Summary: Mr D complained the Council approved a neighbouring extension which overlooks his home and garden. We do not uphold the complaint, finding no fault in the process followed by the Council in approving the extension.

The complaint

1. I have called the complainant ‘Mr D’. He complains the Council gave approval to a neighbouring extension which overlooks his garden and provides views into his house. Mr D does not consider the Council gave enough consideration to the difference in height between his property and the property being developed when it approved the extension.
2. Mr D says as a result his privacy and right to enjoy his home has been compromised.

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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. Before issuing this decision statement I considered:

• Mr D’s written complaint to the Ombudsman and any supporting evidence he provided including a photograph of the extension as it appears from his rear garden;
• the Council’s correspondence with Mr D which pre-dated our decision to investigate his complaint;
• further information available via the Council’s website;
• relevant national and local planning policy.

6. I gave Mr D and the Council a chance to comment on a draft of this decision. I took account of any comments made in response before issuing this final decision.

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What I found

Prior Approval planning applications

7. Not all development requires planning permission. National legislation allows some development without the need to submit a planning application. This is known as 'permitted development'. 
8. Some permitted development still requires the developer to submit an application to their local council which is their local planning authority. These are known as 'prior approval’ applications. Where the Council receives such an application, national legislation only allows it to consider certain impacts from the development.
9. A developer or owner of a property can use the ‘prior approval’ process for some larger single-storey rear extensions. The process can be used when a developer wants to build an extension on a single storey building of up to six metres in length and four metres in height.
10. After receiving a ‘prior approval’ application of this kind the Council must inform neighbours of the application and invite their comments. If they object then the Council must consider those objections. But it can only consider objections based on the impact the extension will have on their amenity. This is a planning term that refers to the general enjoyment that a use has of its site; so, in the case of a residential dwelling it refers to how the occupiers of a home enjoy that use.

Relevant Local Planning Policies

11. The Council has local planning policies it must consider when considering applications for neighbouring extensions. These include:

• Policy CS14 which says that preventing negative impacts of development on residential amenity can help promote the health and wellbeing of communities.
• Policy MSGP17 which says development must provide a good standard of amenity for occupiers. It also says the Council will not give planning permission to development that has an ‘unacceptable’ impact on neighbouring amenity.
• Its Householder Alterations and Extensions SPD (supplementary planning document); this says that extensions should not dominate neighbouring properties or significantly alter levels of sunlight, daylight or privacy. While each case must be considered on its merits the document says the Council will not usually accept rear extensions than project more than three metres or take up more than half of a rear garden.

Background

12. Mr D lives in a semi-detached house on a residential street in the Council’s area. The street is on a steep incline from south to north. The development at the crux of Mr D’s complaint is to the rear of a single-storey property to the immediate north of his own. Photographs show the single floor of the neighbouring property is at approximately the same height as the first floor of Mr D’s house.
13. In 2020 the Council received a ‘prior approval’ application saying the developer of the neighbouring house wanted to build a rear extension. This would be up to six metres in length and four metres high. Plans showed the northern aspect of the development (i.e. that facing Mr D’s garden) would have both patio doors and a window.
14. The Council notified neighbours of the proposal and received several objections, including from Mr D. The objections included concerns about the impact the extension would have on neighbours’ amenity. In particular that it would appear overbearing, cause a potential loss of light and lead to a loss of privacy and overlooking.
15. Because of the objections the Council referred the application to its Planning and Development Committee to decide it. Before the meeting they received a report from a Planning Officer which recommended the Council approve the application. The report:

• summarised the objections of neighbours and explained under prior approval rules the Council could only refuse permission if it considered the application had an unacceptable impact on neighbouring amenity;
• summarised relevant planning policies;
• commented twice that Mr D’s house was at a lower level than the application site and that the first floor of Mr D’s house was at approximately the same level as the single floor of the development site;
• noted the proposed position of the window and patio door in the extension;
• noted the extension would be inset around five metres from the boundary with Mr D’s house; and said: “Having regard for this inset Officers consider that the proposed window and door openings would not result in any unacceptable overlooking or loss of privacy to these neighbouring occupiers given the angle at which they would face this property, and whilst noting the difference in levels that the proposed extension would [not] result in any unacceptable overbearing impact or loss of light/overshadowing”.

16. Members of the Planning and Development Committee also received a presentation on the application from a senior planning officer. This included a power-point which showed Members copies of the plans, a block plan identifying neighbouring houses and photographs from a variety of angles around the site. The presenting officer mentioned the sloping street and pointed out Mr D’s house. They showed Members various photographs of the site, including one from within the garden of the development site looking towards the garden and rear of Mr D’s house.
17. The Planning and Development Committee decided to approve the application. They asked officers to impose a condition on the development which would prevent the developer installing any further windows in the extension without seeking planning permission.

My findings

18. Where a council has followed the correct process, considered all relevant information and given clear reasons for its decision, we cannot criticise it. We do not make decisions on a council’s behalf or provide a route of appeal against their decisions. I appreciate Mr D does not agree with the decision made in this case, but unless there is any fault in the process I cannot uphold his complaint.
19. In this instance I have been unable to identify any fault in the process followed by the Council. It properly consulted neighbours on the planning application and recorded their objections, which were summarised in its officers’ report. I note that report only concerned itself with objections based on the perceived impact the extension would have on neighbouring amenity. But this was correct as when the Government brought in the ‘prior approval’ rules it deliberately sought to limit the circumstances where councils could refuse such applications.
20. I note there is some tension between the ‘prior approval’ rules and local planning policies. The extension in this case is clearly larger and takes up a higher percentage of garden space than the Council’s Householder Alterations and Extensions SPD suggests would usually be acceptable. But the ‘prior approval’ rules must take precedent here.
21. That being said, the Council could still have refused the application on grounds that it had an ‘unacceptable’ impact on the amenity of neighbours. That is a test which relies on a degree of subjectivity. Because all extensions will have some impact on neighbours. It is a judgment for planning officers and planning committees to decide at what point that impact becomes ‘unacceptable’.
22. I have considered if there is any evidence that in making its judgment in this case, the Council overlooked any factor that would be relevant to that judgment or took account of anything irrelevant. In this case it was clearly relevant for the Council to consider the difference in land levels between the two properties. But the evidence is that it did this. The planning officer report twice drew attention to the fact as did the presenting officer at Committee. Members also saw a photograph that illustrated the point. I note from this that anyone stood in the garden of the development property, on the site of the extension, would therefore already have had views into Mr D’s garden and house because of the difference in levels.
23. So, I find the Council was fully aware of this difference when it decided the extension did not have an unacceptable impact. Officers set out in their report that this also took account of how far back from the boundary the extension would be set and that the extension is at an angle to Mr D’s house. These factors will not prevent views between the two, nor stop the extension appearing prominent to Mr D. But I consider the Council could reasonably cite these factors as providing some limitation on how overbearing the extension appears and the extent of overlooking it creates. So, I am satisfied these too were relevant factors for the Council to weigh in its decision.
24. In addition, I cannot see the Council took anything irrelevant into account in making its decision. Its report may usefully have mentioned that by being sited to the north, the extension will not have any meaningful impact on light to the rear of Mr D’s house. But this would not be a factor which counted against approval. So, there was no fault in its omission.
25. In summary therefore while I recognise the genuine distress that Mr D has experienced as a result of the Council approving this extension, I do not consider there is evidence of fault in the process followed by the Council.

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Final decision

26. For the reasons set out above I have completed my investigation. I have found no fault by the Council in respect of the matters complained about.

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Investigator's decision on behalf of the Ombudsman