Summary: Ms B complained that the Council failed to properly consider an application for planning permission for a development next to her property. We find the Council was at fault in that there were inaccuracies and omissions in the case officer’s report. However, we do not consider this affected the decision on the planning application. The Council has provided a satisfactory remedy for the injustice caused to Ms B.

The complaint

1. Ms B complains that the Council failed to properly consider an application for planning permission for a development next to her property. In particular, she says the case officer failed to consider relevant local plan policies and based his recommendations on inaccurate information. She says that, as a result, she has suffered overlooking and loss of privacy.

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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. 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 have considered all the information provided by Ms B together with information available via the Council’s website.
5. Ms 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 law and guidance

6. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
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, traffic generation and noise.
8. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Key facts

10. Ms B lives in a conservation area within an area of outstanding natural beauty (AONB). Her neighbour applied for planning permission for the demolition of an existing extension, construction of a new single storey extension and a loft conversion.
11. Ms B objected to the proposal, particularly the proposed dormer window in the rear elevation which would face her property. She said the height of the window and its proximity to her boundary would significantly reduce her privacy. She also argued that the window was unsightly and out of character within the AONB and the conservation area.
12. The case officer prepared a report for the delegated decision-maker. The report set out the main issues for consideration including design and visual amenity and impact on neighbours’ amenity. It summarised the objections received and addressed each of the issues. The officer recommended planning permission be granted subject to conditions. The delegated decision-maker granted planning permission.
13. Ms B complained to the Council. The area planning manager responded at stage 1 of the Council’s complaints procedure. She accepted there were errors in the officer’s report in that there was no reference to the North Northumberland Coastal Area Neighbourhood Plan or the emerging Local Plan. She apologised for this error and said the Council would provide further training to officers. But, despite the errors in the report, she was satisfied the case officer had made the correct decision on the application. He had considered the scale and massing of the proposed development, its impact on neighbouring properties and on the surrounding area and had decided the impact of the development would be limited and would not justify a refusal of planning permission.
14. At stage 2 the Director of Planning acknowledged that there were “a series of errors in the officer’s report” and apologised. However, it considered Ms B had not been disadvantaged by this as they did not affect the outcome of the application.

Analysis

Conservation area

15. Ms B says the case officer misunderstood what a conservation area is, placing emphasis on the natural, rather than the built environment.
16. At stage 2 the Director of Planning acknowledged that conservation areas are designated primarily in relation to the built environment and its setting but explained that the natural environment can form part of that setting. He accepted the case officer’s emphasis on the natural environment was inappropriate. But was satisfied that officers had properly considered the impact of the proposed development on the character and appearance of the conservation area.
17. The officer’s report referred to the Council’s Conservation Area Character Appraisal which discusses the characteristics of the conservation area in depth. Although the designation ‘conservation area’ aims to preserve and enhance a place with special architectural or historic interest to ensure its character and appearance is protected, it is clear from the Appraisal that the natural setting of the conservation area is of great importance.
18. I am satisfied that the case officer did consider the impact of the proposal on the built environment. He stated his view that the built environment and types of housing found within the conservation area was varied in nature and concluded that the proposals would not detract from the character of the conservation area.
19. Ms B says the case officer failed to consult the conservation officer. The Council has explained that conservation officers are not consulted as a matter of course on householder applications such as this.
20. There is no requirement for the Council to consult the conservation officer. So, there are no grounds to criticise the fact that the officer did not do so.

Dormer window

21. Ms B says the Council failed to consider the impact of the dormer window on her amenity, particularly in terms of overlooking and loss of privacy. She says the case officer failed to give reasons for not following the Berwick-upon-Tweed Borough Council’s Residential Extensions/Alterations guidance which states “the size and number of dormer windows should be kept to a minimum”.
22. In his report, the officer referred to neighbours’ concerns about the proposed dormer window. He stated, “the design of the proposed dormer is not particularly favourable” and accepted that smaller, pitched roof dormers were generally preferable to larger box dormers such as that proposed. However, he concluded that, despite this, the proposed dormer was broadly appropriate in scale and mass and remained subordinate to the main dwelling. It also aligned with ground floor windows and doors. The officer stated that other dormer windows existed in ‘the immediate local street scene’ so the window would not present an incongruous feature nor one which would harm the character and appearance of the local area. He therefore considered the proposed dormer window was acceptable. This was a matter for his professional judgement.
23. Although the guidance to which Ms B refers states that the size and number of dormer windows should be kept to a minimum, the Northumberland Coast AONB Design Guide provides examples of dormer windows that may be acceptable. Northumberland County Council’s Design Guide also allows dormer windows provided they are set into the roof slope and are set in from external walls.
24. Ms B disputes the officer’s statement that there are various other dormer windows within the ‘immediate street scene’. It is a matter for officers’ professional judgement as to what the ‘immediate local street scene’ is and it may not be obvious from public vantage points which properties have a dormer window as they are often situated on the rear elevation.

Separation distance

25. Ms B says the case officer used incorrect information when assessing the separation distance between her property and the proposed extension.
26. The officer’s report referred to Ms Bs’ concerns about overlooking and loss of privacy. It stated that usually a separation distance of approximately 21 metres was expected between rear facing elevations. The report stated that the separation distance between the rear of Ms B’s property and the rear wall of the proposed development was 26.48 metres. The officer stated that the distance between the rear of the proposed dormer window and the nearest habitable room windows in Ms B’s property would be “far in excess of 21 metres”. He considered that the extent to which the proposals would result in a loss of privacy and overlooking was not so severe as to warrant a refusal of planning permission.
27. In her stage 1 response, the area planning officer accepted that the separation distance provided by the applicant’s agent was incorrect and the distance was in fact, 21.25 metres. However, she was satisfied this was acceptable and would not result in a detrimental impact on Ms B’s amenity.
28. Although the incorrect distance was stated in the officer’s report, I do not consider this affected the Council’s decision. A separation distance of 21 metres is generally considered to be acceptable for facing windows of habitable rooms.

Failure to take into account relevant local plan policies

29. Ms B says the case officer failed to consider various local plan policies in his report.
30. The Council accepts that the North Northumberland Coastal Neighbourhood Plan should have been considered in the officer’s report. At stage 2, the Director of Planning confirmed that Policy 5 (Design in New Development)) should have been included in the report.
31. Policy 5 states that all new development should incorporate high quality design and demonstrate how:
• local context and character is respected; and
• the massing, height, scale and proximity of the proposed development does not result in adverse amenity impacts on existing or future residents.
32. The policy also refers to the Northumberland Coast AONB Design Guide which was also not referred to in the officer’s report. The design guide states that dormer windows are fairly common in the AONB. It says large flat roof box dormers are not acceptable but smaller types of dormer could be considered in certain positions. It provides examples of box dormers that are too large and examples of those which may be acceptable, particularly where there is still plenty of roof slope visible.
33. In addition, the Northumberland County Council’s Design Guide was not referenced in the officer’s report. This states that dormer windows should be positioned and designed to minimise the impact on the character of the area. They should be set into the roof slope and avoid appearing overly large by setting them in from external walls and should not exceed the height of the existing roof.
34. It was a matter for officers’ professional judgement whether the dormer window was acceptable. The case officer’s view was that it was broadly appropriate in scale and mass and remained subordinate to the main dwelling. He also stated that the dormer aligned with the ground floor windows and doors. He concluded it was acceptable in planning terms. I do not consider there are grounds to question that judgement given that, although the proposed window was a large box dormer, it was set in from the external walls and there was plenty of roof space visible as recommended by the guidance.

Failure to consider the emerging Northumberland Local Plan

35. No reference was made in the officer’s report to the emerging Northumberland Local Plan. The Council accepts that policies H0U 9 Residential Development Management and QOP 2 Good Design and Amenity would have been relevant to the application.
36. Policy H0U 9 states that proposals for household extensions must not have a significant adverse impact on the amenity of adjoining properties in terms of structural proximity or unacceptable loss of daylight/sunlight, privacy and visual outlook.
37. Policy QOP 2 says the design of the development should preserve the character of the area and ensure neighbours’ levels of privacy are not unacceptably harmed.
38. The emerging Local Plan was not adopted until March 2022, several months after the planning application was considered. At the time, consultation on the proposed main modifications had not yet been undertaken. So, the amount of weight that could have been afforded to these policies would have been limited. In any event, I do not consider these policies are significantly different to those set out in the Local Plan in force at the time. So, the failure to consider them did not affect the outcome.

Conclusion

39. I find the Council was at fault in that the officer’s report contained some inaccuracies and did not refer to all relevant local plan policies. However, I have seen no evidence to suggest that, but for the errors in the report, the decision on the application would have been any different. There is a presumption in favour of granting planning permission and the Council can only refuse to do so if there are material planning grounds on which a refusal can be based.
40. It is clear from the officer’s report what the material issues were. Material planning considerations include the impact of a proposed development on the amenity of neighbours, such as overlooking/loss of privacy. However, the test is not whether there will be any loss of privacy but, rather, whether the reduction in privacy will reduce neighbours’ amenity below a reasonable level such that it justifies a refusal of planning permission. This is a subjective test which depends on the character of the area and the nature of the proposed development.
41. While I accept Ms B does not agree with officer’s views, there are no grounds to question their judgement that any loss of amenity was not sufficient to warrant a refusal of planning permission.
42. Although I do not consider the shortcomings in the officer’s report affected the decision on the planning application, Ms B was put to the inconvenience of having to complain. I consider the Council’s apology, together with internal training and changes to its planning software and report templates, represents a satisfactory remedy for this injustice.

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Final decision

43. I find the Council was at fault in that the officer’s report failed to refer to relevant local plan policies and contained inaccuracies. I am satisfied the Council has provided a satisfactory remedy for the injustice suffered by Ms B as a result.
44. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman