Summary: The Council has accepted it lost Mrs D’s objection letter to a neighbour’s extension. This meant prior approval was not required for the extension, causing distress and an adverse impact on Mrs D’s amenity if the extension is built. The Council has agreed to make a payment to Mrs D to remedy this injustice.

The complaint

1. Mrs D complains the Council lost her objection to her neighbour’s planning application. As a result, it was unable to consider the impact of the proposal on her property and approval was granted. Mrs D says the extension will cause significant overshadowing and the situation has caused her severe anxiety and distress. Mrs D also complains there has been a data breach, causing her distress.

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The Ombudsman’s role and powers

2. 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)
3. 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. When considering complaints, if there is a conflict of evidence, we 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.
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. 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

7. I considered the information Mrs D sent and the Council’s response to my enquiries and The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020.
8. Mrs D 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

Prior approval and permitted development rights

9. Normally any development of land will need planning permission. However, certain developments are considered ‘permitted developments’ and therefore do not need planning permission. Under permitted development rules householders can build single storey rear extensions of up to three metres in length and four metres high without planning permission.
10. 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.
11. In 2013, the Government introduced a scheme allowing householders whose properties had permitted development rights to build larger, rear single storey extensions using the prior notification process. For terraced houses, this scheme allows prior notification of extensions up to six metres long.
12. The householder must tell the council what their plans are. The council will then tell the neighbours. The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 says the council must give neighbours a minimum of 21 days to comment from the date of the notice. If a neighbour objects the council must decide if there is an unacceptable impact on their residential amenity. This includes impact of overshadowing, outlook and privacy from the proposed development.
13. If no objections are received, and the development meets the criteria, the council will decide that prior approval is not required and the development will be permitted.
14. The council has 42 days from receiving the application to notify the developer of its decision. If the council fails to reach a decision within this time then the development will be permitted.
15. Section 70A of the Town and Country Planning Act 1990 gives councils the power to decline to determine a repeat planning application, where a similar proposal has previously been refused planning permission either by itself or on appeal.

Confidentiality of personal data

16. A personal data breach should be reported to the Information Commissioner's Office (ICO) if it is likely to cause a risk to people's rights and freedoms. Not every breach has to be reported.
17. The ICO has been given a specific remit to investigate complaints about how organisations handle personal data. It has powers to take enforcement action against the organisation if a breach is found. In addition there is no charge for making a complaint to the ICO, its complaint procedure is relatively easy to use and its decision notices may be appealed to the First Tier Tribunal (Information Rights). So we normally consider it reasonable to expect the person to refer the matter to the ICO.

What happened

18. Mrs D lives in a terraced house. In 2019 her neighbour applied for prior approval of a single storey extension. The extension was 6 metres long and 3.7 metres high. Mrs D objected and the Council refused the application on the grounds that:

“the proposal would be contrary to the guidelines for single storey rear extensions outlined in design and development control guideline of the London Borough of Bexley 2004 Unitary Development Plan, which seeks to ensure that single storey rear extensions on semi-detached [and terraced] properties do not exceed 3.5m in depth in the interests of neighbouring amenity. An extension of 6m in depth is considered to have a significant adverse impact on neighbouring amenity which the council cannot support.”

19. The neighbour made another, similar application a few months later. Mrs D again objected and the Council again refused the application on the same grounds.
20. In June 2020, the neighbour made a third application which was virtually identical to the first two. Although this was a repeat application of a previously refused application, the Council did not decline to determine it. In response to my enquiries, it said this was because:
• The applicant had not exercised their rights of appeal on the previous decisions and no longer had a right to appeal.
• This was not a case of the applicant submitting multiple applications concurrently or in a very short space of time in an attempt to ‘overwhelm’ the planning system.
• The legislative power deprives an applicant of an otherwise statutory right to submit a planning application. Therefore, not exercising this power was reasonable in the circumstances.
21. It therefore validated the application and notified Mrs D on 29 June 2020; she had until 20 July to object. The Council had until 7 August to determine the application.
22. Mrs D objected to the application on the following grounds:
• Overdevelopment and loss of light
• Encroachment and drainage issues
• Impact on the amenity of adjoining premises
• Already made an objection to the previous application.
23. On 9 July 2020 Mrs D hand delivered her objection letter to the Council’s office. As the building was closed due to COVID-19 restrictions, Mrs D says a security officer put the letter into the mailbox and advised her it was emptied twice a day.
24. Mrs D says she then left two voicemail messages – on 19 and 20 July – on the planning officer’s phone, saying she had objected to the application but nobody replied to her.
25. Once the consultation period had ended, as the Council had received no objections, it was unable to refuse the application as no prior approval was required. It therefore issued a decision notice on 30 July permitting the development.
26. Mrs D made a formal complaint on 7 August that her objections had not been considered.
27. The Council replied on 14 August. It said the planning department had no record of receiving Mrs D’s objection letter. The Council had searched the post room and planning department but it could not be found. It apologised but it was not possible to now withdraw the planning decision.
28. Mrs D remained dissatisfied and complained again on 17 August. She said there had been a personal data breach and her voicemails had been ignored.
29. The Council’s final response was sent on 7 September 2020. The Council accepted that Mrs D had delivered the objection letter, but as the planning department had not received it the Council had been unable to refuse the planning application, nor was it possible to withdraw the decision. The Council said it had no record of Mrs D’s voicemails. The Council apologised and would consider whether any procedural changes for post were needed.
30. Mrs D remained dissatisfied. She said the extension was “massive”, would be less than 12 inches away from her kitchen window and would seriously impact on her amenity. She said the situation was impacting her health and causing significant stress and anxiety. She was also distressed that her personal data had been lost.
31. The Council offered Mrs D a payment of £1,350 for the impact on her amenity plus £150 for distress. It later increased this to £1,800 plus £200. Mrs D remained dissatisfied and complained to the Ombudsman.
32. In response to my enquiries, the Council said it had not reported the data breach to the ICO. This was because the personal identifying data had been lost internally and was thought to be within the Council’s building. As council officers were bound by a general duty of confidentiality, and have had data protection training, the Council considered it unlikely the data breach would result in a high data privacy risk to Mrs D’s rights and freedoms.

My findings

33. When it received the June 2020 application for prior approval, the Council had a power to decline to determine it as it was a repeat of two previously refused applications. It has set out its reasons for not exercising this power. This was a decision it was entitled to make. We cannot criticise a council decision made without fault and I have seen no evidence of fault in the Council’s decision to validate the application.
34. As the planning officer did not have Mrs D’s objection letter, the Council was unable to refuse the neighbour’s application due to the rules around prior approvals. Mrs D is concerned that the decision was made too soon, as the notice was issued on 30 July rather than 7 August. This is not fault as the Council waited until after the end of the consultation period and it was not required to issue the notice on 7 August. I therefore do not find fault in the planning decision.
35. However, the Council has accepted it lost Mrs D’s objection letter, which is fault. This has caused Mrs D injustice as it meant her objection could not be considered. Having looked at the two previous applications, my view is that on the balance of probabilities the application would have been refused if the Council had not lost Mrs D’s objection letter. The Council has also accepted this, as it has already offered Mrs D a payment to acknowledge that Mrs D’s neighbour now has a valid planning permission which cannot now be withdrawn.
36. I have considered the impact of this on Mrs D if the extension is built. The extension is single storey and has no windows overlooking Mrs D’s garden, so I do not consider there is an impact on privacy. Mrs D’s garden faces towards the south, so will continue to receive some sun. Whilst outlook is a material consideration, loss of view and loss of house value are not matters that can be used to refuse a planning application.
37. However, at 6 metres the extension is 2.5 metres longer than the Council’s policy allows and it is 1.7 metres higher than a usual 2 metre fence. I therefore consider it would cause overshadowing. I can see no physical way this can be mitigated.
38. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the impact. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might.
39. The Ombudsman’s guidance on remedies says if mitigation of the effects of a flawed decision is not possible, and it is clear that if there had been no fault the planning application would not have been approved, we may recommend a financial payment to remedy any loss of amenity. This is likely to be up to £5,000, depending on the severity of the loss.
40. Taking all this into account, my view is the Council should pay Mrs D £2,500 to remedy the adverse impact on her amenity.
41. The fault has also caused Mrs D distress. Our guidance recommends payments to remedy distress of between £100 and £300. The Council’s offer of £200 is in line with this.
42. Mrs D is concerned about the data breach. As I have said above, we normally expect people to refer complaints about data breaches to the ICO, which is better placed to deal with them and can take enforcement action against the organisation if necessary. However, the ICO cannot remedy any injustice caused to a complainant. I have therefore exercised my discretion to consider this issue.
43. The Council has explained that it did not report the loss of personal data to the ICO as it did not consider there was a high data privacy risk to Mrs D’s rights and freedoms. This is a decision it is entitled to make and there is no fault by the Council in not reporting the matter to the ICO. However, there was fault in it losing the letter. Whilst I can see that Mrs D has been caused anxiety about the loss of her data, I agree with the Council that the risk to her privacy is low. In addition, her objection letter (with personal details removed) would likely have been published online. My view is the Council should pay Mrs D an additional £100 to acknowledge the distress the data loss has cause her.

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Agreed action

44. The Council has agreed:
• to pay Mrs D £300 to acknowledge the distress caused within a month of my final decision; and
• if the neighbour’s extension is built, to pay her a further £2,500 to acknowledge the adverse impact on her amenity caused by fault.

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Final decision

45. 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