Summary: We found no fault by the Council on Mr and Mrs J’s complaint about it failing to follow procedure and properly apply policies when granting planning consent to a neighbours’ extension. We are satisfied the Council properly considered the application.

The complaint

1. Mr and Mrs J complain the Council failed to follow procedure and properly apply policies when granting planning consent to a neighbours’ application for a single storey rear extension; as a result, their amenities are affected as they will have a large brick wall only two metres from their conservatory.

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What I have investigated

2. I have not investigated all the issues Mr and Mrs J raised in their complaint to us. The paragraph at the end of this statement explains why.

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The Ombudsman’s role and powers

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)
4. 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)

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How I considered this complaint

5. I considered all the information Mr and Mrs J sent, the notes I made of my telephone conversations with Mrs J, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr and Mrs J as well as the Council. I considered what Mr and Mrs J said in their response.

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What I found

6. In early 2021, Mr and Mrs J’s neighbours applied to the Council for planning consent for a single storey rear extension. The Council granted consent.

Validity of planning application

7. Mr and Mrs J complain the neighbours failed to send a valid planning application to the Council as it had no plans showing the roof or scales. Nor did it show any boundary treatment. They say the neighbours kept adding to the application before the Council decided it. They argue the Council should not have validated the application until it received all the required information.
8. Mr and Mrs J also believe the Council should have rejected the application and asked for a new one. They argue this might have persuaded the neighbours not to apply again.
9. The Council considers the neighbours’ application was valid. It confirmed they sent a site plan, plans showing the layout of the development, and site boundaries. It also received elevation detail which included details of the roof design. They also showed the proposed boundary treatment.

My findings

10. I have seen the Council’s own validation criteria and considered the national list which sets out information needed to accompany all planning applications. The national list includes: a location plan to clearly identify the site, with the site edged in red and its scale; any other plans, drawings, and information necessary to describe the development which can include existing and proposed floor plans, elevations, and roof plans; ownership certificates; the correct fee.
11. The Council’s local list of validation requirements are only asked for when proportionate to the nature, scale, and location of the proposed development and for matters which will be relevant, necessary, and material to consideration of the application. The National Planning Policy Framework (paragraph 193) confirms councils should only ask for supporting information which is relevant, necessary, and material to the application.
12. The most relevant requirement the local list makes is for existing and proposed site plans which show the scale, as well as the development in relation to the site boundaries, roads, and boundary treatment.
13. I found no fault on this complaint. I have seen the documents the neighbour sent. These show the proposed and existing elevations, scales, its location, its relationship to neighbouring properties, the boundaries, along with details showing the design of the roof. Amended plans also set out the proposed boundary treatment.
14. Nor did I find fault on the complaint the Council should have rejected the application in the hope this would have dissuaded the neighbours from applying again. The National Planning Policy Framework (paragraph 38) says councils should approach decisions on proposed development in a positive and creative way. Decision makers at every level should seek to approve applications for sustainable development where possible. They should, ‘work proactively with applicants’.

Report and consultation

15. Mr and Mrs J say the planning officer prepared his report before the end of the public consultation period. They claim the report wrongly said there were no new objections following further notification after the first report. When they asked a local councillor to speak on their behalf to the planning committee, the councillor spoke to committee members. The councillor said he was told representing them would make no difference as it was a ‘done deal’. This was before the committee went on to meet and grant consent.
16. The Council explained the application was first reported to the planning committee who decided to defer a decision to allow the neighbours time to send revised plans. It would also allow time for the planning officer to revise his report before the next committee meeting. The neighbours sent amended plans and the Council notified residents of it.
17. The Council also explained the committee report is usually published 11 days before the meeting to allow its members and the public time to read the reports. The revised report was, it accepted, published before the neighbour notification period passed. The Council explained this was usual practice for local planning authorities where they receive amended plans and further consultation takes place.
18. The cut-off date for representations was before the second planning committee meeting. All representations received were reported to the committee. While the committee report stated only one representation was received after further notification, updated reports told the committee six further representations were received. I have seen a copy of the updated reports.
19. The Council provided copies of the lobby records each member of the planning committee must sign, which would include any contact from other councillors. None of the signed records show any approach by their councillor.

My findings

20. I found no fault on this complaint. This is because it is not unusual for officers to draft a report for a second committee meeting in advance in this type of situation. Even if it had been fault, I am not satisfied it would have caused Mr and Mrs J an injustice. This is because the planning officer drew the attention of the committee to further representations received before it decided the application.
21. There is no evidence of the planning committee deciding the outcome of the application before the second meeting.

Planning guidance

22. Mr and Mrs J argue the decision to grant consent went against the Council’s own supplementary planning documents (‘Alterations and Extension to Residential Properties’). These documents provide extra help and advice to applicants, for example.
23. Mr and Mrs J argued these documents required a separation distance to protect their privacy (section 2.1). It required a minimum distance of 6.5 metres between a principal window to a habitable room in one property and a single storey blank wall of a neighbouring property. They say they now have a single storey blank wall two metres from their principal side window to their conservatory.
24. The Council says section 2.1 of the documents does not apply in their case. This is because it refers to a principal window to a habitable room and a single storey side blank wall opposite it. The principal window was not their side facing conservatory window but the window to the rear of it.
25. Mr and Mrs J also claim the planning officer’s report did not say the proposal met the 45-degree rule for light (section 3.2). This says proposals for larger extensions will not normally be allowed unless it is shown the amount of sunlight and daylight enjoyed by neighbouring properties would not be significantly reduced as assessed against the rule. They argue it should have taken this from the original rear window to their house, not the conservatory. This window is now the rear wall of their conservatory.
26. Mr and Mrs J also claim the Council was inconsistent with the way it assessed the impact on their property in terms of their conservatory windows. They argue the side window to their conservatory facing their neighbours’ is the principal window.
27. Appendix 1 of the documents explains the rule. It is taken from the mid-point of a principal window where two lines of 45 degrees are measured. It goes on to say, “In the case of a conservatory, the point for setting the 45° angle would be the central point of the glazing on the rear elevation.’
28. The planning officer’s report noted Mr and Mrs J’s house is set forward of their neighbour’s property and was extended by a conservatory with clear glazed windows in all three elevations. The report noted representations received about it which included concern about loss of light, overshadowing of internal living space, and it going against Council policies because it would cause unacceptable harm to amenities.
29. The report set out the separation distance requirements in its own policies. This included maintaining a minimum distance of 6.5 metres between a principal window to a habitable room in one property and a single storey blank wall of a neighbouring property. Larger extensions are not normally allowed unless they can show the amount of sunlight and daylight enjoyed by a neighbouring property would not be significantly reduced against the 45-degree rule.
30. The report went on to note the principal windows of the conservatory faced down Mr and Mrs J’s garden. The extension does not fall within the 45-degree rule and all the properties face south. It concluded no harmful loss of direct daylight would happen.

My findings

31. I found no fault on this complaint. This is because the officer’s report says the principal window taken for the assessments under the supplementary planning document was the rear one in the conservatory which faces down Mr and Mrs J’s garden. This is why the guidance about separation did not apply to them as there was no blank wall directly facing this window.
32. Perhaps some confusion was caused by what the officer went on to say in the report. The officer noted, ‘The principal windows of the conservatory face down the neighbours own garden and to the other side.’ The reference to the ‘other side’ is unclear, potentially confusing, and potentially incorrect.
33. On balance, I am satisfied the rear windows of the conservatory were used to assess the 45-degree rule and the separation guidance.

Fencing

34. Mr and Mrs J are also unhappy with the fencing erected by their neighbours. They complain the fence is higher than allowed by consent. They say while it is three metres high in places, the Council refused to take enforcement action.
35. The planning officer’s report noted the proposal included 2.5 metre fences to each side of the development towards the top of the garden. This would suitably screen any view from the proposed lower decking.
36. The Council visited the site and measured the fence. The approved plan shows the height of the fence towards the top of the garden as 2.5 metres. It measured what was installed as 2.87 metres.
37. Elsewhere round the garden, the permitted development tolerance is 2 metres. At the mid-point of the garden, the Council measured it as 2.57 metres high. Towards the bottom of the garden, it is 2.75 metres.
38. It concluded the fence is of moderate height, above permitted tolerances but, has a limited impact in terms of loss of light, neighbour amenity, and visual impact. Its impact is reduced as the land slopes down towards the rear of each house. As it does so, the height of the fence decreases. If the neighbours applied for consent to keep it as it is, it would give it. Enforcement action is discretionary, and it does not consider it reaches the threshold for acting on. This is because it does not cause serious harm to local public amenity.

My findings

39. Under permitted development rights, a person can carry out certain types of works to their property without needing to formally apply for planning consent from a council. This is because the law allows some works without consent if they meet certain criteria and limitations. Permitted development allows the erection of fencing up to two metres in height, for example. (The Town and Country Planning (General Permitted Development) (England) Order 2015, Schedule 2, part 2, Class A)
40. The National Planning Enforcement Framework (paragraph 59) explains enforcement action is discretionary. Local planning authorities should act proportionately in responding to suspected breaches of planning control.
41. Its own Enforcement Plan states the Council will normally avoid taking formal enforcement action where, ‘There is a trivial or technical breach of planning control which causes no material harm or adverse impact on the amenity of the site or the surrounding area’.
42. I found no fault on this complaint. This is because I am satisfied the Council visited the site, measured the fence surrounding it, and decided the difference between what was allowed, either by consent or by way of permitted development, did not justify taking enforcement action in all the circumstances. This was a properly taken decision which means we cannot challenge it.

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Final decision

43. I found no fault on Mr and Mrs J’s complaint against the Council.

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Parts of the complaint that I did not investigate

44. I did not investigate the following complaints made:

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Investigator's decision on behalf of the Ombudsman