Summary: Mr X complained the Council did not consider the impact a neighbour’s proposed extension would have on nearby houses when it decided the application did not need prior approval. The Ombudsman found the Council was at fault for failing to consult neighbours before making its decision. However, that fault did not affect the outcome, and the Council’s apology is sufficient remedy.

The complaint

1. Mr X complained the Council decided a neighbour’s proposed large house extension did not need prior approval without considering the impact it would have on neighbouring properties.
2. He said the Council did not consider his or his neighbours’ objections before making its decision.
3. Mr X believes the extension will block light to his home and increase the risk of water entering his garage.

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The Ombudsman’s role and powers

4. 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)
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 the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).
• The Building Regulations 2010.
7. I have written to Mr X 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

8. When considering complaints about planning applications, we look for evidence the Council followed a proper process before making its decision.
9. In deciding an application, councils must consider what people say about the proposals, but they do not have to agree with them.
10. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.
11. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made. We cannot question the merits of the Council’s decision or offer any opinion on whether we agree with the judgment of the Council’s officers.

Permitted development

12. Permitted development rights are a national grant of planning permission which allows householders to extend their home without making a planning application to the local planning authority (LPA).
13. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) sets out the different types of permitted development as well as the conditions and limitations which apply.
14. Single storey rear extensions must not extend beyond the rear wall of the original house by more than four metres for a detached house, or three metres for any other house.
15. Single storey rear extensions cannot exceed four metres in height. If the extension is within two metres of the boundary the height of the eaves cannot exceed three metres.

Prior notification

16. Prior notification (also known as prior approval) applies where a development is, in principle, permitted development, but the LPA has to approve certain elements of the work.
17. In May 2013 the government introduced a scheme allowing householders whose homes had permitted development rights to build larger, single storey rear extensions using the prior notification process.
18. In May 2019 the government introduced legislation to make the scheme permanent.
19. The scheme allows increases from six to eight metres for detached houses and bungalows; and from three to six meters for terraced and semi-detached homes.
20. The householder must tell the LPA about their plans and give the addresses of any adjoining neighbours. The LPA will then tell the neighbours and must give them at least 21 days to comment.
21. Neighbours may object but only if it will harm their amenity, in which case the LPA must decide if the impact is acceptable.
22. The LPA has 42 days from receiving the application to notify the developer of its decision. If this deadline is missed, the proposal becomes permitted development.

Building Regulations

23. Most building work will need Building Regulations approval. The Building Regulations 2010 (the Regulations) set standards for the design and construction of buildings.
24. Building Regulations approval can be confirmed by either a council building control inspector, or a private sector approved inspector.
25. Homeowners building an extension or altering their home will need to consider the impact the work may have on drainage and how the work will comply with the Regulations.

What happened

26. I have summarised below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
27. Mr X’s neighbour (the applicant) planned to build a single storey extension to the rear of their home. They proposed the extension would be 6 metres beyond their original rear wall, with a height of 2.95 metres.
28. The applicant asked the Council whether they needed prior approval for their plans on 28 May 2020. The applicant gave the Council details of six potentially affected neighbours.
29. The Council registered the application on 29 May and wrote to the applicant on 17 June confirming its decision was due by 9 July.
30. The applicant sent two consent forms to the Council on 8 July, signed by their two next-door neighbours, confirming they did not object to the applicant’s plans.
31. The case officer who considered the application decided the plans complied with the requirements of the Town and Country Planning Order 2015. They also confirmed neighbours on either side of the applicant were notified and had no objections. Prior approval was therefore not required.
32. The Council confirmed its decision to the applicant on 9 July. This was subject to conditions about the materials used and the timescale for the applicant to complete the work.
33. The Council sent notification letters to the applicant’s neighbours, including Mr X, on 10 July. The letters said neighbours had until 31 July to comment.
34. Mr X sent objections to the Council on 17 July. He said the applicant’s home is a semi-detached bungalow and the extension will be 6 metres, which is about two thirds the width of his larger bungalow. He said the height of the extension is 2.95 metres, which is above the top of his guttering and will block light. He said the applicant’s garden will hold less water because of the extension, causing water to enter his garage. He also said his neighbours at the back and sides of the applicant will be far more adversely affected.
35. One of the applicant’s next-door neighbours wrote to the Council on 23 July. They said after reviewing the Council’s notification letter and the applicant’s plans they wished to object based on the size of the extension and how close it will be to the boundary. They said it will restrict light to their conservatory and rear garden. The neighbour said they wanted to retract their earlier consent form and they criticised the Council for not following the correct notification procedure.
36. Mr X complained to the Council on 25 September 2020 about its lack of consideration for the impact of the development on neighbours.
37. The Council replied on 19 October. It said the process for considering larger extensions to homes is set out in the Town and Country Planning (General Permitted Development) Order 2015. The Council said it can only consider matters specified under that Order.
38. The Council wrote to Mr X again with its stage one complaint findings. It said:
• The applicant sought prior approval for a larger home extension under the Town and Country Planning (General Permitted Development) Order 2015, schedule 2, part 1, class A.
• A condition of the process is the Council must notify adjoining homes and give them 21 days to make representations.
• Although the Council did tell Mr X and neighbours, it did not give them 21 days to respond. That was a procedural error the Council apologised for. It said it sought to improve its process, so this does not happen again.
• While it did not follow the correct process, the applicant has permission to proceed with the development.
39. Mr X was not happy with the Council’s response. On 26 October, he asked the Council to explain what consideration it gave the application before granting planning permission. In particular he asked about impact on neighbouring amenity and risk of water entering neighbouring garages.
40. The Council sent its stage two complaint response on 16 December. It repeated what it told Mr X in its stage one response and said that response was correct.
41. On drainage issues, the Council said it could not consider this under the prior approval process.
42. The Council sent Mr X a final response on 30 December. It said:
• It cannot respond to each letter of objection received and has no legal duty to do so. The neighbour most affected spoke with the case officer about their objections.
• The applicant asked for prior approval for a larger home extension. That is different from a planning application as it is ‘permitted development’ subject to some conditions.
• One condition is for the Council to tell adjoining neighbours and consider any objections raised within a 21-day notice period.
• Although it told neighbours it did not give them 21 days to respond. That was a procedural error and meant it did not consider the objections received.
• Drainage is not an issue the Council can consider under the prior approval process.
• The applicant discussed the objections with neighbours and the case officer and has filed a new application with plans for an amended scheme.
43. Mr X brought his complaint to the Ombudsman after receiving the Council’s final reply. He asked for an independent judgement on whether the Council was fair and reasonable in its decision and replies.

Response to my enquiries

44. The Council told me:
• Its process at the time involved officers printing notification letters, which they sent to a corporate post room to be sent out.
• Officers were working from home due to COVID-19 restrictions and could not all print letters successfully.
• Officers would need to ask support officers to print the letters for them if that was the case.
• It had no automatic process in place at the time to tell officers so they may not know if their letters had not printed.
• It has now set up an error trap which tells officers when letters have not printed.
• Its error meant it did not consider the impact of the proposal on neighbouring properties. It recognised this caused distress to neighbours.
• It considers the development does not affect the level of amenity to Mr X’s home. It also said the issues Mr X raised about drainage and water entering his garage are not ones the Council can consider under the prior notification process.
• It did recognise Mr X raised some valid points about the possible impact on a next-door neighbour.
• It would have needed to assess the impact on the neighbour’s window closest to the boundary and whether it served a main habitable room. It would also have considered whether the extension had any enclosing or overbearing impact on that neighbour’s garden.
• It was difficult to say whether it would have refused prior approval without doing a site assessment.

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Analysis

45. Based on the requirements of permitted development and prior approval rights, the Council was entitled to accept the applicant’s plans. The dimensions of the rear extension to the applicant’s home are within the allowed length and height.
46. The applicant sent signed declaration forms from both next-door neighbours to the case officer on 8 July. The case officer considered consent from the next-door neighbours was enough for the applicant not to need the Council’s prior approval for their plans.
47. The fact a neighbour later changed their mind about the plans is unfortunate and would not normally be the fault of the Council.
48. However, when the Council made its decision the case officer could not know whether the applicant gave neighbours full details of their plans, or whether they consulted other adjoining neighbours who objected. The fact a neighbour changed their mind and did object after receiving full details from the Council suggests they were not sufficiently aware before.
49. The Council has a duty to tell neighbours before a decision is taken. It did not do so here. It sent notification letters after making its decision. That was fault.
50. The Council should have given neighbours at least 21 days to comment on the plans. It accepted fault for not doing so. On the evidence seen, this was an administration error, compounded by changes to ways of working brought about by the COVID-19 pandemic.
51. The Council’s planning department was not required to consider the impact on drainage and possible water run-off into Mr X’s garage. That is a building control matter.

Injustice

52. When the Ombudsman finds fault with a council’s determination of a planning application we must consider how the error affected the outcome.
53. The Ombudsman cannot revoke planning permission. That is a matter for the Council. The applicant is an innocent third party to the Council’s fault.
54. The Council will only refuse prior approval applications if they do not meet the relevant criteria or if the impact on neighbouring amenity is unacceptable.
55. As above, the applicant’s plans comply with the relevant criteria. I have therefore considered whether there is any clear evidence of unacceptable impact on neighbours which may have altered the Council’s decision.
56. The Council considers the impact on Mr X’s amenity is acceptable and would not affect its decision. That is a view the Council is entitled to reach. It is not my role to decide what impact the plans might have.
57. I am therefore satisfied Mr X has not suffered significant injustice, in terms of impact on his amenity, because of the Council’s failure to properly consult him.
58. While the Council signalled the impact on one adjoining neighbour is unclear, as it would need a site visit to decide this, I do not consider there is enough evidence of any significant impact on neighbouring amenity.
59. I have not seen clear evidence the Council would have made a different decision if it acted without fault.
60. The Council recognised its failure to properly consult neighbours caused them distress. It has already apologised to Mr X for this error. Given that I have not seen evidence of any significant impact on Mr X’s amenity, I consider that apology to be a sufficient remedy.
61. In response to this complaint, the Council has reviewed its procedure for sending neighbour notification letters and has put in place safeguards to prevent the issue from recurring. That is in line with what the Ombudsman would recommend.

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Final decision

62. I have completed my investigation. The Council was at fault for failing to consult neighbours before making its decision. However, that fault did not affect the outcome, and the Council’s apology is sufficient remedy.

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Investigator's decision on behalf of the Ombudsman