Summary: Mr B complained the Council wrongly granted planning permission for his neighbour’s two storey front and side extension. As a result, he said he and his family had a loss of amenity and had time and trouble to pursue his complaint. The Council agreed it was at fault and it should not have approved the application. We found the Council’s offer was not enough to remedy the injustice caused. The Council agreed to make a higher payment for the loss of amenity. It also agreed make payment to acknowledge Mr B’s time and trouble to pursue his complaint.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council wrongly granted planning permission for his neighbour’s two storey front and side extension. He said it made errors and failed to properly consider its impact on his property.
2. As a result, Mr B said he and his family has experienced a loss of amenity and the value of his property has reduced. He also said he had time and trouble to bring his concerns to the Council’s attention.

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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 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)
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. As part of my investigation, I have:
• considered Mr B’s complaint and the Council’s responses;
• discussed the complaint with Mr B;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law, guidance and Council Policy.
7. Mr B 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 applications

8. 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.
9. 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.
10. 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.

Council’s planning policies

11. The Council’s adopted supplementary planning documents says the effect on neighbours should be considered as a material planning consideration when it determines planning applications. A proposed development may be refused if it finds a significant impact on privacy, overshadowing or the outlook of a neighbouring property.
12. To help the Council assess the effect a proposed development has on overshadowing or the outlook of a neighbouring property, it says it will:
• take account of any windows and the way they face in relation to the extension;
• consider if it likely to significantly reduce the amount of daylight entering a habitable room or overshadow a major part of a neighbouring garden, in such cases an application may be refused;
• apply a 12-meter standard distance from blank walls of two storeys or more to a neighbouring property. Extensions which are closer will only be permitted in exceptional circumstances;
• consider a 45-degree angle guideline measured from neighbouring properties nearest habitable room to assess the impact on daylight. If this guideline is breached it may only be accepted if it does not cause significant harm to residential amenity.

What happened

13. Mr B owns a semi-detached property, which has a large window serving a dining room.
14. In early 2020, Mr B’s neighbour applied for planning permission for a two-storey extension to the front and side of the property, a single storey extension to the opposite side.
15. Mr B had concerns about the boundary set out in the planning application and discussed this with the Council’s Planning Officer. This led to new plans being submitted by his neighbour.
16. In summer 2020, the Council considered the application and the objections it had received. The Planning Officer recommended approval and said the development would not cause harm in terms of outlook, loss of privacy or overshadowing of Mr B’s property. So, the Council granted Mr B’s neighbour planning permission for the development.
17. Mr B disagreed with the Council’s view and complained to the Council. He said its decision was flawed because:
• its Planning Officer wrongly found his dining room and bedroom benefitted from other windows. He explained the only windows they had was those facing his neighbour’s extension. His habitable rooms would therefore be severely impacted as they would face the two-storey extension only seven feet away.
• its planning officer should have met with him to discuss his concerns and the layout of his property;
• it failed to properly consider his objections and its own policies as the light to the dining room would be significantly restricted and the properties would be even less than 12 meters apart; and
• the original planning permission for his neighbour’s property said it should be set back to allow the provision of light to Mr B’s property.
18. In response, the Council accepted its Planning Officer’s view of Mr B’s property’s layout was incorrect. He had therefore misjudged the importance of Mr B’s windows serving the habitable rooms. It agreed its Officer should have sought further information from Mr B following his objection, and his report should have been more detailed about the impact of the windows. It offered Mr B £250 as a gesture of goodwill. However, it said it would have approved the planning application regardless because:
• the outlook of the windows was already severely restricted due to height and distance between the properties. Although it agreed this was not a reason to make matters worse;
• it was not satisfied there would be a significant harm to the living conditions of the occupiers of Mr B’s property as a result of a loss of light;
• its 45-degree guideline was not relevant to assess the planning application as the properties were parallel; and
• the 12-meter distance set out in its policy did not apply as the properties were already closer than this.
19. Mr B refused the Council’s offer and asked the Council to reconsider his complaint. He said the Council had not showed how it assessed the planning applications impact on his habitable rooms in respect of loss of outlook, loss of light/ overshadowing and being overbearing. He also shared the outcome of a survey he had arranged for, which showed the dining room would be reduced from 44% well-lit to 21%.
20. In its final response to Mr B, the Council accepted it was at fault for its incorrect assessment of the impact of his habitable rooms’ windows. It said it had reconsidered the application and found:
• the development would cause some reduction in light and overshadowing of his property. However, this would not significantly reduce the living conditions of occupiers. This was because there was already an impact due to the existing relationship between the properties; and
• the development would be likely to have an overbearing effect on Mr B’s habitable rooms. It apologised and offered a goodwill payment of £3,000 in recognition of the impact its decision would have on the occupiers of the property.
21. Mr B remains unhappy with the Council’s planning decision and its goodwill offer. He said he has not started legal action. However, he has used solicitors and had surveyor costs in the process which is higher than its offer. So, he asked the Ombudsman to consider the matter.
22. In response to my enquiries the Council shared its view on Mr B’s complaint. It provided examples of planning cases in which it has assessed impact in a similar manner. It also said, if it had properly considered Mr B’s habitable windows before it reached its decision, it would have refused the application as it was found to be overbearing. However, it would not have been refused due to a loss of light/ overshadowing as it did not find the impact to be significant.

Analysis

The planning approval

23. The Council agreed it was at fault in how it had assessed Mr B’s neighbour’s planning application. It said its Planning Officer should have spoken with Mr B after receiving his objections as this would have clarified its misunderstanding about the windows in his habitable rooms. It also said it would not have approved the application, as it had since found the approved development had an overbearing impact on Mr B’s property.
24. The Council also considered the approved development’s impact on light and overshadowing of Mr B’s habitable rooms as set out in its Policy. It agreed there was some reduction in the light the rooms received. However, it found it would not have refused the development because of this.
25. As the Council has agreed it was at fault, and it would not have approved the application due to its overbearing impact. I will consider the injustice its fault caused Mr B and his family.

Injustice

26. I have considered our “Guidance on Remedies” which explain our role is to try and place people in the position they would have been in but for the fault. I found the Council’s offer of a £3,000 goodwill gesture was not enough to remedy the impact its decision had on Mr B and his family.
27. In reaching my view I am conscious, if the Council had not approved the application, it may have approved an amended planning application from Mr B’s neighbour which was less overbearing, or some development may have taken place under permitted development rights. However:
• the Council agreed it should have refused the application because the two-storey development will be overbearing and result in a loss of amenity for key habitable rooms in Mr B’s property;
• the Council reached its view the development would not cause a significant loss of light/ overshadowing for the habitable rooms. Normally, as the Council has now properly considered this matter, we cannot criticise its view. However, regardless of whether a light reduction from 44% to 21 % is significant or not, the reduction should not have occurred. This is because the Council agreed it would have refused the application had it properly understood and considered it before it reached its decision;
• Mr B had some time and trouble to bring his concerns about the Council’s flawed assessment of the planning application to its attention before it accepted its fault and offered a remedy. This included phone calls, emails, planning objections and the Council’s complaints process.
28. I understand Mr B had costs for his solicitor fees and light survey. However, we do not normally recommend for such fees to be reimbursed unless a matter is highly complex. I have not found this to be a complex matter which required the views of a solicitor or a light surveyor. It would have been appropriate for Mr B to bring his concerns to the Ombudsman’s attention before he incurred these costs.

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Agreed action

29. To remedy the injustice the Council caused to Mr B, the Council should, within one month of the final decision:
• apologise in writing to Mr B, and in addition to the £3,000 it has already paid, it should pay him a further £1,500 for the loss of amenity to him and his family;
• pay Mr B an additional £250 for the time and trouble he had to pursue his complaint before the Council properly assessed the approved development’s impact on the amenity of his property’s habitable rooms.
30. Within three months of the final decision the Council should also:
• remind its staff to ensure the layout of neighbouring properties and objections of planning applications are properly considered before it reaches its decision. This may include speaking with owners and tenants of neighbouring properties when this is required.

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Final decision

31. I have completed my investigation with a finding of fault which caused an injustice.

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Investigator's decision on behalf of the Ombudsman