Summary: Mr P and Ms X complained about the Council’s decision to approve their neighbour’s planning application. While there were several errors within the case officer’s report, they did not affect the decision to grant planning permission. For this reason, this fault did not cause a significant injustice to the complainants.

The complaint

1. Mr P and Ms X (whom I shall refer to as “the Complainants”) complain about the Council’s decision to approve their neighbour’s planning application. They say the case officer’s report contained many inaccuracies and she had not applied the relevant planning policies correctly.
2. The Complainants say the development is overbearing and will affect their amenity. They want the Council to revoke the planning permission.

Back to top

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)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I have also considered the relevant aw and planning guidance.
6. The Complainants and the Council had an opportunity to comment on a draft version of this decision. Comments received were taken into consideration before making a final decision.

Back to top

What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
8. Planning considerations include things like:

• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.

9. Planning considerations do not include things like:

• views from a property;
• the impact of development on property value; and
• private rights and interests in land.

10. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
11. 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 policy along with other material planning considerations.
12. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
13. Planning case officers usually write reports with their summary of the main planning issues and recommendations. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
14. However, the courts have made it clear that:

• case officer reports do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• case officer reports do not need to include every possible planning consideration, but just the principle controversial issues.

15. The Council’s relevant local plan and supplementary guidance say, amongst other things:

• Extensions that create an unacceptable sense of enclosure or appear overbearing when seen from neighboring rooms will not be permitted.
• Single storey extensions should not extend more than 3.5 metres from the rear of a property.
• However, the final test of acceptability will depend on the particular circumstances on the site which may justify greater rear projection, including height adjacent to the boundary.
• In the case of Victorian infill extensions, where the depth exceeds 3.5 metres, the eaves height should be reduced to 2.2 metres to mitigate the sense of enclosure.
• Trees within a conservation area are protected.

16. Many local authorities use the “45-degree test” to assess the impact of a new development on daylight to neighboring properties. However, this is not a standard test set out in law.

What happened

17. In 2019, the Complainants’ neighbour (the Applicant) submitted a planning application for a single-storey rear extension to their property. In January 2020, the Council refused planning permission because it was considered to be overbearing, unneighbourly and visually intrusive. There were also concerns about the impact on trees in the vicinity of the development.
18. The Applicant submitted a revised application. The proposed extension was altered and a tree survey was submitted with the application.
19. The Complainants submitted detailed written objections to the application. These included errors they had identified in the application documents.
20. A planning officer (the Case Officer) wrote a report with a recommendation that the development should be approved. The report considered the Complainant’s objections. It stated that:

• the side portion of the extension was 2.6 metres high and 3 metres long and 1.2 metres from the boundary with the Complainants.
• The previous application was refused on grounds of adverse impact on the residential amenity of the Complainants’ property, in particular the proposed scheme would achieve a greater setback, lower overall height close to the boundary and a staggered side elevation to mitigate the visual/overbearing appearance.
• The side window was set back 1.8m from the side boundary.
• The development complied with the vertical 45 degree test, but failed the horizontal test. A pass against one test was a pass overall. As such, demonstrable harm to daylight and sunlight could not be evidenced or form a reason for refusal.
• The proposed extension was broadly similar in height to the existing. The additional impact on neighbour amenity arose from the additional length and side projection. The latter had a reduced height and was not considered to be materially harmful.
• While the impact of the additional size was recognised, given the separation distance, the scheme was considered tolerable.
• The Applicant’s tree report had been considered by the Council’s Arboricultural Officer and deemed acceptable.

21. In August 2020, the application was approved by the Council under its delegated powers.

The complaint and the Council’s response

22. The Complainants complained to the Council about several errors within the application documents and Case Officer’s report. They provided a detailed explanation and analysis about why the application was incorrectly approved. For the purposes of this decision statement, it has been necessary to summarise both their concerns and the Council’s responses.
23. At stage two of the Council’s complaint procedure, the Council accepted there were some errors in the Case Officer’s report and application documents that had not been corrected. Some errors had not been acknowledged in the stage one response. But the Council said they did not affect the decision to grant planning permission. So, while their complaint was partially upheld, the Complainants remained dissatisfied with the outcome and brought their complaint to the Ombudsman.

Incorrect placement of “North” on the application plans

24. The Complainants say this error impacted on the Council’s assessment of day/sunlight. The Council accepted it was not “entirely accurate” but was “not so misleading as to cause any errors or confusion in assessment of the development or to render the permission invalid”.

The side extension – incorrect measurements and position of window on plans

25. The Council agreed with the Complainants’ observation that one plan had the side extension drawn as it being 3 metres, but annotated (correctly) as 1.8 metres. It accepted this led to an incorrect reference in the Case Officer’s report. The Complainants say this mistake arose from “copy and pasting” the plans for the previous (refused) application. They expressed their concern about the ambiguity as to what had actually been approved. At stage two, the Council agreed this was a mistake and caused “unnecessary confusion” but explained that no material harm arose because it was correctly annotated on other plans. The complainants dispute this. The Council also accepted there were discrepancies within the submitted plans about windows.
26. The Complainants say the Council was incorrect in its interpretation of local planning policy to justify the size of the extension. The policy states that where an extension extends further than 3.5 metres (as was the case here), eaves height should be reduced to 2.2 metres. As the eaves height of the side elevation was 2.6 metres, the Case Officer decided the separation distance between the extension and the Complainants’ property would negate any loss of privacy or overlooking. The Complainants objected to this because the case officer endorsed a height that was contrary to the policy, by relying on factors that were not relevant to the length/height specifications in the policy. They also objected on the basis the main part of the extension was over 3 metres high.

Fenestration description errors

27. The Council agreed with the Complainants’ assessment that the plans included incorrect descriptions of the fenestration for the both the proposed development and existing building. One document specified black metal windows and doors and others specified they would be timber painted. The application form and Heritage Statement both referred to all windows and doors currently being timber painted. Furthermore, a condition of planning permission was for the “materials to match the existing”. The Complainants highlighted the anomaly created by this because the existing fenestration was UPVC. The Complainants said this was a serious fault in the permission that effectively gave choice to the Applicant that should not have been. They argued this fault was further compounded by the Council’s failure to rectify this error when highlighted by the Complainants in their objection letter.
28. The Council disagreed with this view saying it would have approved the use of metal, timber or UPVC. The Complainants say this is incorrect because UPVC was neither specified in the application or named in the supporting documents.

Incorrect assessment of sun/daylight

29. The Complainants say the first application was refused as a result of the Case Officer’s observations made during a site visit to her property. They say she witnessed first-hand the poor levels of light, even prior to the extension being built.
30. The Complainants say the Council has failed to comply with its policy and the 45 degree rule. The policy requires “good standards of day/sunlight” (emphasis added) but the Case Officer paraphrased the requirements of the policy by using the word “adequate" instead of “good”. Furthermore, the Case Officer then described the resultant impact on the Complainants’ property as being “tolerable”. They argue this subjective assessment, that referenced the wrong standard of acceptability, and in their view, invalidated the permission.
31. The Case Officer’s report acknowledged the proposed development met the vertical 45 degree rule, but failed the horizontal test. She explained, “a pass against one of the 45 degree measurements is a pass overall”. The Complainants disagree with this “misuse of the rule” and say the Council misdirected itself on this issue. They also contend the case officer failed to take account of lack of sunlight to amenity areas and its orientation, compounded by the error in the placement of “North”.

Failure to take into consideration the internal layout of the Complainants’ property

32. The Complainants say the Council failed to take into consideration the internal layout of their property, in particular, the fact their affected lounge window is the only source of natural light. They say this was specifically referenced in the earlier (refused) application and was a significant factor in its refusal.

Failure to properly consider impact on trees

33. Potential impact on trees was one reason why the first application was refused. To address this, the Applicant obtained an Arborist’s statement. The Complainants say the Council should not have relied upon this because it was based on incorrect assumptions (such as foundations are only as wide as walls) and may have an adverse impact on the tree in their garden. They say the Council’s complaint response failed to address this issue.
34. The Council explained to the Complainants that the report was reviewed by its Arboricultural Officer who had access to all relevant supporting documents, and he had no reason to object to the development.

The complaint to the Ombudsman

35. In their complaint to the Ombudsman, the Complainants also raised their dissatisfaction with the way the Council considered their complaint. They describe the stage one response as being “a blatant attempt to cover up a huge catalogue of errors of both fact, law and content”. They say the stage two response, while accepting many of the factual discrepancies highlighted by them, was wrong to maintain the position that the Council had properly considered their amenity when the permission was fundamentally flawed in so many areas.

The variation

36. In February 2021, the Council granted permission for a variation of the approved permission. This variation sought to remove the side extension and reduce the length of the extension. The Complainants are unhappy the Council failed to address/correct any of the inaccuracies and incorrect assumptions they had highlighted in their complaint. They argue that the variation, like the decision before, should be revoked.

Analysis

37. Every planning decision is made on its own facts. The variable factors in each case are such that hard and fast rules are impossible to formulate. Therefore, the Ombudsman cannot find fault with a decision which, to a complainant, are seemingly contrary to policy and guidance providing the planning report considers the relevant factors and reaches a clear, reasoned and justifiable decision as to why permission should be granted.
38. My role is to determine whether there has been administrative fault in the way the decision was made. I have therefore considered how the Council dealt with the Complainants’ six main objections.

Incorrect placement of “North” on the application plans

39. The Council has accepted a mistake was made and the application plans should have been corrected by the case officer. I agree with its conclusion that this did not impact on the outcome of the decision. The case officer had visited the site and was aware of the positioning of the development. The error did not impact on her judgement and assessment of sunlight and daylight.

Incorrect annotations (windows and measurements) of the side extension

40. The Council has accepted some of the plans were incorrectly drawn to the wrong scale. I agree with the Complainants’ speculation as to why this occurred. I also agree these errors should have been identified by the case officer. The fact they were not led to the mistake in her report. This was fault. I welcome the fact the Council has accepted this and taken steps to remind staff of the need to carefully scrutinise application documents.
41. But I also agree with the Council that these errors did not invalidate the decision. I am satisfied that the Case Officer, from her initial site visit and overall description of the development, properly understood its scale when she made her recommendation to approve it. The drawings show the accurate measurements. For the reasons explained in paragraph 19 above, a case officer’s report does not need to be perfect so long as the issues are properly understood. I am satisfied they were in this case so there was no significant injustice to the Complainants as a result of this error.
42. The Council also accepted there was confusion around the existence of a side facing window. In its stage two response it confirmed the planning consent did not include the window. The significance of this window to the Complainants’ amenity is clear and their frustration cause by this mistake is understandable. But the Council has already clarified the issue and so there is nothing further the Ombudsman could add here.
43. I have also considered the Complainants’ concern that the Council failed to take account of the requirement of policy to reduce the height to 2.2 metres where the length is beyond 3.5 metres. While I can follow the logic of this analysis, it does not take into consideration the overall test of acceptability (height being only one factor) also within the policy that was applied by the Case Officer. Because of this, I do not consider she was at fault in how she applied local planning policies to the proposed development.

Fenestration description errors

44. As above, I agree with the Council’s view that whilst there were errors, they did not invalidate the decision to approve the application.

Incorrect assessment of sun/daylight

45. Councils will not refuse planning permission for a development just because it affects a neighbouring property, in terms of daylight and sunlight. It must consider whether this impact will be unacceptable.
46. I am satisfied the Case Officer considered how the extension would impact on the light reaching the Complainants’ living area. She applied the 45-degree test and accepted it failed on the horizontal test. But she explained this was not, by itself, a justification for refusal. She then went on to consider the wider context. This was the correct approach.
47. Nor do I find fault with her use of the words “tolerable” and “adequate”, instead of “good” when assessing the impact of the development against the local policy.
48. The Complainants say the Case Officer made an incorrect subjective assessment and effectively applied a lower standard as to what was acceptable. In response to my enquiries the Council has explained the use of the word “tolerable” was made in the context of the potential visual intrusion. I do not agree this imposed a lower standard that required by the policy in this context. It was a subjective assessment, but this is what a case officer is required to do.
49. In her report, the Case Officer paraphrased the requirements of the policy as being to ensure “adequate light is achieved”. In her report this is set out in italics and, as such, it is reasonable for the reader to assume this was a direct quote from the policy. It was not. The policy sets out the requirement for “good standards of daylight and sunlight”. I also agree with the Complainants that adequate is not the same as good. It implies a lower standard of light is required. This was incorrect and has led to understandable frustration as to whether the Case Officer applied the correct test. This was fault.
50. But I do not consider this fault has caused an injustice to the Complainants. This is because, on balance I consider the Council’s decision to approve the application would have been the same. This is because, looking at the wider context of the decision, I am satisfied the Case Officer properly understood the impact of the development on the Complainants’ property from her own assessment at her site visit and consideration of the application documentation.
51. To avoid unnecessary uncertainly in future, the Council should remind case officers of the importance of avoiding such ambiguity particularly where a direct quotation is implied by the use of italics.

Failure to take into consideration the internal layout of the Complainants’ property

52. The Case Officer had visited the Complainant’s home during the first, unsuccessful application. She was therefore aware of the internal layout. She knew that the only window in the living room was affected by the extension because she mentioned it in her earlier report. While this specific observation was not referred to in her report, it did not have to. The law does not require reports to explicitly cover every factor in the decision. I do not find fault.

Failure to properly consider impact on trees

53. I do not agree with the Complainant’s view about how this matter was considered.
54. The Council’s Arboricultural Officer reviewed the development and agreed with the conclusion reached within the Applicant’s own report and impact assessment. The Case Officer was entitled to rely in this. There was no fault.

Complaint handing

55. While the stage one response was less detailed than the second, I do not consider this meant it was affected by fault. While the second response, accepted there had been some factual errors in the Case Officer’s report, that had not been addressed in the first response, they did not impact on decision to grant planning permission. I do not find fault in the way the Council responded to the complaint.

Conclusion

56. The Council has accepted there were several errors within the Case Officer’s report. Taken individually they were not so significant as to affect the outcome. But I must consider whether, when looked at collectively, they could have done. I have decided they did not. While I understand the Complainants’ frustration at the number of individual mistakes, I am satisfied the Case Officer properly understood the impact of the development on their amenity but decided it was acceptable in planning terms. The Complainants have been clear the outcome they wanted to achieve was a revocation of the planning consent. So while I have found some fault, this did not cause a significant injustice to them because the outcome would have been the same, had these faults not occurred.

Back to top

Final decision

57. There was fault in the way it considered a planning application, but this did not cause an injustice to Mr P and Ms X.

Back to top

Investigator's decision on behalf of the Ombudsman