered loss of light to the rear ground floor windows. He said the video evidence showed overshadowing of the ground floor windows of Mr X’s property and asked the Council to commission a sunlight and daylight report.
• The Council’s criteria to justify the impact of the development is flawed as it considers the width of the property. The Council should solely consider the impact on each window and commission a site plan to show the relationship of the development with the nearest ground floor window in Mr X’s property.
• The examples the Council provided of similar extensions it approved are poor and do not justify the Council’s position.
23. The Council provided its stage two response in July 2020. The Council agreed with the findings provided at stage one of the complaint procedure:
• It apologised for the way it decided the planning application and the errors made. The Council said the two storey element of the rear extension was omitted from the neighbour consultation letter and officer’s delegated report. Also full planning permission should have been sought for the changes rather that the material minor amendment submission.
• It has watched the videos Mr X’s representative has sent and agrees the extension does have an impact on Mr X’s property, it does not think the impact is severe enough to justify a refusal of planning permission.
• It does not consider the approach used to assess the impact on the development flawed as Mr X’s representative says. The Council said it is wrong to say that the width of a property is irrelevant when considering the merits and impacts of a planning proposal. The particular characteristics of the property and relationship between adjoining properties is important and in certain instances the impact of a proposal on a narrow middle terraced property, as an example, and a larger property built on a much wider plot could be a material factor in the way that an application is determined.
• The Council said it was satisfied with the justification provided in its stage one response.
24. Mr X remained dissatisfied with the Council’s response and complained to the Ombudsman.

Analysis

25. We are not a planning appeal body. Our role is to review the process by which decisions are made and if we find fault, to determine whether it caused an injustice to the individual complainant. Therefore we cannot judge the planning merits of the application. Where we find fault, we must consider if this caused an injustice to Mr X and if it did what the Council should do to address that.
26. When considering the planning application the Council did not include the correct description of the two storey rear extension on its website and consultation letters. In addition, the case officer’s report did not mention the two storey rear extension and did not consider the impact of this in the report. This is fault.
27. The result of this was the Council approved an extra floor on Mr X’s neighbour’s rear extension as a minor planning amendment when it should have sought full planning permission. This is also fault.
28. The Council has rightly accepted this and apologised to Mr X for the way it considered the planning application. As I have found fault I need to consider whether this has caused Mr X injustice. The obvious injustice is that without the fault the Council would have come to a different decision on the planning application. In addition Mr X did not object to the planning amendment as he did not know the development would have a two story rear extension. Had he been provided with the correct information by the Council he would have objected.
29. Having reviewed the planning application as part of the complaints procedure the Council says it still would have approved the development. Mr X’s representative has argued the development has a significantly negative impact on Mr X’s property in terms of overshadowing, loss of light and a sense of enclosure. He also argues the Council’s interpretation and consideration to justify the impact of the development was flawed and not in line with its design standards.
30. Failure to comply with design standards does not mean the Council must automatically refuse the application or revoke planning permission. The Council must consider if despite the loss of light, sense of enclosure and overshadowing in this case, the proposed extension would be acceptable in planning terms or likely to cause unacceptable harm to neighbouring amenity. That is a matter of professional opinion.
31. The Council visited Mr X’s property to look at the impact of the development. It decided the development impacted on Mr X’s property in terms of overshadowing and loss of light but this was not an unacceptable level of harm to warrant refusal of planning permission. The Council also asked its Design and Heritage Manager to look at the development and obtained feedback from its consultee on heritage matters, both of which said the development was acceptable. Therefore on the balance of probabilities I do not think the Council would have come to a different decision had the fault not occurred. However the Council’s errors in how it decided the planning application have presented Mr X with a planning decision he continues to question the merits of. The Council’s errors also resulted in Mr X not submitting an objection to the proposal and making a complaint which he otherwise may not have made. While the Council has apologised for its errors this is not enough to remedy the injustice.

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Agreed action

32. Within one month of my final decision the Council agreed to pay Mr X £200 to reflect the avoidable inconvenience he experienced and loss of opportunity to object to the application caused by the Council’s errors.

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Final decision

33. I have completed my investigation and found there was fault by the Council which caused injustice to Mr X. The Council has agreed to the above action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman