Summary: We will not investigate Mr and Mrs X’s complaint about the Council’s consideration of and decision on their neighbour Mr A’s planning application for a rear extension. There is not enough evidence of fault by the Council which would have affected the planning outcome to warrant an investigation. We will not investigate Mr and Mrs X’s complaint about delay in the Council’s internal complaint handling because we would not do so in isolation from the core issue which gave rise to the complaint.

The complaint

1. Mr and Mrs X live next door to a neighbour, Mr A, who has sought planning permissions from the Council for a rear extension.
2. Mr and Mrs X complained that:
1. when dealing with Mr A’s 2020 planning application, the Council failed to take account of the overbearing and overshadowing impact of the proposed development on their house and garden;
2. delayed in dealing with their complaints.
3. Mr and Mrs X say the development will have an adverse impact on the amenity of their house and garden. They say the extension will overshadow a habitable room window and their garden patio space, affecting their quality of life.

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The Ombudsman’s role and powers

4. 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)

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr and Mrs X, including relevant planning documents;
• issued a draft decision, inviting Mr and Mrs X to reply.

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What I found

6. In 2019, Mr A applied for a three-storey extension, which the Council refused. The reason for refusal was that the proposed development would have an unacceptable overshadowing impact on Mr and Mrs X’s exterior space. Mr A applied for a lower two‑storey extension in 2020 on the same footprint, which the Council granted with conditions.
7. Officers assessed the 2020 application with its reduced height extension and considered Mr and Mrs X’s property’s amenity. Officers noted the extension would have an impact on Mr and Mrs X’s property. They took the view that overlooking, overbearing or overshadowing to Mr and Mrs X’s property was not so significant that they could recommend refusal of the permission.
8. Between the 2019 and 2020 applications, the Council used different descriptions of the room in Mr and Mrs X’s property which is served by the window closest to and most affected by the extension. In the 2019 officer report, the Council described the room as a ‘primary habitable room’. In the 2020 report, the officer described it as a ’non‑primary habitable room’. The Council has acknowledged and apologised for this error, but says it had no bearing on the 2020 planning decision because the 2019 refusal was based on the development’s impact on the external space of Mr and Mrs X’s property, not the internal space served by the window.
9. Mr and Mrs X say a further fault in the Council’s consideration of the 2020 application was they granted it permission despite it failing the ’45-degree angle’ test. There are two such tests: one in the horizontal plane and one in the vertical. The horizontal test assesses whether a proposed new development would interrupt a line drawn out at 45 degrees from the centre of an existing property’s window. The vertical test determines whether the development would cast a shadow over more than half of an existing window, using a line drawn at 45 degrees from the centre point of the development’s roof.
10. The officer’s planning report notes the 2020 extension, as with the 2019 design, would breach the horizontal test by a small margin. But officers determined for both applications that the impact this caused on Mr and Mrs X’s house would not be sufficient to warrant a refusal. That is a decision officers were entitled to make. The 45-degree test is not a rule, but guidance. Where a proposed application diverges from the test, officers should explain why, despite the breach, the development should be permitted. This is what officers did here.
11. The Council does not use the vertical version of the 45-degree test when assessing planning applications. The test is guidance and councils are entitled to decide which tests to use. There is no duty on a council to use this particular test when making planning decisions.
12. In any event, the 2019 refusal was not based on the impact of the proposed development on Mr and Mrs X’s window and the room it serves. So this could not have formed a refusal reason in 2020 for a lower development on the same footprint as the 2019 application. I recognise the impact of the development on the window and room was a key issue for Mr and Mrs X. But it was not one for the planning process during the 2020 application. The single reason for refusal in 2019 was the impact on Mr and Mrs X’s external space. This meant the sole aim of the 2020 application, with its lower extension design on the same footprint, was to overcome that single refusal reason.
13. I have not seen enough evidence to show that, but for the error of the description of the complainants’ room and the outcome of the 45-degree test, the Council would have made a different decision on the 2020 application. I currently do not consider there are grounds for us to investigate.
14. The Council’s decision was the 2020 application reduced the impact on neighbour amenity sufficiently to be granted permission. The proposal was considered to be just on the side of acceptable, and not sufficiently harmful for officers to refuse it. I do not consider we could say the Council’s professional judgement decision was based on a process so flawed that a different planning outcome should have been reached. So we will not investigate the complaint.
15. Mr and Mrs X say the Council delayed in dealing with their complaint. We will not investigate councils’ complaint handling where we do not investigate the core issue giving rise to the complaint. We do not consider it an effective use of our resources to do so. This limitation applies here so we will not investigate this part of the complaint.
16. I understand Mr A has recently made another planning application for the same site which the Council is yet to decide. We cannot consider this ongoing planning matter now, as part of this complaint. Any future complaint about the Council’s handling of it would be a new and separate matter, because these would be new actions and decisions, which have yet to be included in a complaint to the Council.

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Final decision

17. We will not investigate this complaint. This is because:
• there is not enough evidence of fault by the Council which would have affected the outcome of the 2020 application to warrant an Ombudsman investigation;
• we will not investigate the Council’s internal complaint handling because we would not do so in isolation from the core complaint issue.

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Investigator's decision on behalf of the Ombudsman