Summary: Mr and Mrs B complain about the Council’s consideration of a planning application for an extension to their neighbour's property. They say they suffer from a loss of light and outlook and the building work has encroached on their property and caused damage. We have found no fault in the Council’s consideration of the application and the remaining issues are civil matters between neighbours.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs B, complain the Council failed to properly consider a planning application for a two-storey extension to their neighbour's property.
2. Mr and Mrs B say because of the Council's fault, they suffer from a loss of light and outlook and the building work has encroached on their property and caused damage which has reduced its value.

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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. 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)
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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I read the papers provided by Mr and Mrs B and considered information available on the Council’s planning website. I have explained my draft decision to Mr and Mrs B and the Council and considered the comments received before reaching my final decision.
8. Although the decision on the relevant planning application was made in November 2019 which is more than 12 months ago, I have used the discretion available to me to accept a late complaint. This is because I am satisfied there were good reasons Mr and Mrs B did not make a complaint to the Ombudsman sooner.

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What I found

Background and legislation

9. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
10. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
12. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Key events

13. Mr and Mrs B’s property is a bungalow with an unusual orientation in that the front of the property faces away from what was a track at the time and now a road. Originally the bungalow was the only property at this location and the living room windows looked across an open field. The two windows are to the side of the property (as viewed from the road). The property has two bedrooms and these are the windows that face the road. There is now an extension to the rear of the property as viewed from the road.
14. A house has since been built next to Mr and Mrs B’s bungalow which impacted these two windows in terms of light and outlook.
15. Mr and Mrs B say there were not happy about this development at the time but accepted the decision. This application is not the subject of this complaint. For completeness, the Ombudsman would not accept such a complaint now about this older application due to the passage of time.
16. The Council received an application to build a two-storey side extension at the neighbouring house in September 2019. The Council publicised the application and Mr and Mrs B made representations in September . These included hand drawn plans from Mr B which do not show any doors or windows between the living room and conservatory (see below). They also show the original layout of the property which appears to show a rear window to the property. Mr B’s covering letter says they have only two windows to the living room.
17. The case officer’s report for the application sets out the relationship between the two properties and provides a summary of the information provided by Mr and Mrs B and their objections to the proposals in terms of further loss of light and outlook. This made clear the two windows were now the only windows to this habitable room and were in close proximity to the proposed extension. The case officer accepted the proposals would mean a loss of light to this habitable room but noted the construction of Mr and Mrs B’s own extension appeared to have removed what they considered to be the principal window to the living room and the other two windows would have originally been secondary. The case officer considered it was not reasonable for Mr and Mrs B’s previously built extension to prevent any development of the applicant’s property. The case officer did not consider the impact on Mr and Mrs B’s property to warrant refusal of the application when taking this into account with the level and orientation of the bungalow. The Council granted planning permission subject to condition.
18. During the construction of the extension Mr and Mrs B raised concerns about encroachment and damage to their property by the developer. There was involvement of a Party Wall Act surveyor. Mr and Mrs B also invoked their right to light during this period. The extension as built is one storey as opposed to the two storey permitted.
19. The Council subsequently visited Mr and Mrs B’s property and noted there is a double glass door with side windows between the living room and constructed conservatory which provides light to this room. The Council has provided a photograph of this room. The Council considers this supports its view there was a window previously in this location.

My consideration

20. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
21. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding to grant planning permission. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations including Mr and Mrs B’s representations and information when doing so. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.
22. Mr and Mrs B raised a specific concern about the case officer not visiting their property during the site visit. I should explain that case officers are not obliged to carry out site visits before deciding on a planning application. Officers will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.
23. I should also say that a grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation or repair damage caused by the acts or omissions of private individuals.
24. The issues of encroachment and damage are matters for private legal action by Mr and Mrs B against the neighbour. It may be possible to obtain independent legal advice about this under their home insurance policy.

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Final decision

25. I have completed my investigation as I have found no evidence of fault in the Council’s consideration of the planning application. The issues relating to encroachment and property damage are civil matters between the neighbours.

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Investigator's decision on behalf of the Ombudsman