Summary: Mrs D complains the Council did not properly assess the impact of a neighbour’s proposed extension on her property when it granted planning permission. We have found no fault.

The complaint

1. Mrs D complains the Council did not properly assess the impact of a neighbour’s proposed extension on her property when it granted planning permission, particularly with regard to loss of light to her kitchen.
2. Mrs D says her and her family have been caused stress and costs in paying for a survey to prove loss of light.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I spoke to Mrs D about her complaint and considered the information she sent, including a light survey she had commissioned, and the Council’s response to our enquiries.
6. Mrs D 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

Planning permission

7. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused or approved subject to planning conditions. Councils must decide the application under their development plan unless any other material considerations suggest otherwise.
8. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as reduction in the value of a property. They include issues such as overlooking, overshadowing and privacy.
9. Councils’ case officers need to consider the proposed development. The case officer’s report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The report should also refer to the development policies, national policies and other material considerations relevant to deciding the application. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
10. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions.

The Council’s planning policies

11. The Council’s design criteria advises that rear extensions to detached dwellings should generally not exceed 4m in depth. It does not specify heights for extensions but says they must not be excessively prominent in relation to adjacent properties. It says all developments are expected to maintain acceptable standards of privacy and must not result in loss of light to the windows of neighbouring properties nor allow overlooking. The design criteria also state that crown roofs are generally discouraged.
12. The policy says “…certain developments may not comply with all guidance but still may be considered acceptable. All applications will be assessed and determined on their own merits.”

What happened

13. Mrs D’s neighbour applied for planning permission for a rear and side extension. The application was publicised and Mrs D objected to it after seeking advice from a planning expert. Her main concerns were that:
• The extension would impact on the daylight and sunlight amenity to a south facing, side window of her kitchen-breakfast room, which is a habitable room. As well as impacting on direct sunlight, the height of the extension would create a darkened corridor. Given the close proximity of the extension to Mrs D’s house, the Council should consider daylight tests as described in the Building Research Establishment (BRE) guidance.
• The drawing of the proposed rear elevation did not show the height of the extension relative to true ground level, thus giving a misleading representation of the scale of the proposal.
• The proposals would adversely affect the special character of the area.
14. The application was considered by a planning case officer, who wrote a report. The case officer's report included:
• a description of the proposal and the site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance; and
• an appraisal of the main planning considerations, including the concerns of objectors, and the impact on amenities.
15. The report assessed the impact on neighbours’ amenity including loss of light and the impact on the character of the dwelling and street scene. It referred to the design criteria and acknowledged that the proposed development would have a “somewhat detrimental” impact on the sunlight entering Mrs D’s kitchen window. However, this was mitigated as it was not the only window serving the kitchen, Mrs D’s house was set at a slightly higher land level, and there were “significant” separation distances of 2.6m.
16. The report also considered the proposed rear dormer, crown roof, and terrace. It noted there would be no windows on the side of the extension and that the depth of the extension complied with the design criteria. It said, given the location of the extension and the minimal scale of the crown roof, it was not considered the crown roof would result in inappropriate bulk and massing. The report did not consider the extension would result in an unacceptable loss of light, overbearing impact, or additional overlooking.
17. The report concluded that the proposed extension would be acceptable with regard to its impact on the host dwelling, street scene and wider area, would not result in demonstrable harm to neighbours’ amenity, and there was no reason to justify refusal of planning permission. The application was approved subject to planning conditions by a senior officer using delegated powers.

Mrs D’s complaint

18. Mrs D complained in November 2020 that the application and its impact on their source of direct daylight, and thus their wellbeing, had not been considered adequately or within the remit of material planning considerations or the design criteria. She noted that in the autumn and winter the window was the only source of direct sunlight in the kitchen. The report did not explain why a daylight test was not carried out. Mrs D said the higher roof of the extension negated any mitigating effect from her property being at a “slightly higher land level”, but in any case the properties were at virtually the same level. She asked whether the design criteria referred to recommended heights for extensions and how “somewhat detrimental” was defined.
19. The Council responded that the development complied with relevant planning policy. It accepted there would be an impact on Mrs D’s light, but it did not consider this resulted in unacceptable harm to Mrs D’s amenity and therefore it was not sufficient to justify the refusal of planning permission. The letter said therefore “it would be extremely difficult for us to defend a refusal on amenity grounds at appeal”. The Council had not ignored the daylight test, but officers were required to assess applications in accordance with the relevant development plans. The case officer had visited the site and considered Mrs D’s property sat on slightly higher ground level. No measurements were taken. The design criteria did not specify heights for extensions but provided guidance that extensions must not be excessively prominent in relation to adjacent properties nor result in loss of light to the windows of neighbouring properties.
20. Mrs D remained dissatisfied and asked for her complaint to be escalated to the next stage in the process, raising a number of questions. She noted that her kitchen-breakfast room contained an internal wall which prevented light from the other window going into her kitchen.
21. She also sent the Council a light survey she had commissioned which was carried out in December 2020. This said that a development should not be granted planning permission if it removed substantial light from the kitchen window in breach of the minimum target values. In Mrs D’s case it had found there would be a 34% reduction in the amount of sky that could be seen from the window and an 80% reduction in winter sunlight. The survey said the development failed to confirm full compliance with the BRE Guidelines and the District Local Plan.
22. The Council responded that:
• It did not have a daylight and sunlight policy. Planning applications were assessed in accordance with the development plan which did not refer to daylight and sunlight assessments. As a result, there was no requirement for the Council to consider/conduct such assessments during the planning application stage.
• If the properties were level, the Council did not consider this would change the outcome of the application.
• There was no specific guidance on distances between the flank of neighbouring homes and the side of proposed extensions. A separation distance of 2.7m was considered significant to ensure that it would avoid appearing unduly prominent or adversely affecting Mrs D’s property.
• The Council could only assess the plans submitted. If the owners were to build something different to the approved plans this would be in breach of the planning permission and a planning enforcement case would need to be opened.
• The acceptability of crown roofs was a design consideration, rather than a factor that may impact on neighbouring amenity. However, the depth of the extension complied with the design criteria and the crown roof element was set in from the flank of the extension, which meant that no demonstrable harm would result.
• The fact that refusal of the extension may be difficult to defend at appeal was not a factor which was considered when assessing the planning application.
• Officers were not required to obtain neighbouring floorplans and in this case the site visit was considered sufficient to make an assessment.
• The 45 degree splay line was not used when assessing single storey extensions.
• There would be no greater impact on Mrs D’s privacy levels when compared to the current situation.
• The case officer had regard to the local plans, site visit and the submitted plans. The Council did not consider that the kitchen-breakfast room would be unacceptably affected by the development. It had determined the proposed extension was acceptable in planning terms.
• It did not consider a further site visit was necessary.
23. Mrs D remained dissatisfied and complained to the Ombudsman.

My findings

24. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. It is not for me to determine whether the extension causes such loss of light that the application should have been refused. My role is to determine whether there has been administrative fault in the way the Council made its decision to approve the application.
25. There is no dispute that the extension will impact on the light in Mrs D’s kitchen-breakfast room. The Council’s design criteria say that extensions must not cause loss of light to neighbouring windows, but councils are entitled to deviate from their own guidance as long as they consider the impact of doing so. Planning policies and material planning considerations may pull in different directions, for example, supporting new housing and protecting existing residential amenities. While councils must take account of relevant policies and material planning issues, they may give competing considerations different weight. In practice, this means councils may grant planning permission for developments that do not comply with all relevant planning policies.
26. The question for the Council therefore was whether the impact on Mrs D was sufficient to refuse the planning application. In considering this, the case officer had visited the site.
27. Mrs D is concerned the Council or developer did not carry out any tests to assess the impact on her light. However, the Council was not required to do so, so I cannot say there was fault.
28. In response to my draft decision Mrs D said the Council’s lack of a definition of “loss of light” rendered their design criteria meaningless. She said councils should use industry standards if they do not have a definition or a sunlight/daylight policy. Planning authorities are not required to define “loss of light” and must consider each application on its own merits.
29. Mrs D raised concerns that in response to her complaint the Council referred to the difficulty of defending a refusal at appeal. She considered this should not be an issue the Council should consider in its assessment of the application. There is no reference to this in the case officer’s report, but it is not fault for a council to consider whether a refusal would be defensible in planning terms when it is deciding an application.
30. Mrs D says the Council used an incorrect assumption about land levels as a mitigating factor in determining the application. The Council says it would have reached the same decision even if it had considered the land levels to be the same. I have seen no evidence that land levels were the only reason for approving the application.
31. The case officer’s report addresses the loss of light and concludes that the impact did not cause unacceptable harm. It also considers the other elements of the extension and concluded they were not overbearing and found there would be no additional overlooking.
32. The report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered the impact on the amenity of existing properties. The report then assessed these matters and concluded the development would not cause any significant harm to the living conditions of neighbours. It concluded there were no planning reasons to justify refusing the application.
33. The Council decided the impact on Mrs D's, or any of the other properties, did not give grounds to refuse the permission. It has provided reasons for taking this view. While I appreciate Mrs D does not agree with this assessment, I do not find fault in the way the decision was made. I therefore cannot challenge it.

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Final decision

34. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman