Summary: Mr B complained the Council, in granting planning permission for a development next to his property, failed to properly consider how it would impact on his amenity. The report for the application contains an inaccuracy which affected the Council’s consideration of the impact on Mr B’s kitchen and the Council failed to consider the impact on Mr B’s solar panels. That did not likely affect the outcome. An apology, payment to Mr B and training for planning officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council, in granting planning permission for a development at a neighbouring property, failed to consider how the development would impact on his amenity.
2. Mr B says as a result of the grant of planning permission he has lost light to his kitchen/dining room and his solar panels will be less effective during the winter.

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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. 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)
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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B and the organisation 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

What should have happened

8. All decisions on planning applications must be made in accordance with the Council’s development plan, unless material considerations indicate otherwise.
9. 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 but do not include right to light as that is a civil matter.
10. A legal judgement in 2019 (McLennan, R (on the application of) v Medway Council & Anor [2019] EWHC 1738) concluded that interference with solar panels is a material planning consideration by reason of the part played by them in addressing (however modestly, on an individual scale) issues of climate change.

What happened

11. Mr B lives next to a property that applied for planning permission for various extensions. The proposal included increasing the height of a garage on Mr B’s boundary. Mr B objected to the application and raised concerns about loss of light to his kitchen/dining room and the impact the increased height would have on his solar panels.
12. The Council told the applicant it would likely refuse permission for the application due to the impact on Mr B’s amenity. In response the applicant provided amended plans. The Council consulted Mr B on those plans and he again objected, referring to the impact on light to his kitchen/dining room. The Council granted planning permission for the development.

Analysis

13. Mr B says the Council, in granting planning permission for a development at an adjacent property, failed to consider how the development would impact on his amenity. Mr B says the Council failed to take into account the impact the development would have on light to his kitchen/dining room and how the development would impact on his solar panels.
14. In terms of the impact the development would have on light to Mr B’s kitchen/dining room I am satisfied this was addressed in the report for the planning application. The report says though the officer did not consider there would be a significant harmful impact on Mr B’s amenity on the basis Mr B had a second window providing light to his kitchen/dining room. It is now clear this is inaccurate as the second window the report is referring to is the window to a bedroom area which is sectioned off from the kitchen. As a result, the second window does not provide any additional light to the kitchen/dining room. Given the report suggests the officer considered the existence of the second window providing light to the kitchen/dining room was material to whether there would be a harmful impact on Mr B’s amenity I would have expected the Council to confirm that point with Mr B before completing its consideration of the application. Failure to do so means the assessment of the impact the development would have on Mr B’s kitchen/dining room is flawed. That is fault.
15. However, Mr B has confirmed there is a secondary source of light to his kitchen/dining room. Mr B says as part of the planning permission for his property he was required to install a skylight to provide additional light to the room. As there is a secondary source of light and the Council was relying on there being a secondary source of light, albeit from a different position, I do not consider it likely if the Council had properly understood the layout of Mr B’s property it would have changed the decision on the application. So, while I consider the Council at fault for including incorrect information in the report for the application I do not consider it likely this affected the decision to grant planning permission.
16. In reaching that view I recognise Mr B says he has a right to light for his kitchen/dining room. As the Council has explained to Mr B, when considering a planning application it can only consider material planning considerations. Loss of light is a material planning consideration. However, a right to light is not. That is because a right to light is a civil matter which can only be pursued by an individual through the courts. I therefore cannot criticise the Council for failing to take into account whether Mr B’s kitchen/dining room had an established right to light.
17. The report did not discuss how the development would impact on Mr B’s solar panels though. The Council suggested when responding to Mr B’s complaint that he had not raised concerns about how the development would impact on his solar panels. However, that is not accurate. Mr B did not refer to the impact the development would have on his solar panels when commenting on the amended plans for the application. However, Mr B had raised concerns about the impact the development would have on his solar panels when commenting on the first set of plans. I appreciate the Council has pointed out the report is not intended to be exhaustive and to cover every possible issue. However, the legal judgement referred to in paragraph 10 makes clear the impact a development will have on solar panels is a material planning consideration. Given that, plus the fact the Council now accepts it is possible the development will have an impact on Mr B’s solar panels during winter months, I would have expected the report to address that issue. Failure to do so is therefore fault.
18. The Council has now explained its view about the impact the development will have on Mr B’s solar panels. The Council’s view is that due to the orientation of the solar panels it is likely they will receive year round sunlight. The Council says even if the development reduces the effectiveness of those panels in the winter months, which is what Mr B believes will happen, the proportionate effect on the generation of electricity and benefit of that to climate change would be small. The Council therefore does not consider the decision would have been different if it had considered the impact the development would have on Mr B’s solar panels when granting planning permission. That is an assessment the Council should have undertaken when it considered the planning application. However, as I said in paragraph 3, it is not the Ombudsman’s role to comment on the merits of a judgement reached by officers unless there is evidence of fault in how that judgement has been reached.
19. The explanation now given by the Council is a matter of judgement and as the Council has reached that judgement after considering the photographs showing Mr B’s solar panels and the orientation of the site, as well as the development approved, I could not say it had failed to consider the situation properly. It seems likely there will be an impact on Mr B’s solar panels during the winter months, as he claims. However, it does not follow that because there is an impact the Council should have refused the application. The Council would still have to go on to consider whether that impact was so significant as to warrant refusal of the application. As the Council has now explained why it does not consider the impact would have led to refusal of the planning application I could not say if the Council had considered the impact on solar panels in the report it would have reached a different decision.
20. In those circumstances I do not consider the faults identified in this statement affected the decision on the planning application. However, I consider Mr B has suffered an injustice as he is frustrated the report for the application did not properly assess the impact the development would have on his amenity. He has also had to go to time and trouble to pursue his complaint. I consider a suitable outcome would be for the Council to apologise and pay Mr B £300. I also recommend the Council complete a training session for planning officers on the impact of the judgement I refer to in paragraph 10 in terms of how planning applications are considered when they affect a neighbour’s solar panels.

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Agreed action

21. Within one month of my decision the Council should apologise to Mr B and pay him £300.
22. Within two months of my decision the Council should carry out a training session for planning officers on consideration of the impact a development will have on solar panels in light of the legal judgement referred to in paragraph 10.

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Final decision

23. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman