Summary: Mr and Mrs B complain about the way the Council considered planning applications for development to their neighbour’s home. Mr and Mrs B say the development was larger than allowed in a green belt area. They say that to prevent loss of privacy they have needed to grow trees in their garden much higher, which in turn blocks light. They say the property is overbearing. At this stage, we find fault in how the Council considered the impact on the greenbelt and that this caused an injustice to Mr and Mrs B. However, we do not find fault in how the Council considered the impact on Mr and Mrs B’s amenity.

The complaint

1. The complainants, who I refer to as Mr and Mrs B, complain the Council approved planning permission for development to their neighbour’s property, based on incorrect measurements. They say the Council did not properly consider whether special circumstances were needed to build an extension of this scale in a green belt area. They say it was necessary to grow their trees higher, which blocks light in the late afternoon. They say the height of the property is 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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
   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)

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How I considered this complaint

4. I considered the information Mr and Mrs B provided and spoke to them about the complaint, then made enquiries of the Council. I sent a copy of my letter to Mr and Mrs B and the Council for their comments before making a final decision.

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What I found

Law and Guidance

5. Planning permission is required for the development of land (including its material change of use).
6. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
7. 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, loss of light and outlook.
8. Some areas of land designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
9. Government guidance sets out exceptions to restrictions on development in the green belt, which include:
• The extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the additional building
• The replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces
10. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.
11. The Town and Country Planning (General Permitted Development) (England) Order 2015, sets out a schedule of permitted development rights. It separates the type of development into classes, including the following:
• Class A – enlargement, improvement or other alteration of a dwelling house
• Class E – buildings etc incidental to the enjoyment of a dwellinghouse
12. Class A says an enlargement is not a permitted development if it extends beyond the side elevation and would exceed four metres in height, have more than a single storey or have a width greater than half the width of the original dwellinghouse.
13. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
14. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Background

First application

15. In late 2020 the Council approved planning permission for an extension to the home of Mr and Mrs B’s neighbour. The extension included a one storey infill between the existing house and garage, the floorspace for which was 19m2. It also included changing the existing garage roof to a pitched roof, and partially converting it to an annex. This would not increase the floorspace of the garage building but would make it higher and increase the volume.
16. The Council’s delegated report said there had been other extensions in the past. It said the original building had a floor space of 186m2. Previous extensions increased this by 74m2. Therefore, the 19m2 would mean overall extensions of 93m2, representing a 50% overall increase. The report said this was not an ‘inappropriate development’ in the green belt.
17. Initially the plan included a first floor, outside patio area. Mr and Mrs B objected to this on the basis it would cause overlooking. They did not object to the other parts of the development. The neighbour submitted revised plans that did not include the patio area.
18. The report found there would be no undue overlooking, overshadowing or overbearing impact from the development on Mr and Mrs B’s home. The Council approved the application.

First enforcement investigation

19. In mid-2021 Mr and Mrs B raised concerns with the Council that the works taking place were not in line with approved plans. They said the plans said an infill would connect to the existing garage. However, the neighbour had demolished the garage and built a new one at a different ground level. They said the plans showed the floor of the garage would be 40cm above ground level. However, the brick work completed, which represented where the floor would be, came to roughly 1400cm above ground level. Therefore, the building would be much higher than approved.
20. The Council visited the site and found the building work was not in line with the approved plans. It wrote to the neighbour instructing them to cease work.

Second application

21. The neighbour submitted a further planning application. Instead of changes to the existing garage and infill, this applied to demolish the garage and construct a one storey extension from the side and rear of the existing house, extending over the area the garage and infill would have been. The extension would have a low-pitched roof. Amendments then included a raised patio area at the rear. It would contain habitable rooms, including a bedroom with ensuite bathroom.
22. Mr and Mrs B objected to the new plans. They said the drawings did not truly represent the height and scale of the building. They said the plans still did not accurately represent the land levels and, next to their home, would be equivalent to being a metre higher than a normal two-storey building. Even with a tall hedge on the boundary, the patio would overlook their property. They also said the garage was not part of the original building. They said it was built in 1998 but not in line with planning permission. The owner was now converting this to be fully habitable and the floorspace compared to the original building had increased by 137%.
23. The Council agreed the plans did not accurately reflect the levels. It asked the neighbour to revise the plans.
24. Mr and Mrs B provided further comment on the revised plans. They said the levels were still incorrect as they showed a figure of 1000mm from ground level to floor level at the rear corner, when in fact it was 1350mm. They said this was critical as it was where the raised patio would be, and this would overlook their garden.
25. The Council approved the application. Its delegated report said that while the extension would be on a similar footprint to the former garage block and approved link extension, it would be classed as an addition to the original building. It said the cumulative additions would be disproportionate, over and above the size of the original building. Therefore, it would be inappropriate development in the greenbelt.
26. The report considered whether there were very special circumstances to grant approval. It found that it was material that the proposed extension was similar in size and scale to the development that was previously approved. It said this provided very special circumstances, which outweighed the harm to the greenbelt.
27. The report considered the impact on Mr and Mrs B. It said that changes in ground levels meant the overall scale of the building would appear greater when viewed from Mr and Mrs B’s side. However, it did not consider the proposed extension would appear overly dominant. It mentioned ‘existing robust boundary treatment’ between the properties. It said any loss of direct sunlight would be limited to the later part of the day and to the side garden and side elevation only. It attached a condition to obscure glaze a window on the side elevation to prevent unacceptable levels of overlooking. It said any overlooking from the rear of the extension would be limited to the rear part of Mr and Mrs B’s garden.
28. The Council found the proposals did not cause unacceptable harm in terms of loss of privacy, overshadowing or light and would not appear overbearing. It approved the application in late 2021.

Second enforcement investigation

29. In early 2022 Mr and Mrs B complained the works were still not taking place in line with approved plans. The Council visited and found the works elevations were not at the correct lengths and a window did not match that in the approved plans. It asked the neighbour to either build the extension in line with the plans or submit a further application.

Complaint

30. Mr and Mrs B also made a complaint about the way the Council considered the second application. They said the Council had ignored their comments that the plans still showed the wrong levels and accepted what it said on the new plans without checking. They said the Council was wrong to say there was already robust boundary treatment. In the place the patio would be there was only a hedge that would not prevent overlooking. They said the new application was in no way similar in scale or size to that previously approved due to the significantly increased height of the building and included a raised patio. The Council did not uphold the complaint.
31. Mr and Mrs B escalated their complaint to stage two of the Council’s procedure. The Council did not uphold the complaint at the second stage.

Third planning application

32. In early 2022 the neighbour submitted a further planning application. During the course of this application Mr and Mrs B was in regular contact with the planning officer and raised their concerns about the height of the patio.
33. The delegated report for this application considered the impact on the greenbelt. It said the property had been significantly extended in the past and therefore it was likely the proposal would result in a significant expansion over and above the Council’s 50% practice guideline. It found this was an inappropriate development in the greenbelt. However, again it said there were very special circumstances to allow the application. It said this was because an extension of a similar scale would be allowed under permitted development rights, and previous applications had been approved for a similar level of development.
34. The report said the patio had been reduced during the course of the application, away from the side elevation and a timer privacy screen installed along the length of its eastern edge.
35. Mr and Mrs B say the planning officer accepted the patio, as agreed in the previous application, would cause overlooking. They say it is only through luck that the neighbour was not building the extension correctly, and had to submit a further application, that measures were put in place to mitigate that overlooking. They say that to prevent overlooking completely, they have needed to grow the hedges on their boundary taller, which in turn blocks out light. They say their garden has lost sunlight at the end of the day as a result. They also say the development is overbearing as it is close to the boundary, and taller than what a normal two storey building would be, when compared to their home.

Findings

36. Mr and Mrs B’s main concern is that the development allowed over the three applications has had a detrimental impact on their amenity, in terms of a loss of light and outlook. This would also have included privacy had they not grown the hedges to a taller height, which in turn impacts light. They also raise concerns the Council did not properly consider the impact on the greenbelt. I have therefore set out my findings under the following issues, and considered how the Council addressed these issues across the three applications:
• Impact on the greenbelt
• Impact on Mr and Mrs B’s amenity

Impact on the greenbelt

37. The NPPF does not specify what an inappropriate development is, in terms of a specific increase in size. The Council says it has an unwritten rule of thumb that more than a 50% increase is likely to be inappropriate. It is not clear whether this means a 50% increase in area of land, floor space or volume.
38. The first application report identified that past extensions, plus the small infill (not including alterations to the garage) amounted to a 50% increase from the original building. I understand Mr and Mrs B believe this was fault as it did not acknowledge that the garage itself was extended much further, without authorisation, in the past. They say the overall increase in footprint, compared to the original, was therefore far much larger than this.
39. I checked the measurements of the overall floor space of the building, including the garage, as approved by the first application, using the online measuring tool. This appeared to total roughly 430m2. This is made up of roughly:
• 180m2 for the ground floor of the house (including infill)
• 150m2 for the first floor of the house
• 100m2 for the garage building
40. That would represent a 130% increase in floor space, compared to the 186m2 figure given for the original building.
41. I made that measurement based on the floor space over two storeys of the building. If I had based it purely on the land the area covered, so ground floor with infill and garage, it would have been 280m2. This is a roughly a 50% increase on the 186m2 figure. It is not entirely clear how the officer reached their calculations. But it appears this must have been based on the area of the land the building covers, rather than the overall floorspace or volume of the building.
42. I also checked the initial 186m2 measurement. The original building consisted of a house and small garage. The section of the house that the original house filled appears to have covered an area of around 100m2 at most. The original garage appears to be, at most, 30m2. This would make the original footprint, at most, 130m2, not 186m2. In that case the 280m2 would be a 115% increase on an original 130m2. Even if my measurements are slightly out, it is likely there was an increase of significantly more than 50% over the original size.
43. Based on the above it appears the original decision was not based on a correct measurement of the increase in size compared to the original building.
44. The second application found the increase was an inappropriate development in the greenbelt. The only special circumstances on which it was approved the application were that it was of a similar scale and size to that already approved, based on the incorrect calculations.
45. If the Council meant it was a similar scale in terms of the land area covered, I would not be able to criticise this. It is for the Council to make judgements about the impact on openness. However, this is not entirely clear, and I note the volume and height of the approved development increased significantly compared to the first application, due to the correction of the land levels.
46. In the third application, the Council said it was a significant expansion over 50%, but that volumetric expansion is only a guide. Council officers go by a rule of thumb that more than 50% expansion is inappropriate. But one officer is referring to expansion in terms of volume, while the original officer used cubic metres. It is relevant that the volume had increased again for this application due to a further correction of the land levels.
47. I note that relevant case law has found volume is relevant to openness of the greenbelt. It is for the Council to make decisions in each case and the relevant factors may be different in each case. The NPPF does not require councils to have their own written guidelines. In the absence of specific guidelines, it is normally for officers to make their own judgements on whether the development is inappropriate. However, the Council should be consistent in its decision making. Council officers generally followed unwritten rule that more than 50% increase was inappropriate. All the applications referred to this standard. However, the methods by which it measured the scale of expansion were not consistent over the three applications relating to the same property. I find this was fault.
48. On balance, I find that, but for the fault, it is very unlikely the Council would have approved this application. The second and third applications clearly identified the level of development was inappropriate in the greenbelt. The only special circumstances were that it had already approved a similar scale of development based on incorrect measurements. There was a lack of clarity and consistency on whether it based the scale on land area, floor space or volume. And the volume increased significantly over the applications due to corrected land levels.
49. The third application also referred to permitted development rights as a potential special circumstance. However, it said this was because a Class E building of a similar size could have been a permitted development. But the extension here was not Class E, it was Class A. The law specifically says this extension was not permitted development under Class A as it was far more than half the width of the original house, beyond the side elevation, as outlined at Paragraph 12. On balance, I believe it is very unlikely the Council would apply, or has applied, this reasoning to all other, otherwise inappropriate developments in the greenbelt. It is not a reason the Council gave to justify approval in the first or second application.

Impact on Mr and Mrs B’s amenity

50. Mr and Mrs B did not raise concerns about the impact of the first application, except for the rooftop patio which was removed. They raised concerns in the second application as by this time it was apparent the land levels were not correctly represented in the initial plan, meaning the building was higher, and it included a raised patio that they were concerned would overlook their property.
51. On balance, I have not found fault in how the Council considered the impact on Mr and Mrs B’s amenity.
52. The report acknowledges the scale and height of the building would appear greater from Mr and Mrs B’s property. However, it did not consider it would be overly dominant. I understand Mr and Mrs B raised concerns that the updated plans were still not correct in terms of the levels. However, the Council was satisfied the new levels were accurate. If the building eventually sat higher than the levels indicated on the plan, this may have been an enforcement consideration.
53. The report also acknowledged that sunlight would be lost but that this would be limited to the end of the day. I cannot find the Council should have rejected the application based on any impact on amenity. The Council needed to consider whether the level of impact was acceptable, and, in this case, it found the level of loss of light was acceptable. I cannot question the merits of the Council’s decision.
54. It is difficult to make a finding on whether the Council properly considered loss of privacy in the second application. The report says that due to robust boundary treatment any overlooking would be towards the rear of the garden. Mr and Mrs B has provided photographs that show the hedge close to the patio area was lower and which suggests there may have been more overlooking than the report indicated. However, I cannot say for certain how much overlooking there would have been or whether the Council would have made a different decision had it acknowledged this.
55. As it is, during the third application, the Council asked the neighbour to include a privacy screen next to the patio. This may in of itself suggest the second application did not adequately address the loss of privacy. I also appreciate it is only by luck that a third application was necessary, and the screen included. However, the screen is a requirement of the third planning approval and is there to protect privacy. The third application found the development did not cause unacceptable harm to Mr and Mrs B’s amenity and I cannot see evidence of fault in how the Council considered this application. The plans for the third application reflect what should be built, and any deviation from this would be an enforcement consideration. Therefore, I cannot find there is a significant injustice to Mr and Mrs B caused by loss of outlook, light or privacy.
56. I understand Mr and Mrs B have grown their hedges higher to protect privacy. However, I need to consider this in the context that the Council found the privacy screen would be sufficient and that a loss of privacy to lower parts of the garden was not unacceptable. If I had found fault, I would not have been able to recommend the Council revoke planning permission and would have considered recommending the Council pay for planting along the boundary in any case.

Complaint response

57. Mr and Mrs B say the Council delayed in responding to their complaint. They say the Council made a false statement to say they agreed to the extension of time to respond. They say it was important to receive a response within the timeframe set out in the Council’s procedures, because of the limited time available to bring a judicial review.
58. I do not find fault in delay in the complaint response. The Council’s policy sets out timescales within which to respond. However, it can extend these if necessary. I understand there was a miscommunication in which the Council indicated Mr and Mrs B agreed to the extension when they did not. However, I cannot see evidence this was a deliberate false statement, and the Council could have extended the response without agreement.
59. In any event, I would not be able to find the delay of ten days caused significant injustice to Mr and Mrs B. I understand there was a limited time within which to bring a judicial review. However, Mr and Mrs B could have brought judicial review without having received the complaint response. A judicial review would seek to overturn the decision based on it being wholly unreasonable and so is separate to what could be achieved through the complaint process.

Consideration of remedy

60. I have found fault in the way the Council considered the impact on the greenbelt and that, but for the fault, it is unlikely to have approved an extension of the same scale.
61. I considered whether this caused a direct injustice to Mr and Mrs B. Their main concern is about the impact on their amenity, in terms of loss of light, outlook and privacy. The impact on amenity is a separate consideration to the impact on the greenbelt. Had the Council restricted the size of an extension based on consideration of the greenbelt, it may have had the effect of lessening the impact on Mr and Mrs B’s amenity. But the Council considered the impact on Mr and Mrs B’s amenity separately in its reports. It found the extensions did not cause an unacceptable impact on neighbouring amenity. I have not found fault in how it considered this. Therefore, I cannot find the fault led to an unacceptable loss of amenity to Mr and Mrs B.
62. However, the fault caused distress to Mr and Mrs B and concern that a building identified as an inappropriate development in the greenbelt, was approved due to mistakes in the planning process. They also spent time and trouble bringing their complaint. I therefore recommend the Council pay Mr and Mrs B £200 to recognise the distress and time and trouble caused.
63. In response to my initial draft decision the Council said it would:
• Add a requirement to its Local List requirements for agents and applications to submit a volume calculation (proposed and existing) for all greenbelt applications.
• Train its technicians in volume calculations so they can sense check this against the agent’s calculations.
64. I agree these are practical steps the Council can take to improve its service going forward. It is encouraging the Council has itself suggested these improvements. I have added these to the recommendations in this statement, to give a timeframe for completion.
65. I have also added a further recommendation, to address the issue of how the Council measures the scale of development in the greenbelt. I understand this is currently not a written guideline and there is no obligation under the NPPF to have such guidance. I also note the above service improvements all refer to volume, which suggests this is the measure the Council intends to use going forward. However, to ensure consistency, I recommend the Council:
• Produce internal guidance for its officers relating to how it makes decisions on whether extensions in the greenbelt are inappropriate. The guidance should make it clear how officers will calculate percentage increases, for example by area of land the building covers, overall floor space, or volume.

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Agreed actions

66. The Council has agreed to, within a month of this decision:
• Apologise to Mr and Mrs B for the fault in how it considered the impact on the greenbelt when deciding the application
• Pay Mr and Mrs B £200 to recognise the distress and time and trouble caused
67. The Council has also agreed to, within three months of the decision:
• Add a requirement to its Local List requirements for agents and applications to submit a volume calculation (proposed and existing) for all greenbelt applications
• Train its technicians in volume calculations so they can sense check this against the agent’s calculations
• Produce internal guidance for its officers relating to how it makes decisions on whether extensions in the greenbelt are inappropriate. The guidance should make it clear how officers will calculate percentage increases, for example by area of land the building covers, overall floor space, or volume

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Final decision

68. The Council is at fault in how it considered the impact on the greenbelt and that this caused an injustice to Mr and Mrs B. However, there is no fault in how it considered the impact on Mr and Mrs B’s amenity.

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Investigator's decision on behalf of the Ombudsman