Summary: Ms C complained the Council failed to consider properly a planning application for a rear extension including a roof terrace at a neighbouring property. Ms C said she will suffer from encroachment to her living space and a loss of privacy and light. We have found evidence of fault by the Council in its complaint handling but consider the agreed actions of an apology and further explanation are enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains the Council failed to consider properly a planning application for a rear extension including a roof terrace at a neighbouring property. In particular, Ms C says the case officer did not respond to emails or visit her property and the decision is inconsistent with other nearby planning permissions.
2. Ms C says because of the Council’s fault, she will suffer from encroachment to her living space and a loss of privacy and light. Ms C also says the Council’s inconsistent approach has encouraged another neighbour not to comply with the restriction on the width of their terrace.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
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)

Back to top

How I considered this complaint

6. I read the papers provided by Ms C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Ms C. I have explained my draft decision to Ms C and the Council and considered the comments received before reaching my final decision.

Back to top

What I found

Background

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
9. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining 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.

Key events

12. The Council received a planning application for the demolition of a rear extension and its replacement with a new full-width extension incorporating a roof terrace area.
13. Ms C made two representations to the Council objecting to the proposals. Ms C’s first objection set out that she lived in the lower ground floor flat and the creation of a roof terrace and staircase to the garden from the first floor would cause overlooking and a loss of privacy. Ms C highlighted the Council had required a six foot restricted use when granting planning permission for another nearby roof terrace to minimise overlooking to her property. Ms C also stated she wanted to preserve light to her property and minimise disruption. Ms C’s second objection related to increasingly heavy rain leading to flooding and concern the proposed hard landscaping would increase the risk of flooding. Ms C has explained there had been previous flash flooding.
14. The case officer visited the application site and accessed the rear garden area. The Council has provided a copy of the photographs from this site visit. These show the rear of the application site property and the existing roof terrace arrangement at one of the neighbouring properties.
15. Ms C asked the case officer to visit her to better understand the impact of the proposals on her property. However, the case officer was satisfied they had seen the relationship between Ms C’s property and the application property from both the application property and the gardens to the rear and had enough information and did not need to make a further visit to Ms C’s flat. Ms C considers the Council did not take an even handed approach as she says the case officer visited the applicant’s property.
16. Site visits can form an important part of the planning process as they allow officers the opportunity to visualise how a development might impact on the surrounding area. However, there is no legal requirement for a site visit to be completed. It was not fault for the Council to decide a further visit to assess the application from Ms C’s property was not necessary. Councils receive a large volume of planning applications and there is no expectation that officers will respond to individual representations during the planning process. Their role is to consider any representations received and provide an assessment of the material planning considerations.
17. The Council raised concerns with the applicant’s agent about the proposals in relation to both overlooking to adjacent properties and drainage. The Council made clear that amendments would be needed to the proposals to address these concerns. The applicant’s agent provided revised plans to address the Council’s concerns. These included omitting the rear stairs next to the boundary with Ms C’s property and a reduced terraced area with planters on both sides.
18. The case officer’s delegated report sets out the material planning considerations and a summary of the representations received including Ms C’s concerns. The report noted the key issues of preserving the character and appearance of the property, Conservation Area and historic gardens and safeguarding the amenity of neighbouring properties with particular reference to overlooking, sunlight and daylight and sense of enclosure. The case officer also noted the proposals had been reviewed by the Council's Flood and Drainage Officer and were considered acceptable subject to condition. The report refers directly to the properties neighbouring the application site which includes Ms C’s property.
19. The case officer’s report acknowledged the proposals would result in marginal increased levels of a sense of enclosure and impact on light conditions for adjoining properties but noted the new addition would be set at lower ground floor level and would only marginally raise above the level of existing boundary treatments at both sides and would be built as a replacement to an existing rear structure of similar height and projection but which was only marginally set away from both boundaries. The case officer considered the proposed replacement structure would have an acceptable impact in terms of sense of enclosure and sunlight and daylight compared to existing conditions and was acceptable. The case officer also noted the principle of a raised ground floor level rear roof terrace area was already established within the terraced properties and the dimensions of the proposed roof terrace had been reduced in size and the resulting terrace area which would be located only marginally above garden level and so would have an acceptable impact on neighbouring amenity in terms of noise and disturbance levels. The case officer also considered the issue of overlooking and accepted the proposed terrace would lead to a marginal increase to views across adjacent gardens and also possibly back into the main residential buildings including to Ms C’s property and to the existing rear projecting balcony at another property. The case officer noted the revised design had omitted the side stairs and the new terrace had been reduced in size and set away from both boundary lines and would only allow oblique views of the main rear parts of adjacent buildings and was considered acceptable. The case officer noted the existing rear raised terrace at another property would suffer a degree of overlooking but this would amount to mutual overlooking between properties as the users of the existing terrace already enjoyed views of the application site. The case officer also noted the existing terrace had been subject to a condition seeking the insertion of a section of raised screen aimed at overcoming overlooking as experienced by the occupiers of the application premises which had not been implemented.
20. The Council’s assessment of the application was that there would not be a significant enough detrimental impact from the proposals on levels of amenity enjoyed by neighbouring properties including Ms C’s that would justify refusal. The Council granted planning permission subject to conditions. These included that the east and west sides of the roof area of the new rear lower ground floor level extension were not to be used at any time as a terrace or external amenity space. This was to avoid overlooking and disturbance to neighbouring properties.
21. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
22. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so. I have seen no evidence of fault in the way the Council reached its decision to grant planning permission for the development.
23. Ms C complained to the Council towards the end of February 2020 about the handling of the application. The Council responded at the first stage of its complaint procedure in mid-March and apologised for the delay which had been caused by the complaint being misdirected internally. This response responded to Ms C’s concerns about communication with the case officer and an apparent inconsistency in the treatment of her residential amenity compared to her neighbour. The Council explained how it had reached the view the amended proposals were acceptable and apologised that its service had not met the standard it sought to offer in terms of communication.
24. Ms C contacted the Council on 23 March concerned about the loss of privacy and intrusion from light fixtures possibly situated within the restricted area. The Council responded the same day to say it would investigate her concerns with the case officer and revert further. Ms C contacted the Council on 27 March to add that another application at another nearby property also had a 2 metre restriction with Victorian railings rather than planters to highlight the inconsistency in the treatment of her neighbour’s application. Ms C chased a response to these issues on 7 April. The Council replied to Ms C the same day but did not respond about her specific concerns about the impact on her residential amenity or inconsistency of approach with a specific application. Ms C reminded the Council of the outstanding information the same day. The Council apologised and confirmed it would reply further. Ms C contacted the Council on 27 April to escalate her complaint as she had still not received a reply to her specific concerns. The Council’s Stage 2 response of 19 May suggested it was not aware of any points that had not been addressed. However, the Council’s correspondence as set out above did not appear to address Ms C’s concerns about light intrusion and inconsistent treatment when compared with a specific nearby roof terrace application. Whilst this would appear to be an oversight on the Council’s part, I consider there was some fault in the handling of Ms C’s complaint and the Council should provide an apology and appropriate response.

Back to top

Agreed action

25. The Council should write to Ms C to apologise for not addressing her specific concerns about the intrusion from light fixtures and inconsistency of approach with a specific application and provide an appropriate response to these issues within one month of my final decision.

Back to top

Final decision

26. I have completed my investigation as I have found fault by the Council but consider the agreed action above is enough to provide a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman