Summary: There was no fault in how the Council decided a planning application to extend a neighbouring house. Ms B is concerned the plans are wrong, but the Council took its assessment from several site visits. The Council applied its planning policy and properly assessed the impact on Ms B’s daylight.

The complaint

1. Ms B complains about how the Council handled a planning application to build an extension to the house on a site next to her home. In particular, Ms B says:
• The location block plan was incorrect due to an Ordnance Survey mapping error. This meant the Council could not properly assess the impact on her property;
• On a previous application, the Council did not notice the inaccuracies and recommended that the planning committee grant planning permission despite the new house not even fitting within the site boundary when drawn correctly; and
• At the planning committee meeting, Members said they were 'voting in the dark' with these inaccurate and misleading plans. Her Ward Councillor has said she felt sure the Council would not have granted permission had Members visited the site.
2. Ms B says that as a result of the planning permission, the extended house will run the length of her garden. She says it will be overbearing, overshadowing, and reduce light to her house.

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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 considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including the planning file documents and I have watched the recording of the relevant planning committee meeting. I also considered the Council’s planning policy and its response to my enquiries. Both parties have had the opportunity to comment on a draft of this statement. The Council confirmed it had no comments. Ms B has sent me comments and photographs (including aerial photographs) of the partially constructed extension. I have taken all these into account before reaching my final decision.

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What I found

Planning policy

6. The Council’s policy is set out in its Good Design Guide. This says that it will apply the 45-degree rule to planning applications for extensions which might affect the outlook from or daylight to a neighbouring property. The policy says a line is drawn from the nearest appropriate window at a 45-degree angle. The new extension should not cross this line. If it does the new extension would impact on the outlook of the neighbour.
7. An appropriate window is the main source of light to a habitable room. Habitable rooms include living rooms, bedrooms and kitchens, but not bathrooms, utility rooms, landings or garages.

What happened

8. Ms B lives in a detached house in a residential area. Her neighbour’s house is deeper than Ms B’s home and extends further back in the plot. Ms B has a view of the side of her neighbour’s house from the kitchen-dining room that runs along the rear of her home. The kitchen-diner has French doors, a main triple kitchen window and a single window.
9. In 2019, the neighbour applied to the Council to extend the house. The proposal was for an extension in the roof and a single-storey extension to one corner of the house: the furthest corner from Ms B’s home. Ms B complained to the Council that the plans were wrong because they showed the neighbour’s house forward of her own when these are level, and this meant the proposal would not actually fit in the neighbour’s garden. The Council visited the site twice to assess the proposal.
10. The Council recommended its committee grant planning permission, and Ms B’s partner spoke at the committee meeting. The Council refused the planning application. It decided that the extension would have a significant impact on Ms B’s amenity as it would reduce light to it and be overbearing.
11. The neighbour submitted a further planning application. This time it reduced the size of the rear extension and removed the roof extension. Again, Ms B objected to the application. She said that the plans were still not correct, and the extension would infringe the 45-degree rule. Ms B said this had not been taken from the nearest window to the extension and the neighbour had not drawn the line at the correct angle. Ms B says that in fact, the extension infringes a 45-degree line taken from any of the rear windows of the kitchen-diner.
12. Ms B also said the new extension would block the small amount of light to their property and their garden would be surrounded by housing on all sides, and it would damage the roots of the protected trees in the neighbour’s garden.
13. The Council’s planning officer had visited the site twice in relation to the earlier refused application, and at the request of Ms B, he visited the site again and Ms B’s home. The officer’s site visit photographs show they observed the site from both the applicant’s and Ms B’s garden. The Council also discussed the application with Ms B’s partner, and their councillor, and it says it walked through the house and the upstairs to appreciate potential overshadowing. Ms B says the Council did not go upstairs in their house.
14. The Council asked the applicant to submit more accurate plans. These show that the existing house and the extension both impinge on the 45-degree line. Ms B says the plans are still inaccurate, and show the line drawn at the wrong angle, and do not reflect that her home is at a slight angle in its plot towards the application site.
15. In terms of the 45-degree rule and assessment, the Council has explained that took the measurement from the triple window as it considered this to be the primary window. The Council says it took the measurement in two ways. Once informally whilst on site from the centre of the window; and then from the plan and photographs that allowed it to calculate the distance between the rear elevation of the existing house and the triple window.
16. The Council concluded that the existing house already infringes the 45-degree rule, and that the extension does not further contravene this rule as it is behind the existing house, on the furthest corner from Ms B’s home. The Council says the extension will not be visible from the primary window of Ms B’s kitchen-diner.
17. The Council has explained that Ms B’s garden is north facing and so naturally shadows its own garden space. The existing house on the application site and trees on the boundary also cause some overshadowing. Ms B says her garden faces north-east and the extension is east of her house. This means that she did get morning sunlight in the rear part of the garden but the extension will block this.
18. The Council has further explained that the roof design is nearly nine metres inside the boundary of the site and slopes away from Ms B’s home. The Council says the design of the roof limits any further impact on her light or sense of overbearing; the small amount of light that could already enter the garden would still enter through the tree canopy; and the extension would not cause a further loss of light to inside Ms B’s home.
19. The Parish Council objected to the application. It said the extension would be an overdevelopment of the site; is out of character with the other houses in the street; it would impact negatively on light to Mr B’s property; and the plans were inaccurate. The Council’s tree officer did not object to the application. The Council says the tree officer was satisfied that the applicant met the industry standard to protect the existing trees during construction.
20. The Council’s planning committee considered the application. The Planning Officer report to the committee considered the impact on Ms B’s use of her home. It said:
• Overall officers concluded that the new extension would not have an impact on the privacy and amenity of Ms B.
• The original building infringes the 45-degree rule. But the proposal does not further contravene this. The new extension cannot be seen from the nearest primary window as it is behind the existing house. The hipped roof design of the extension limits the adverse impact.
• The extension has been significantly reduced in scale, depth and mass from the previously refused scheme
• The extension is set back from the boundary and so there is no impact on the light into Miss B’s home in addition to the impact of the existing building. In conclusion, the extension would not result in significant further adverse impact on amenity.
21. I have viewed the video recording of the planning committee. This started with the planning officer’s presentation. It referred to the tree protection plan and the construction method that takes account of root protection. It set out the difference between the refused application and the current application. The officer showed Members photographs of the site including the position of the extension and views from the rear of Miss B’s home towards the site. Ms B says the photographs did not show the large tree in the neighbour’s garden whose roots would need protecting, and did not show the early morning sun that came into the rear part of the garden and would be blocked by the new extension.
22. The clerk to the committee read Ms B’s statement in objection to the application. This said:
• There has been a mapping error and so how can we say the plans are correct. Nobody has been to measure her house in relation to her neighbour’s.
• The plans are inaccurate and misleading. They make the garden look bigger and make the impact on Miss B look less.
• The plan does not show which window the Council has measured the 45-degree line from. It should be from the nearest window but it is from the middle window. The existing house infringes the 45-degree rule already and this proposal means there will be a larger infringement.
• The extension will run the full length of their garden and they will be completely closed in.
• Access to the morning sunlight is compromised. The neighbour’s house already blocks the morning sun and this extension will block it completely.
23. Ms B’s ward councillor spoke against the application. She asked why the 45-degree line was taken from the middle window and not the nearest window. Members debated the application. One member said that there had been questions about the accuracy of the plans and if these were not clarified then they were ‘voting in the dark’. The officer explained that the Council knows there can be inaccuracies on ordnance survey plans, but this is why the officers visit the site. The officer made a judgement based on observations from the site visits.
24. The Council’s planning committee granted planning permission. It attached planning conditions including that the trees would be protected during construction.
25. Ms B complained to the Council. Since the foundations were laid, she has told the Council that it is now clear the extension will infringe the 45-degree rule to a greater extent than the Council anticipated and the plans were not accurate. The Council has said it will visit and consider enforcement action if the extension is not being built in accordance with the plans. Ms B again makes the point that the extension may be in accordance with the plans, but these are wrong because they do not accurately show the relationship between her house and the neighbouring house and extension. Ms B tells me that she can see the extension from her kitchen window but has not been able to send me a photograph showing this.

Was there fault by the Council causing an injustice to Miss B?

26. The Ombudsman’s role is to make sure the Council assessed the proposal properly and reached a decision based on all the relevant factors.
27. There was no fault by the Council in how it assessed the planning application. The original ordnance survey plan was wrong. The Council has explained that these can be wrong and the Council will always visit the site to make sure it can accurately assess the proposed development.
28. The Council did not grant planning permission for the earlier scheme and so I have not investigated how the Council dealt with those plans.
29. The applicant submitted inaccurate plans when he applied for permission for the current design. Ms B alerted the Council and the applicant submitted replacement plans. Ms B has raised concerns that these are still inaccurate. However, the Council has visited the site several times and decided the plans are sufficiently accurate, together with the site observations, to allow it to assess the impact of the extension on Ms B’s amenity. The Council has properly considered the accuracy of the plans.
30. The Council decided that the extension would not increase the impact on Ms B’s light. It has taken the 45-degree line from the nearest primary window to the extension. It did this informally on site as well as using the plans and photographs. The neighbour’s existing house impinges the line as will the new extension. But the Council has said that because the extension is behind the existing house, it will not impact further on light to Ms B’s home or the part of her garden nearest the house. These areas are the focus of an assessment of the impact of the new development on amenity.
31. Ms B says that more of the existing house, and nearly all of the extension impinges the 45-degree line when taken from the triple kitchen window. However, the key issue is whether these discrepancies mean the Council officers and its planning committee did not have an accurate understanding of the proposal, and importantly of how the extension would impact on Ms B.
32. I am satisfied that the Council had an accurate understanding of the proposal and more importantly, the discrepancies raised by Ms B do not alter the fundamental basis of the Council’s assessment. The extension is still behind the existing house, and so even if the Council agreed with Ms B, it does not alter the basis of the assessment: that the extension does not reduce further the light to that kitchen window.
33. The Council has decided that the nearest primary window is the triple window to the kitchen diner. Ms B says the nearest window is the single window. However, the Council’s explanation of why it chose the triple window as the primary window is justified and reasonable. There was no fault when it decided to take the 45-degree line from there.
34. The 45-degree rule is only one consideration for the Council. It has explained that because the house already impinges the rule and the extension is behind the existing house, even if the new extension breaches the rule, it does not automatically mean the Council should refuse the application.
35. The Council has also taken into account the roof design of the extension, that it is away from the boundary and also slopes away from the Ms B’s home; the orientation of Ms B’s plot which means it blocks its own sunlight to the garden and direct sunlight is limited; and the cover provided by the existing trees. It has used all these factors to reach its decision that the extension does not make the limit on direct sunlight worse. There is no fault in how the Council officers assessed the planning application.
36. I have watched the planning committee meeting. A Member said the committee would be voting in the dark if the disputed plans were not clarified as they were inaccurate and misleading. The Council’s officer confirmed that they had visited the site and was satisfied they could reach an accurate assessment. If Members remained confused, they could have sought further clarification during the debate.
37. Ms B has also said that the development is overbearing because there are now buildings on all sides of their garden and on the application site, the building runs the whole length of the garden. It is clear from the plans considered by the planning committee, that the new extension will come close to the site’s rear boundary. However, it is also clear the extension is set back. Members had sufficient information to be able judge this.
38. Although the photographs shown to Members did not include the large tree, this was included in the tree protection plan, submitted by the applicant and approved by the Council’s Tree Officer. Again, Members had sufficient information to be able to decide whether protection of the trees had been properly considered.
39. Ms B has raised that her ward councillor’s opinion is that the extension should not be allowed because it is overbearing and impacts on Ms B’s light. However, it is open to the Council’s planning officers to reach a different conclusion based on their training and experience, and on planning policy. It is not fault for the Council to reach a different conclusion to the ward councillor.
40. Ms B and her partner have complained further to the Council, now that the extension is part built. Ms B says more than half the extension is over the 45-degree line, even when taken from the triple window. The Council will visit the site and decide whether the extension accords with the approved plans.
41. Ms B says the extension may accord with the plan but the plan wrongly shows the relationship between her home and the neighbouring houses. However, the Council’s assessment was based on the extension being behind the house. This will not have changed despite any discrepancy in the relative position of the two houses in their neighbouring plots.

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Final decision

42. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman