Summary: Mr X complained the Council approved a planning application without adequately addressing his objections about loss of light and overshadowing. We do not find fault with the Council causing a significant personal injustice to Mr X.

The complaint

1. Mr X complained the Council approved a planning application without adequately addressing his objections about loss of light and overshadowing.
2. Mr X said the Council failed to properly consider the 45-degree rule for the roof or 25-degree rule for windows opposite the development. Mr X said the Council refused to accept he had a window facing the development despite providing evidence of this to the Council.
3. Mr X also complained the Council failed to substantiate its comments in the planning report the proposed first floor extension did not extend beyond the existing building line resulting in a loss of light. Mr X also said the Council failed to address his concerns about the accuracy of the development plans.
4. Mr X says the Council approving the planning permissions has impacted his amenity and caused stress and distress through building works which the Council should not have permitted.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X provided comment on my draft decision which I considered before making my final decision.

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What I found

Planning application validation requirements

10. The Council validates planning applications in accordance with the National Planning Policy Framework and the subsequent Statutory Guidance.
11. The Statutory Guidance says a location plan presented with a planning application should be based on an up-to-date map and should typically be in a scale of 1:1250 or 1:2500. The location plan should identify sufficient roads or buildings to ensure clarity on the location of the development site.
12. The Council’s website says it is currently working on creating its own Local Validation List to provide clarity and certainty to applicants.
13. The Council’s website provides a list of its validation requirements which act as an interim guide for applicants about what to provide. This list includes a requirement for the application site to contained “two named roads”.

Loss of daylight or overshadowing

14. Sections 8.8 to 8.13 of the Council’s borough wide design guidance detail the Council’s approach to access to daylight and sunlight.
15. In section 8.10 the Council says it is important for developers to consider the impact of developments on the amount of daylight reaching habitable rooms of neighbouring dwellings.
16. Section 8.13 says the developer should consider the 25-degree and 45-degree rules to decide the prospect of overshadowing and loss of light. The BRE guide to daylight and sunlight defines the 25-degree and 45-degree rules as follows
• The 25-degree rule is when a neighbouring property has windows facing opposite the development. A 25-degree line is drawn starting 2 metres from the ground on the neighbouring window. If the development falls within this 25-degree line this development would unlikely have a detrimental impact on light.
• The 45-degree rule is applied to two-storey development next to a neighbouring property. A 45-degree line is taken from the centre point of the neighbouring window. If the line intercepts with the wall of the proposed extension this will likely have a detrimental impact on light. A roof overhang does not form part of the wall.

What happened

17. In late 2021, Mr X’s neighbour put in a planning application to build a two-storey rear extension to their property with a first-floor side extension.
18. The Council validated the planning application and the developer presented plans for the proposed build. The developers plans stated the development would adhere to the 45-degree rule for Mr X’s property based on the rear extension. The Council issued consultation letters to neighbouring properties, including Mr X’s.
19. Mr X put in objections to the planning application. Mr X said:
• The development was not in keeping with the character of the area.
• The side-extension over the garage would impact on the street-scene.
• The rear extension would result in a significant loss of daylight and sunlight to his property and garden and pointed to the 25-degree and 45-degree rules to support this.
20. The Council told Mr X’s neighbours about the objections who provided the Council with added information about the development. A Council Officer also completed a site visit and took photographs of the development site and both neighbour properties. The Council Officer took photographs of the position of the windows on Mr X’s property in comparison to the proposed development.
21. In early 2022, the Council Officer completed their report recommending approval of the planning application. The report said:
• It did not consider the development would negatively impact on the character of the area or street scene in line with the National Planning Policy Framework.
• It considered Mr X’s objections based on overshadowing and loss of light. The Council Officer said the proposed extension would not extend beyond the current building line and would follow the 45-degree rule at Mr X’s first floor level (second storey). The Council Officer said they did not consider the development would cause a significant harm to Mr X’s property through a loss of outlook, daylight or sunlight.
22. The Council granted the planning application following the Council Officer’s recommendations.
23. Mr X contacted the Council to ask when it would respond to his objections to the planning application. The Council told Mr X it had approved the planning application already. Mr X responded to the Council to advise the planning officer did not address his concerns about the 25-degree rule and sought proof from the Council about its decision on the 45-degree rule.
24. Mr X chased the Council for a response and said the extension fails the 45-degree rule when you include the roof overhang.
25. Mr X chased the Council again for a response to his contact before lodging a formal complaint.
26. The Council provided a Stage 1 complaint response. The Council said:
• It is not normal practice for the Council to respond individually to objections to a planning application and will instead consider objections as part of its assessment of a planning application.
• The Council Officer’s report addressed all material issues raised by Mr X in his objections including the impact on character, street-scene and daylight/overshadowing.
• It did not consider the 25-degree rule applied to the development because Mr X did not have a habitable window facing the development.
27. Mr X appealed the Council’s Stage 1 response. Mr X said the roof overhang intersects with the 45-degree line from one of his windows and he has a window directly facing the development which is 8.8metres away so the 25-degree rule would apply.
28. The Council provided a Stage 2 complaint response to Mr X. The Council said it measures the 45-degree rule from the side wall and the plans presented showed compliance with this rule. The Council said the window Mr X referred to faces towards the rear of his property and not towards the development so the 25-degree rule does not apply.
29. Mr X responded to the Council to dispute the accuracy of the site plans and said the development intersects with the 45-degree rule. Mr X provided a photograph from his window showing the 45-degree angle from his upstairs window. Mr X also said the window at the rear of his property was a bay window so part of this faces the development.
30. The Council responded to advise it does not consider a roof-overhang when assessing the 45-degree rule. The Council said the photograph provided by Mr X shows the development would not intersect with the 45-degree line. The Council also said the 25-degree rule is applicable from the main facing of a window and not the side of a bay window.

Analysis

Validation

31. Mr X complained the Council validated the planning application despite the location plan only containing one road name. Mr X said the Council’s validation requirements require a location plan to have two road names.
32. The Council currently does not have a formally adopted Local List for validation requirements. The Council confirms this on its website. The information provided on the Council’s website about its validation requirements are its guidelines for developers to ensure an application can pass validation. The Council adheres to the regulations and guidelines in the National Planning Policy Framework and the associated guidance.
33. The National Planning Policy Framework and the associated guidance makes no reference to the need for two road names. The Council was not at fault for validating the planning application despite it only containing one road name because the development site was clear to its location on the plans provided.
34. Even if I did find fault with the Council, this would not have caused Mr X a significant personal injustice. This is because failing validation would only have delayed the application a few weeks while the developer added the name to a second road and resubmitted the plan. This would not have impacted the overall development next to Mr X.

Loss of light and overshadowing

35. Mr X complained the Council failed to consider the 25-degree and 45-degree rules when considering the impact on light or overshadowing to his property.
36. A Council Officer attended the development site and took photographs of the development site and windows for each neighbouring property. The Council Officer’s photographs pay particular attention to the location of the windows on Mr X’s property in relation to the plans presented by the developer showing the 45-degree line.
37. Within the Council Officer’s report, they directly referenced the 45-degree rule and stated they considered the proposed extension complied with this rule when considering Mr X’s property.
38. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable.
39. The Council has shown consideration of the 45-degree rule and reached a decision the development is compliant with this rule. The Council Officer’s professional decision in this instance is not one that is so unreasonable the Ombudsman could question it.
40. The Council’s decision is also supported by the photograph Mr X provided to the Council in response to the Stage 2 complaint response. Mr X’s photographs shows the 45-degree line is not impacted by the wall of the development and, therefore, the development complies with the 45-degree rule. I do not find fault with the Council’s decision on the 45-degree rule.
41. The Council Officer made no reference to the 25-degree rule in the report. However, the Council Officer’s photographs show that none of Mr X’s windows at the rear of his property face towards the development. Since none of the windows on Mr X’s property face the development, the 25-degree is not a relevant consideration. I would not expect to see a Council commenting on planning considerations which are not relevant.
42. While Mr X has expressed concerns that part of his bay window faces the development, the Council was correct to tell Mr X the 25-degree rule is applicable from the main facing of the window. I do not find fault with the Council’s decision on the 25-degree rule.

Substantiation of comments

43. Mr X complained the Council Officer failed to substantiate their comments in the planning report.
44. The Council is not under any duty to prove or substantiate its comments within a planning report. A Council must show that it has considered the plans presented for a planning application with reference to the relevant planning legislation and guidance. A Council should explain its thinking and consideration to show that it has considered the relevant planning points but this falls short of requiring a council to prove its consideration.
45. While Mr X is dissatisfied with the Council Officer’s report, I do not find fault with the report of how the Council laid out its thinking.

Accuracy of plans

46. Mr X complained the Council failed to address his concerns about the accuracy of the development plans. Mr X said the development plans measurement for the distance between his property and the development was inaccurate. Mr X also said the developer failed to include his bay window on the plans.
47. The Council has not addressed Mr X’s comments on these inaccuracies in either the planning report or in response to his complaint. This was fault.
48. While the Council has not addressed Mr X’s concerns about these inaccuracies, this has not caused Mr X a significant personal injustice. This is because both inaccuracies would be relevant in consideration of the 25-degree rule. But, as explained in paragraphs 41 and 42, the 25-degree rule is not applicable to this development. Therefore, these inaccuracies, and the Council’s failure to comment on them would have had no bearing on the result of the planning application.

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Final decision

49. I have completed my investigation as there was no fault in the Council’s decision causing a significant personal injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman