Summary: Mr Y and Ms W complain about how the Council handled a planning application for a single-storey extension to the house next door. We do not find fault in the substantive matters complained about. However, the Council should apologise for some unnecessary comments made about Ms W.

The complaint

1. Mr Y and his partner, Ms W, complain about the Council’s handling of a planning application for an extension to the house next door. In particular, they say:
1. The Council did not consult them about the application and so they had no opportunity to make representations. The Council failed to consult again when the applicant submitted amendments.
2. The case officer’s report contained errors, including the height of the raised decking. The officer also failed to consider overshadowing and the impact on light into their rear garden.
3. The Council’s decision is not in accordance with local planning policies or the views of a local Councillor.
4. The Council failed to view the site from their garden to properly assess the impact.
2. Mr Y and Ms W say they have experienced injustice because the extension creates a significant loss of privacy, and they now feel uncomfortable when sitting in their garden.

Back to top

What I have investigated

3. I have investigated the complaint as summarised in paragraph one of this statement. During my investigation Ms W also raised concerns about the lack of a ‘Party Wall’ agreement. My reasons for not investigating this are explained in the final paragraph of this statement.

Back to top

The Ombudsman’s role and powers

4. 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 an organisation’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 an organisation’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)

Back to top

How I considered this complaint

6. During my investigation I discussed the complaint with Mr Y and Ms W by email and considered the information they provided. I also made enquiries of the Council and considered its response alongside the publicly available planning documents.
7. I considered the relevant planning regulations and guidance which I have cited where necessary in this statement.
8. Mr Y, Ms W and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What happened

9. The Council granted planning permission in 2020 for a single-storey extension to the property next door to Mr Y and Ms W. The application also sought to install a raised decking area and privacy screening to the rear, which the Council approved.
10. Around one month later, the applicants made a request for some minor amendments to the extension which the Council also approved.
11. Mr Y and Ms W raised concerns with their local Councillor in April 2021 when they witnessed the beginning of the building work. Mr Y and Ms W say they did not know the neighbours had applied for the extension, or that it had been approved, until the work started.
12. Dissatisfied with the lack of consultation, and their belief that the approved plans were not in accordance with national and local requirements, Mr Y and Ms W complained to the Council and then to the LGSCO.

Complaint a) consultation

13. Councils are required to give publicity to planning applications. The publicity required depends on the nature of the development. In this case, the statutory requirement was for a site notice or neighbour notification letter.
14. The Council has provided a photograph showing a site notice attached to a lamppost. I have compared the photograph against online mapping images and photographs of Mr Y and Ms W’s road. From this it is clear the notice was displayed near to the affected properties and on the closest situated lamppost.
15. I am satisfied that both Mr Y and Ms W had sight of the notice because a Councillor corresponding on their behalf confirmed, “… they were under the impression that the permission notice (which disappeared rather quickly) was for alterations to the front porch, which they would have had no problem with” and, “At the outset, [Ms W] was wrong not to have studied the plans submitted”.
16. Mr Y and Ms W disagree with these comments. They maintain they were aware of a possible garage conversion but not of the proposed extension or decking.
17. The Council says it dispatched notification letters to the relevant neighbours, including Mr Y and Ms W, via a third-party provider. The provider prints and dispatches the letter generated by the Council’s planning software which is set up to record the date and time of generation and the address to which it was sent. The Council’s records show that its system generated and printed neighbour notification letters for residents living either side of the development property at 14:14 on 7 September 2020.
18. Mr Y and Ms W maintain the Council failed to issue neighbour notification letters. They say they would have responded, in objection, had they received one. I have no reason to doubt this. However, the Council’s records show the letter was generated and printed for posting. Nobody can say with any certainty what happened to those letters after they were generated by the system. While I appreciate Mr Y’s views on this point, I cannot reach a finding of fault because there is not enough evidence for me to find, even on the balance of probabilities, that the Council failed to dispatch the letters as claimed.
19. In any event, I am satisfied the Council displayed a site notice in a suitable location near to the development site and therefore met the minimum statutory requirements for consultation, irrespective of the letter. Not only is there no fault, but there is also no injustice because Mr Y and Ms W were publicly notified of the application by site notice and had the opportunity to provide comments.
20. Turning now to the complaint about consultation for the amended plans. Section 96A of the Town and Country Planning Act (1990) allows planning applicants the option to submit applications seeking non-material (NMA) or minor-material amendments (MMA) once planning permission has been granted. There is no statutory definition of a non-material or minor-material amendment. However, the government’s ‘Planning Practice Guidance: Flexible Options for Planning Permissions’ says MMA “… is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved”.
21. In November 2020 the Council received an application seeking minor amendments to the previously permitted extension. The amendments were to:
• Reduce the floor area of the extension
• Change the roof to the rear elevation from pitched to flat
• Add a roof light to the north extension
22. The Council approved the application because the officer felt the amendments improved the design and did not create an adverse impact on the existing or neighbouring properties.
23. There is no requirement for councils to consult neighbouring properties upon receipt of MMA applications. I appreciate Mr Y and Ms W feel they should have been consulted about the proposed amendments because they believe the changes are not minor. However, I cannot challenge the merits of the Council’s decision to accept the application as a ‘minor amendment’. The revised drawings did not present any ‘substantial’ differences to the permitted scheme. In my view, there is no evidence of procedural fault by the Council, and I do not uphold this part of the complaint.

Complaint b) officer’s consideration of height and overshadowing

24. The purpose of the case officer’s report is to demonstrate the decision was properly made and due process followed. The courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
25. Mr Y and Ms W have concerns about the officer’s analysis of the decking height and the impact on their privacy. They also complain the officer failed to consider the national ’45 degree’ ‘base rule’ about loss of light.
26. I have considered the case officer’s report, which the Council confirms was also approved by its delegated panel. The report refers to the height of the proposed decking:

“the garden area of the property has a gradient, therefore decking is required in order to achieve a more usable space. Due to a fall in the land levels the decking is raised. Whilst the decking will be higher than the surrounding land this is required to meet the floor level of the proposed extension and the house”

27. The report goes on to say:

“our primary concern with this application is the impact the raised decking will have on the amenity of surrounding residents. That said, given that the rear garden slopes away towards the boundary, the height of the raised platform in relation to its neighbouring properties would be much lower. As the decked area is raised, there may be a material loss of privacy to its neighbouring properties above the existing mutual levels, as such the application has been revised to include two timber privacy screens to seek to mitigate any potential for overlooking”.

28. I agree that, when read in isolation, the sentence which says the decking will be “much lower” is not an accurate description of the proposal. However, when reading the paragraph as a whole and alongside the wording quoted in paragraph 26 of this statement, I am satisfied the officer knew the decking would be higher and that its use may impact on the privacy of neighbouring properties. There was no failure by the officer to consider this point and so I do not find fault.
29. I have also considered Mr Y and Ms W’s comments about the 45-degree guidance. Some councils may adopt guidance about the 45-degree rule within their own supplementary planning documents, referred to as ‘SPDs’. In such cases, the council would be expected to calculate the 45-degree angle from the centre point of the neighbour’s nearest main habitable room window to the extension.
30. The officer report does not refer to the 45-degree test. The test is guidance, rather than a statutory requirement, and it is for councils to decide whether to adopt it as policy. The Council does not have an SPD; instead its officers assess impact based on the circumstances presented in each planning application.
31. There is no requirement for the Council to undertake the 45-degree test so the absence of it within the officer report is not fault. Furthermore, when we asked the Council about this, it provided some further explanation about the dimensions of the approved extension compared to national permitted development rules:

“In considering the impact on the amenity of any nearby occupier, the assessment comes down to whether the 0.6 metres over the permitted development limitations has an unacceptable impact. The local planning authority did not consider the impact of the extension to have an unacceptable impact on the amenities of nearby occupiers”

32. Therefore, I am satisfied, when considering both the original assessment and the Council’s recent explanation, that the Council had enough information to determine that any alleged loss of light did not represent unacceptable impact which warranted refusal of the planning application.

Complaint c) local planning policies and Councillor views

33. Mr Y and Ms W say the Council failed to consider Local Plan Policy HC8 which requires the Council to “ensure the extension does not adversely affect your neighbours amenities”.
34. The case officer’s report refers to policy HC8. As the previous section of this statement sets out, I consider the officer’s report is adequate in explaining their reasons for the decision and whether the amenity of others is affected. I therefore do not find fault on this point.
35. I have also considered Mr Y and Ms W’s complaint about the Council’s failure to consider members’ views. It was open to the Councillors in question to respond to the planning consultation if they had concerns about the proposal. I note they did not. The Council has since corresponded with one of the local Councillors about the development. There was no requirement for the members to be personally consulted or for their views to be considered as parts of the Council’s assessment and so I do not find fault on this point either.

Complaint d) failure to assess impact from garden

36. In March 2021 a local Councillor contacted the Council on behalf of Ms W to raise concerns about the plans. The Councillor asked an officer to arrange a site visit to view the impact from the garden of Mr Y and Ms W. The Council allocated the query to a planning enforcement officer who visited the site on 15 April 2021.
37. An email sent from the Councillor to the officer expressed concern about:
• a lack of courtesy for not assessing the impact from the property of Mr Y and Ms W
• a lack of neighbour notification
• loss of light
• privacy screens will block further light
38. The officer responded to confirm:
• during the visit they did not witness any breaches of planning control
• the neighbours did not object to the planning application, and this cannot be changed
• the decking area is not yet built but the owner is aware it must be constructed in accordance with the plans
• there is no requirement for officers to visit the neighbour
39. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using photographs and other tools. Furthermore, there is no requirement for enforcement officers to view an alleged breach of planning control from the complainant’s land.
40. While I appreciate Mr Y and Ms W would have preferred for an officer to visit them, there was no requirement for the visit and so I do not therefore find fault.

Internal correspondence

41. I am concerned the officer’s language about Ms W is, at times, inappropriate and unprofessional. When discussing the case with the Councillor, the officer refers to Ms W as being “over the top” and accuses her of “harassing” the neighbours. I do not consider these comments are justified and, in any event, they are unprofessional and unnecessary.
42. The Council will take the action I have recommended in the section below.

Back to top

Agreed action

43. Within four weeks of my final decision, the Council will apologise to Ms W for any upset which may have been caused when she read the internal correspondence. The Council will remind its officers about the importance of using appropriate language when discussing cases.

Back to top

Final decision

44. I have completed my investigation. I do not find fault in the substantive matters complained about, but the Council should apologise for some unnecessary comments made about Ms W.

Back to top

Parts of the complaint that I did not investigate

45. I have not investigated Mr Y and Ms W’s concerns about the Council’s role in ensuring their neighbour had a Party Wall Agreement. This is because any problems arising from the absence of an agreement, for example damage to property, would normally be a matter for private legal action by the property owner against the neighbour. The Council has no part to play in this agreement and it is not a requirement for planning permission.

Back to top

Investigator's decision on behalf of the Ombudsman