Summary: Mr Y complains about the Council’s decision to approve plans for the extension of a nearby house. We do not find fault in most of Mr Y’s complaint. However, the Council failed to assess Mr Y’s concerns about increased noise within the officer’s delegated planning report. We consider this fault created no injustice to Mr Y because, on the balance of probabilities, even if the officer had assessed this point it is unlikely they would have reached a different decision.

The complaint

1. The complainant, whom I will call Mr Y, complains about the Council’s determination of a planning application at a nearby house. He says the Council failed to properly consider the impact of the development on his residential amenity and based its decision on incorrect information which the planning officer included in their report.
2. Mr Y says this has caused an injustice because the extension will impact upon the enjoyment of his home and garden.

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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. 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)
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. During my investigation I discussed the complaint with Mr Y and considered any information he provided. I also made enquiries of the Council and considered its response alongside the relevant planning law and guidance.
7. I issued my provisional findings in a draft decision and invited comments from the Council and Mr Y which I considered before making a final decision.

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What I found

What happened

8. Mr Y complains about the Council’s determination of a part two-storey extension at a neighbouring house. The application, which the Council received in November 2020, proposed a second storey to be built onto an existing single storey extension which the occupier built under permitted development rights. Mr Y submitted representations in December 2020. In summary, these said:
• The external materials used on the east elevation do not match the existing materials and are visible from Mr Y’s property.
• The proposed Juliet balcony has views into Mr Y’s rear garden and will affect his privacy. Mr Y suggests the use of frosted glass.
• The light entering Mr Y’s rear garden will reduce as a result of the side and rear extension.
• The proposal will result in increased household noise and increased odours from tumble drier ventilation.
9. The Council approved the plans, with conditions, in January 2021. Mr Y complained to the Council about errors in the process, its decision and the impact on his home. The Council did not uphold his complaint and Mr Y approached the Ombudsman. I will consider each of Mr Y’s points in the following paragraphs.

Site visit

10. Mr Y complained the Council determined the application without having visited the site in person. In response to Mr Y’s complaint the Council explained the reasons why it did not visit the site. In particular, it says that officers adhered to government advice relating to COVID-19 restrictions and the case officer had received comprehensive photographs showing all sides of the property and garden. The case officer received and considered the photographs on 10 December 2020 and before their determination of the planning application.
11. There is no requirement, either within planning legislation or guidance, for councils to conduct site visits in all cases. This is a matter of discretion for the officer. If they consider they have enough information to reach a decision, the officer may decide it is not necessary to visit the site in person. I am satisfied the officer had enough visual information to aid their decision making and I do not find fault in this part of Mr Y’s complaint.

Loss of privacy

12. Mr Y complained to the Ombudsman that he has lost privacy in 50% of his rear garden, and the remaining area is affected by overlooking in some respect due to the inclusion of a ‘Juliet’ style balcony on the first floor of the extension. He says the Council failed to give due consideration to his concerns, and if it had done, small changes to the design of the side extension could have been made to minimise the loss of privacy.
13. In response to Mr Y’s complaint, the Council said it appreciated and understood his concerns and his wish to protect his property, but that the issues he raised in his December 2020 objection were properly considered by the case officer who dedicated a whole section of their report to the issue of privacy before reaching reasoned conclusions.
14. The Ombudsman does not interfere with the merits of council decisions unless we find those decisions were affected by procedural fault. We therefore look to see whether all objections and material planning matters have been properly considered by the Council, rather than questioning the merits of the decision and replacing the officer’s judgement with our own conclusions.
15. I have considered the officer’s report on this point, which said:

“There is not considered to be any significant impacts to neighbouring living conditions due to appropriate scale and location of the proposal. New windows are proposed to the front and rear at second storey level, and roof light to the rear. Attention was drawn to windows facing neighbour [Mr Y], the roof light would be positioned approximately 1.6m above floor level. In such a context, potential for overlooking and loss of privacy is minimised, and is not considerably worsened given the orientation of existing windows within the host dwelling. Therefore, the neighbouring properties would suffer no significant loss of daylight, sunlight or privacy as a result of the proposed side extension and the retention of the single storey extension. It is considered that the proposed new windows or Juliet balcony would not give rise to any significant loss of privacy. Given the existing relationship between properties, and levels of overlooking in this area, it would be unreasonable to insist that obscure glazing is installed in this case”.

16. I am satisfied the Council properly considered the privacy and overlooking issues raised by Mr Y and I do not find fault on this point.

Existing single storey extension and garaging provision

17. Mr Y said the information contained within both the planning application and the case officer’s delegated report was incorrect because they both referred to the existing single-storey extension being incomplete. Mr Y says this is untrue and the extension is complete and has been in use for some time before the occupiers submitted their application.
18. The first section of the officer’s report ‘site description/context’ states, “… application form states work started 02/05/2018, but are yet to be completed”. The officer makes no further reference to the status of the existing extension. This paragraph also states the proposed second storey extension will be “…above the existing garaging provision”.
19. In response to Mr Y’s complaint the Council explained its view that the status of the extension had no bearing on the conclusions reached by the case officer. The Council also pointed out that the officer had considered photographs of the extension showing it in context of the wider development. In response to the Ombudsman’s enquiries, the Council further explained that planning decisions must be ‘blind’ as to whether the proposal is entirely or partially retrospective. Therefore, the stage of construction has no bearing on the Council’s assessment of the proposal.
20. Mr Y also raises concerns about the officer report incorrectly stating the extension will be above garaging provision. I have considered the plans and Mr Y is correct to point out the single storey extension does not provide garaging provision; the garage is detached and accessed to the rear of the property.
21. I find no fault in this part of Mr Y’s complaint. The construction status of the existing extension was not relevant and had no bearing on the Council’s determination of the application. Furthermore, the officer had simply repeated the applicant’s own description of the extension and offered no further comments or analysis on this point.
22. The reference to the second storey element being constructed above garaging provision is incorrect because the plans show the existing extension to contain habitable rooms. However, I am satisfied this had no bearing on the decision because the officer’s report also refers to “… a detached garage and parking spaces to the rear and side”. This is an accurate reflection of the plans.

Car parking

23. Mr Y complains the Council granted planning permission despite the proposal failing to meet the Council’s adopted parking standards. In response to Mr Y’s complaint, the Council says the photographs on file show two cars parked on the driveway with space for a third car. The Council also points out that the Highways Engineer did not submit any objections to the proposed application.
24. I have considered the ‘Wiltshire Local Transport Plan 2011-2026: Car Parking Strategy’ which states that residential developments containing four or more bedrooms should have a minimum of three off-road car parking spaces. The policy says that garages count as part of the parking provision.
25. I do not find fault on this part of Mr Y’s complaint. The plans show a detached garage to the rear of the property and a driveway large enough for at least two cars. The officer was therefore satisfied the development met the Council’s minimum parking standards, and stated, “The existing garage is being maintained and there is enough space to provide three parking spaces on the existing driveway. As such, the parking provision is considered to be acceptable. On balance with adequate provision available within the curtilage, it is considered there will be no adverse impacts for parking, highway safety or road network capacity as a result of development taking place”.
26. I appreciate Mr Y disagrees with the Council’s conclusion that the driveway is large enough for the parking of three cars, however the Council is entitled to consider garage provision when assessing the proposal against the parking standards. Mr Y has not provided any evidence to support his claim that the garage should not be counted within the provision. Therefore, I find no fault in the way in which the Council assessed the proposal against any relevant highway considerations.

External materials

27. Mr Y also complains about the use of certain external materials, such as timber cladding and concrete blocks. The case officer’s report considers this:

“It is a contemporary take on the simple gable extension and uses a combination of natural and matching materials. Concerns have been raised in relation to timber cladding changing the character of estate, timber cladding and weatherboard does feature in this area, as seen within neighbouring residential development opposite the application site”

“The design, appearance and proposed use of materials for the new extension is considered entirely appropriate to this dwelling. The site is surrounded predominantly by relatively modern C20 residential development and not within a sensitive area where it might be considered necessary to impose more strict design principles. Whilst views are visible from the wider street scene, this would be read within the context of the existing built residential form and would not be significantly detrimental to the character and appearance of the area”

28. Although I appreciate Mr Y disagrees with the officer’s analysis on this point, in the absence of procedural fault the Ombudsman is unable to criticise the Council’s judgement. The report shows the Council gave due consideration to the issue of external materials and gave a reasoned conclusion about the appropriateness of the proposed materials in the context of the immediate surroundings.

Noise and odour

29. In his objection to the proposal, Mr Y said, “there are concerns of smells from the rear extension east wall ventilation (tumble dryer) which will be impeded/trapped further from escaping into the atmosphere with a further elevated south elevation wall from the proposed first floor extension”.
30. He says the case officer did not consider this when determining the application. I agree there is no reference to Mr Y’s comments about increased odours within the officer’s report. However, the officer is only obliged to assess the material planning considerations which are engaged by the application in question. Smells and air circulation are not material planning matters. Furthermore, I am not persuaded that smells from a tumble dryer would cause Mr Y significant injustice. I do not find fault with the Council’s assessment on this point.
31. Mr Y also raised concerns about increased noise, “There are noise emissions through proposed doors and windows into our garden/house due to the close proximity of the proposed building to our property. This is likely to cause disturbance and enjoyment of our outside space”
32. The case officer’s report refers to Mr Y’s objections about increased noise but provides no comment or analysis on this point. When we asked the Council to clarify how the officer considered this point, it said, “I would not expect the officer report to cover issues such as noise or odour in connection with a proposal for ancillary domestic floorspace since it is not reasonable (or indeed lawful through planning legislation) for a LPA [Local Planning Authority] to seek to control activities reasonably connected to the occupation or use of a domestic residence as a single dwelling house. In such circumstances, other legal regimes exist which cover nuisance from noise and odours”
33. The Ombudsman expects councils to record how all key material planning considerations were considered by a case officer. We do not interfere with planning judgments. Provided regard is had to all material considerations, it is for the decision maker to decide what weight is to be given to the material considerations in each case.
34. The Council is at fault for not showing how it considered Mr Y’s objections about noise. This is because noise from residential development is a material consideration, as per the Planning Portal, the government’s guidance note on noise in planning and the National Planning Policy Framework (NPPF) which states that the planning system should contribute to and enhance the natural and local environment by, “preventing new and existing development from contributing to, being put at unacceptable risk from, or being adversely affected by, unacceptable levels of soil, air, water or noise pollution or land instability”
35. The specific inclusion of noise in the NPPF means that it is a material planning consideration. The NPPF goes on to say that planning policies and decisions should, “mitigate and reduce to a minimum potential adverse impacts resulting from new development – and avoid noise giving rise to significant adverse impacts on health and the quality of life”.
36. Where we find fault, we must decide whether it caused an injustice. In planning cases, this means we must have evidence to show that because of the fault the outcome would have been different. Unless we can show that, on balance of probabilities, the outcome would have been different, we will not recommend a personal remedy.
37. On the balance of probabilities, I consider the fault identified has not caused an injustice to Mr Y. This is because the NPPF asks councils to minimise noise which causes “… significant adverse impact on health and quality of life”. The speculative noise which Mr Y describes is normal domestic noise which he says is likely to create a ‘disturbance’. I am not persuaded the extension is likely to create additional noise to a level which will significantly impact on the quality of Mr Y’s life.
38. Therefore, on balance I find it unlikely that the officer would have reached a different decision even if this point had been considered in their report. However, if Mr Y does experience significant noise from the house in the future, he would be able to report a statutory nuisance which the Council has the power to consider under the Environmental Protection Act.

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Final decision

39. We have completed our investigation and issued a final decision statement with a finding of fault causing no injustice for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman