Summary: The complainant said the Council failed to properly consider his neighbour’s planning application for an extension which would cause loss of amenity to his property. We found fault but it did not cause the complainant injustice.

The complaint

1. The complainant (Mr X) says the Council’s failings when considering his neighbours’ planning application will result in the loss of amenity to his property by reduced light to the only window in his kitchen and dining room as well as overbearing.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I talked to Mr X’s representative, read the complaint and all the documents attached. I also read the Council’s response to the complaint and considered documents from its planning files, including the plans, case officer’s report and a planning decision.
5. I reviewed “Extending Your Home” Supplementary Planning Document (SPD) and Wyre Council Statement of Community Involvement.
6. Mr X 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 law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Before planning decisions are made, council planning case officers often write reports to set out their views and recommendations to inform the decision maker. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
11. However, 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.
12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.

What happened

14. Mr X’s neighbour applied for planning permission to build a house extension. Part of the extension would stretch along the boundary between Mr X’s and the neighbour’s property, replacing the garage placed there but significantly extending the footprint to the front and rear of the main building.
15. Before considering the planning application the Council formally consulted with Mr X. At the time Mr X was dealing with ill health of a very close family member and failed to respond to this consultation.
16. The Council approved the application. The decision notice included a description of the proposed extension and consideration of its impact on Mr X’s property.
17. Mr X was unhappy with the decision and complained to the Council. He raised factual and consequential errors:
• The only window in the east-facing elevation of Mr X’s property does not have, as stated in the case officer’s report, obscure glazing but has clear glass. Mr X claimed this error meant that when deciding to approve the planning application the Council must have considered a room with this window as non-habitable and failed to properly assess the impact of the proposed extension. In fact the window in the eastern elevation of Mr X’s property leads to his kitchen and dining room which is a habitable room.
• Description of the proposed extension as replacing the existing garage which already sits on the boundary with Mr X’s property. Mr X considered this statement misleading as suggested the same footprint of the new extension as the existing building.
• The conclusion the proposed extension would not result in such significant loss of light to Mr X’s window or overbearing to warrant a refusal of the application. In Mr X’s view the Council based this conclusion on the false premises which meant it was flawed.
18. In its Stage 1 response to the complaint the Council accepted its error in describing the window in the east facing elevation of Mr X’s house. It claimed, however, this error did not affect its assessment of the impact of the extension on Mr X’s property. The Council referred to the presumption for sustainable development unless any adverse impact would significantly and demonstrably outweigh the benefits. It explained how it applied the SPD but also referred to recent appeal decisions allowing different treatment of the windows in side elevations. The Council confirmed it considered the proper size of the extension as described in the case officer’s report. By referring to the garage it said it alluded to the fact, there was already a building on the boundary.
19. As part of the Council’s Stage 2 complaint process, the Council’s Senior Officer visited Mr X’s property and interviewed the Council’s officials involved in the planning application. He said even if Mr X had raised objections to the planning application, the result of the application would have been the same. It is very likely, however, there would have been more details in the case officer’s report of the Council’s reasons for not considering the impact on Mr X’s property significant enough to refuse the application. Stage 2 response confirmed the Council’s position that ultimately the impact of any property extension on a neighbouring property is a matter of professional judgement.

Analysis

20. We are not a planning appeal body to the judgements and decisions councils make. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused injustice to the complainant.
21. Before the Council made its planning decision, it considered the plans, relevant policy and sent a consultation letter to Mr X.
22. As Mr X did not raise any objections, in her report the Case Officer in general terms referred to the impact of the proposed extension on Mr X’s property.
23. To properly decide Mr X’s complaint, I need to address the following issues:
• Would there have been a different assessment of the extension impact (light and overbearing) on Mr X’s property if the Case Officer correctly described the window in the eastern elevation of his property as clear glass;
• Was a description of the extension replacing the garage misleading and might have affected the Council’s decision;
• Implications of the Council’s planning guidance and scope of the Council’s discretion.
24. The Council accepted its fault in describing the window on the east facing side of Mr X’s property. When determining whether this fault caused Mr X injustice I need to examine its potential impact on the Council’s decision.
25. There are no distinctive processes of assessing light and overbearing impact for non-habitable and habitable rooms. The Council is not required to carry out 25- and 45-degree tests for the windows on side elevations when planning application relates to a single storey extension, irrespective of whether they lead to habitable or non-habitable rooms.
26. I cannot, therefore, conclude the wrong description of the window which might have resulted in treating the room with this window as non-habitable, would have impacted the result of the assessment.
27. The presumption for the sustainable development allows the Council to refuse the planning application only if the extension impact on the neighbouring property would significantly and demonstrably outweigh the benefits.
28. Because there are no distinctive assessment processes for non-habitable and habitable rooms, in view of the Council’s responses to Mr X’s complaints, it seems unlikely the correct description of the window would have affected the conclusions of the decision. I do not, therefore, consider the fault of the wrong description of Mr X’s window potentially leading to treating the room with this window as non-habitable, significantly affected the outcome of the process and caused Mr X injustice.
29. The proposed extension is correctly described in the case officer’s report, with the correct measurements to the front and the rear of the property. This is also reflected in all the plans attached to the planning application. The phrasing in the part of the case officer’s report about the amenity impact is ambiguous and might be understood as if the proposed extension would have the same footprint as the garage it was replacing. As it was only part of the report, however, and would have been considered together with the rest of the document and plans of the proposed extension, it is unlikely it would have affected the Council’s decision.
30. The Council has discretion on how to apply its policy and guidance. It decides what weight to give to different planning considerations. In considering its policy and guidance, it should not treat them as if they create binding rules that must be followed.
31. In its Stage 1 response the Council explained how it applied the SPD when assessing the impact on Mr X’s amenities and justified any departures from the guidance. At no stage of the process the Council claimed there would be no impact on the amenities of Mr X’s property but decided it would not be significant enough to demonstrably outweigh benefits of the extension. This is a matter of professional judgement. We cannot criticise merits of the Council’s decision.
32. While I recognise Mr X disagrees with the decision the Council made, I cannot say, based on the evidence I have seen, the fault identified in the application process would have impacted the outcome and caused Mr X injustice.

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Final decision

33. I have now completed this investigation and closed the complaint. The fault found in the way the Council considered the planning application did not cause Mr X injustice.

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Investigator's decision on behalf of the Ombudsman