Summary: Mrs X said the Council considered inaccurate plans that wrongly led it to believe development near her home complied with local planning policy when it did not. Mrs X said the Council’s flawed decision to grant planning permission led to an overbearing development and loss of light that adversely affected her living conditions. We found that, while there was fault by the Council, it did not affect its decision to grant planning permission. We also found avoidable delay by the Council in responding to Mrs X’s complaint about the development. The Council’s apologies and payment of £250 had suitably addressed any frustration and distress such delay caused Mrs X.

The complaint

1. Mrs X said the Council failed to consider a breach of the 45-degree rule but, after changing its mind, decided this did not affect its decision to grant planning permission for development near her home. Mrs X said the Council’s view was contrary to its planning policies. And, the development was overbearing and spoilt the street scene. Mrs X wanted the Council to revoke the planning permission or, if that was not possible, to negotiate changes to the development and provide suitable landscaping to reduce its impact.
2. Mrs X also complained about the Council’s complaint handling. She wanted the Council to ensure officers did not have a conflict of interest when responding to complaints.

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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 may investigate complaints made on behalf of someone else if they have given their consent. Mrs X has given her written consent for Mr Z to represent her in making this complaint. (Local Government Act 1974, section 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. I have:

• considered the written complaint and supporting papers from Mr Z;
• talked to Mr Z about the complaint;
• considered planning information on the Council’s website about the development;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s response with Mr Z; and
• shared a draft of this statement with Mr Z and the Council and considered their responses.

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What I found

Background

7. Most development needs planning permission from the local council. Before deciding a planning application, the council must publicise it so people can comment on the proposed development. Developers may change their applications before the council’s decision.
8. Councils must consider each application on its own merits. They should also make decisions in line with their development plan policies unless material planning considerations indicate otherwise. Material considerations concern the use and development of land in the public interest, for example, traffic generation and overlooking. Peoples’ comments on planning and land use issues are material considerations that councils must take into account although they do not have to agree with them. Private concerns, for example, a developer’s behaviour and changes to property prices, are not material planning considerations.
9. Planning policies and material planning considerations may pull in different directions, for example, promoting housing development and protecting the living conditions of existing residents. While councils must take account of relevant policies and other material planning issues, they may give competing considerations different weight. In practice, this means councils can grant planning permission for development that does not meet all relevant planning policies.
10. There is no legal requirement to visit an application site, but a council planning officer often will do so before writing a report on an application. The report will assess the development proposals, taking account of competing or conflicting policies and material considerations. And, having weighed and balanced the key planning issues, the report usually ends with a recommendation to grant or refuse planning permission.
11. A senior planning officer(s) authorised by their council to decide applications will consider most reports. The senior officer does not have to accept the report recommendation but may give different weight to the planning issues when deciding an application.
12. Normally, councils grant planning permission if they consider the proposed development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal.

The Council’s policies and procedures

13. The Council’s planning policies include its 2013 Local Plan and a ‘House Extension Guidelines Supplementary Planning Document’ (‘the SPD’).
14. Local Plan policy P14 seeks to protect and enhance the amenity of existing and potential occupiers of land and buildings when considering development proposals. Policy P15 concerns good quality design and expects proposals to conserve and enhance local character and ensure their scale, massing and materials respect the surrounding area.
15. The SPD provides guidance on extending a home without unduly affecting neighbours and respecting the character of the property and its surroundings. The SPD also outlines the main considerations the Council will take into account in assessing extension applications. The SPD says the Council will normally apply ‘the 45-degree rule’ to safeguard neighbours’ living conditions and:

• calculate the 45-degree angle from the centre point of the neighbour’s nearest main habitable room window;
• an extension that breaches that angle “can reasonably be expected to affect outlook and light to neighbouring properties”;
• a first-floor extension that breaches the 45-degree rule “will normally be unacceptable”; and
• the 45-degree rule will not always be appropriate and sometimes other matters “will carry as much and potentially more weight, such as orientation, and changes in levels”.

16. The Council also has a two stage complaints procedure. At stage 1, an officer from the relevant Council service will try to solve the problem within 30 working days. If someone remains unhappy, they can take their complaint to stage 2, where the Head officer of the relevant service will review the complaint. The Head of Service aims to reply within 10 working days or, for complex complaints, 20 working days.

What happened

17. The Council received a planning application (‘the Application’) for a house extension near Mrs X’s home. A planning case officer visited the site and took photographs of the application property (‘the Site’) and its surroundings. The officer considered an Application plan did not correctly show the relationship of the Site to a neighbouring property (‘the Property’, which was Mrs X’s home). The officer asked the developer to provide an accurate plan, which it did. The Council’s normal practice on receiving an amended plan is to rename the earlier plan to show it has been replaced; and upload the new plan to its planning record and website. This did not happen in this case.
18. Meanwhile, the Council publicised the Application. Mrs X, and other residents including Mr Z, objected to the extension. Mrs X’s objections included the extension: being dominant, obtrusive and overbearing; reducing light to her side wall windows; and breaching the 45-degree rule, which would lead to overshadowing and reduce outlook from her front windows.
19. The planning case officer prepared a report assessing the Application (‘the Report’). The assessment used the original, incorrect, plan. The Report said the extension was partially compliant with policy P15 and would not cause significant harm to justify refusal because of its design, scale and character. The Report also said the extension respected, but did not enhance, neighbours’ amenities. And the extension would not unduly affect neighbours’ privacy; have an unduly overbearing impact; or cause an unacceptable loss of light and outlook. The Report found the extension partially compliant with policy P14 and would not cause significant harm to neighbouring amenities to justify refusal on those grounds. The Report also referred to ‘orientation’ and that front elevations faced north, receiving the least amount of light. The Report said this orientation meant the extension would not have a detrimental impact on loss of light to the Property. The Report recommended granting planning permission.
20. A senior Council planning officer considered the Report with the planning file. This meant the senior officer also considered the original, incorrect, plan in deciding the Application. The senior officer agreed the Report recommendation and the Council granted the extension planning permission.
21. Mr Z then asked the Council why it had approved the extension when it substantively breached the 45-degree rule. The Council said it had considered the 45-degree rule and, sending a plan showing its measurements, said there was no breach. The Council also said the 45-degree rule was guidance and a breach of the rule could be acceptable. And any breach from the extension would most likely be to the north-west of the Property, which orientation would cause limited loss of light. Mr Z said the developer had misled the Council as its plan, which the Council had used in applying the 45-degree rule, was inaccurate. Mr Z asked what the Council would do about the planning permission given it was based on materially incorrect information.
22. Another, more senior, officer considered Mr Z’s correspondence. The Council then told Mr Z it had secured amended plans from the developer, which allowed it to fully and properly assess the Application and the impact of the extension. On the 45-degree rule, the Council said it was a guide to what was acceptable, and its breach did not automatically mean refusing planning permission. The Council stressed the 45-degree rule was “normally’” applied but it considered each application on its merits. Here, its planning case officer had found the extension would breach the 45-degree rule. But, on considering other matters, including orientation of affected properties, the officer found no unreasonable impact on neighbours’ amenities.
23. In reply, Mr Z said the Council’s two responses were contradictory as it had said both there was and was not a breach of the 45-degree rule. Mr Z did not accept the Council had considered ‘other factors’ in assessing the 45-degree rule: it had no reason to do so given it had, mistakenly, found no breach. Mr Z said it was clear that when the Council decided to grant planning permission, it believed there was no breach. That decision was flawed as a substantial breach of the 45-degree rule existed. The Council needed good and specific reasons not to apply the ‘normal’ 45-degree rule and could not, retrospectively, push it aside using general comments about orientation. Mr Z asked the Council to revoke the planning permission and reconsider the Application.
24. The Council said while its planning case officer had not at first identified a breach of the 45-degree rule, it was a minimal breach. Its case officer had taken measurements during a site visit and in interpreting policy and applying planning judgement found the impact of the extension acceptable. The Council said there were no grounds to refuse planning permission for the extension. The Council told Mr Z how he could challenge the planning decision in the courts. It also referred Mr Z to its complaints procedure.
25. Mr Z, for himself, Mrs X and other residents, complained to the Council. Mrs X, dissatisfied with the Council’s responses, asked Mr Z to represent her in complaining to the Ombudsman. In summary, Mrs X’s position was the Council had failed to properly consider residents’ objections about both loss of light and the scale and dominance of the extension. It had also wrongly relied on misleading plans in applying the 45-degree rule. The extension significantly breached the 45-degree rule and the Council had not justified departing from that rule in granting the extension planning permission.
26. In dealing with the complaint, Council officers visited the Site and the Property. The Council also changed its view about the extent to which the extension breached the 45-degree rule. This change arose because the Council used different points, at ground floor level, from which to measure the 45-degree rule. In summary, the Council’s final position was:

• the Report addressed the appearance and impact of the extension on the area;
• the Report was flawed as it did not expressly address how the extension impacted on a ground floor side window of the Property; and
• the Report was wrong and misleading as it indicated the extension complied with the SPD when there was a breach of the 45-degree rule.

27. In considering the Property’s side window, the Council said it was smaller than expected for a conventional habitable room and the room used space under the stairs. The Council said the light to the window was already compromised and added harm from the extension would be minimal.
28. In addressing the 45-degree rule, the Council said at ground floor level the breach was 0.75 metres, and at first floor level 1.2 metres. At ground floor level, as well as orientation, the Council noted the affected Property window had a substantial overhanging canopy. The SPD allowed such issues to have weight. And there was a strong case for approving the Application despite the breach of the 45-degree rule.
29. The Council admitted its error in using the original, incorrect, Application plans. While it did not conclude that it would have refused planning permission, it recognised its assessment of the wrong plans would have caused Mrs X frustration and distress. The Council therefore apologised to Mrs X, including for its delayed responses to the residents’ complaint made by Mr Z, and paid her £250 compensation.
30. The Council also changed its procedures so planning applications for house extensions must include specific 45-degree rule information. It also introduced new checks for handling officer planning decisions. On complaints handling, the Council now appoints an officer to monitor responses. This officer, if necessary, provides added support and a link to complainants to ensure they are told about progress with their complaint.
31. In representing Mrs X in her complaint to the Ombudsman, Mr Z questioned the Council’s changed position on the extension. Its stage 1 complaint response found the extension ‘on the cusp’ of being unacceptable’. Then, at stage 2, it found ‘circumstances providing a strong case to approve’ the extension. Mr Z said ‘being on the cusp of acceptable’ meant it was more likely than not the Council would have refused planning permission if it had correctly assessed the Application. Mr Z said the Council had not justified its stage 2 view, which conflicted with the SPD that said breaches of the 45-degree rule were not normally acceptable.

Consideration

Introduction

32. My role was to consider whether the Council acted with fault and, if so, whether that fault caused Mrs X injustice.

Fault

33. The Council noticed the Application plans contained errors and acted to secure accurate plans. It was, therefore, unfortunate that it then failed to consider the correct plans. However, given the Council’s admission that its formal assessment of the Application used the inaccurate plans, there was fault here.
34. The main difference between Mrs X and the Council concerned the consequence of that fault. The Council’s position was the fault made no difference: it would have granted planning permission if it had assessed the Application using the correct plans. Mrs X disagreed and pointed to the extent to which the extension breached the 45-degree rule; the lack of similar decisions; and the Council’s stage 1 comments. Mrs X also remained dissatisfied with the Council’s response to her concerns about both the impact of the extension on light to her side window, and its size and scale.

The 45-degree rule

35. I have no powers to decide planning applications but can question council decisions if they are taken with fault. However, such questioning still does not allow me to replace the judgements and decisions of a council, made through its officers, about a planning application. What I can do is decide whether a council was more likely than not to have reached a different decision if any identified fault had not occurred. So, the key issue for me here was whether the Council would, on balance, have refused the extension planning permission if it had identified the breach of the 45-degree rule.
36. I carefully considered both sides comments and photographs, which included a view of the completed extension taken from the Property. Development invariably results in changes and people will hold different views on whether the impacts of such change are or are not acceptable. Planning applications are decided on their individual merits. And planning policies support this by including words such as ‘normally’ and ‘generally’, which recognise exceptions to policies will arise when considering the circumstances of each application. Policies also often contain ‘subjective’ words and phrases, such as ‘acceptable’, ‘significant’ and ‘undue harm’. Planning decisions involve the need to balance and weigh competing, and often conflicting, policies and considerations. It is the role of a council’s officers to apply their experience and professional judgement, having considered the relevant issues, and decide if an application should gain planning permission. Overall, this means different people may properly and reasonably reach contrary views about whether a development is or is not acceptable on planning grounds.
37. I considered the extent of the breach of the 45-degree rule as the Council changed it view between its stage 1 and 2 complaint responses. I found the Council’s stage 2 position correct in measuring the 45-degree rule, in line with the SPD, from the centre of the relevant windows. So, there was a 0.75 metres ground floor and 1.2 metres first-floor breach of the 45-degree rule.
38. The SPD, in dealing with the 45-degree rule, used the word “normally”. It also said single storey extensions were “usually” considered with greater flexibility given the existence of permitted development rights. (Permitted development is a blanket planning permission given by Parliament. Permitted development includes the right to build, subject to conditions, a single storey side extension without any approval from the local council.) The SPD also said the 45-degree rule would not always be appropriate and there would be cases were other matters carried as much if not more weight, such as orientation. The Council’s 45-degree rule was not therefore ‘absolute’ but included matters allowing the exercise of judgement by the Council, through its officers. The 45-degree rule was also but one, although an important, consideration for the Council to take into account in reaching its planning decision.
39. The Council said the ground floor breach of 0.75 metres was “not significant”. And yet, a ‘not significant’ breach would still have an impact. The question for the Council would therefore have been whether that impact, either individually or cumulatively, justified refusing planning permission. I considered the SPD, the design of the Property’s ground floor front window, and its orientation. I found the Council’s view, that the impact of such a breach was acceptable, was sustainable on planning grounds.
40. The Council said the first-floor breach of 1.2 metres was “not insignificant”. A ‘not insignificant’ breach would be likely to have a greater impact than a ‘not significant’ breach. Again, the question would have been whether the impact of that ‘not insignificant’ breach justified, either individually or cumulatively, refusing planning permission. The relevant key issues for consideration were the SPD and orientation of the Property’s first floor front window.
41. Mrs X pointed to the Council’s stage 1 response, which had said a 1.2 metres breach was “on the cusp of making the proposals unacceptable”. And yet, the Council did not, in either its stage 1 or 2 responses, find any breach of the 45-degree rule did make the proposals unacceptable. I recognise Mrs X’s response might well be that, of course, the Council would not admit this.
42. Mrs X also said the Council had not provided details of other cases breaching the 45-degree rule but granted planning permission. The Council pointed me to two recent cases where it had granted planning permission for development that breached the 45-degree rule. I did not find either case comparable in their planning circumstances to the Application. And yet, the two cases confirmed the Council did approve applications where development breached the 45-degree rule.
43. A Council planning officer also visited the Site before the grant of planning permission. The officer took several photographs that showed the Site and its relationship to the Property. When the officer asked the developer for amended plans to correctly show that relationship, those plans did not change the proposals for the extension. I was therefore satisfied the officer, in writing the Report, properly understood the proximity of the extension to the Property. And the extent to which the extension would project beyond the Property’s first floor window. The Report also referred to ‘front elevations facing north’ and that orientation meant there would not be “a detrimental loss of light to [the Property]”. I also considered the Council’s first response to Mr Z, which it sent before it realised it has used the wrong plans to assess the Application. That email said the 45-degree rule was guidance and “some” breach could be acceptable, which differed with each case. And, with the Application, “the area most likely to breach is to the north-west of the [Property] and due to this orientation relationship it would cause limited loss of light”.
44. Overall, I did not find the Council’s view, that the impact of the 1.2 metres breach would not have affected its decision, was without planning merit and unsustainable.

The Property side window

45. The Council accepted the Report did not expressly address the effect of the extension on the side window to a ground floor room in the Property. The Council pointed to the SPD not listing such a room as a habitable room. (Habitable rooms being main room like lounges, bedrooms and kitchen/diners, and non-habitable rooms being bathrooms, utility rooms and hallways.) And, that light to such a room, which, in part, used understairs space, would not receive the same protection as a main habitable room and its principal window. The Council also referred to historic plans for development at the Property that suggested the room might not have been part of the original layout.
46. I considered the Council’s photographs, which included those taken from inside the Property of the room and its window. The SPD neither listed the room as ‘habitable’ nor as ‘non-habitable’. The side window was ‘small’ and looked onto the boundary fence between the Property and the Site and, beyond that, to the original brick side wall of the Site property. I found the Council’s planning view, that light to the room was compromised and the extension would cause minimal added harm, to be sustainable. I found no evidence to suggest the omission from the Report of an express reference to the room was likely to have affected the Council’s decision to grant the extension planning permission.

Size, scale and appearance

47. Mrs X also objected to the ‘design, scale and character’ of the extension. In the complaint, Mr Z pointed out that compliance with the 45-degree rule would have reduced the size of the extension. In turn, this would have affected the outlook from the Property and reduced the extension’s visual prominence in the street. And yet, the extension was the same on both the original and corrected plans. The Report, prepared after the planning case officer had visited the Site, addressed the issue of design and scale and found no harm sufficient to justify refusing planning permission on that ground. I did not therefore find the Council’s fault affected its views about the acceptability of the design and scale of the extension.

The Council’s decision to grant planning permission

48. Overall, the evidence did not provide grounds for me to find the Council was more likely than not to have refused planning permission if it had assessed the Application using the correct plans.

Complaints handling

49. The Council failed to meet its time targets in responding to the complaint made by Mr Z for himself, Mrs X and other residents. It took over five months for the complaint to complete the Council’s complaints procedure. There was some contact between the Council and Mr Z during those five months. And yet, the Council did not properly update the complainants about what was happening. There was fault here, which the Council recognised in apologising to Mr Z and Mrs X for its delays. The Council’s delay in handling the complaint about its planning decision would have caused Mrs X avoidable distress and frustration.

Putting matters right

50. I found the Council’s failure to properly apply the 45-degree rule to the extension would not, on balance, have affected its decision to grant planning permission. So, Mrs X was not living next to an extension that would not have been built but for the Council’s fault in assessing the wrong plans. I found injustice to Mrs X arising from the Council’s poor complaints handling. This injustice was already proportionately, appropriately and reasonably put right by the Council’s apologies and £250 payment.
51. I made no recommendations for service improvements as the Council had already taken steps to avoid similar problems arising in the future (see paragraph 30).

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Final decision

52. I completed my investigation finding there was fault causing injustice which the Council had already suitably put right.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman