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Tonbridge and Malling Borough Council (20 012 528)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 23 Jul 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s decision to approve a planning application on her neighbour’s land. There was no fault in the Council’s decision making process.

The complaint

  1. Mrs X complained the Council did not protect her amenities when it approved her neighbours planning application for a 2 storey extension.
  2. Mrs X said her rear conservatory is now in constant shadow and the extension has an overbearing impact on her home.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I read the complaint and discussed it with Mrs 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.
  2. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making this decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • Access to the highway;
    • Protection of ecological and heritage assets; and
    • The impact on neighbouring amenity.
  3. 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.
  4. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
  5. Planning officers may consider the loss of light or overbearing impact a new development is likely to have on existing buildings. They often use a rule of thumb, known as the ’45-degree rule’. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. They will often consider any development beyond 45 degrees as likely to be unacceptable. Some councils include this test, or versions of it, in their published Supplementary Planning Guidance, which shows how they apply policy to protect amenities.

Background

  1. Mrs X’s neighbour submitted a planning application to build a 2 storey extension on the boundary.
  2. Mrs X objected to the application because the extension would overshadow her home and breach the 45 degree line from habitable room windows in her home.
  3. The Council’s case officer considered the application and wrote a report, which included:
    • A description of the proposal and site;
    • A summary of planning history considered relevant;
    • Comments from neighbours and other consultees;
    • A summary of planning policy and guidance considered relevant;
    • An appraisal of the main planning considerations, including impact on amenity and design and materials; and
    • The officer’s recommendation to approve the application, subject to planning conditions.
  4. The case officer recognised that the extension would reduce light to Mrs X’s home and that it would breach the 45 degree line but went on to say the extension was acceptable because of it was of limited size and bulk.
  5. A senior officer considered and approved the application using delegated powers.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
  2. In this case I can see that, before the Council made its decision, it considered the plans, relevant policy and guidance, and comments from Mrs X and others. The Council followed the decision making process we would expect and so I find no fault.

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Final decision

  1. I completed my investigation as I found no fault in the Council’s decision making process.

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Investigator's decision on behalf of the Ombudsman

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