Summary: Ms X complains about the decision by the Council to approve planning permission for an extension to her neighbour’s property. Ms X says this has caused her to suffer significant loss of light and outlook from her property. The Council was not at fault for how it approved the planning application.

The complaint

1. Ms X complains about the Council’s decision to approve planning permission for her neighbour’s extension. Ms X says:
1. The Council failed to properly consider loss of light and outlook.
2. The Council failed to consider clear breaches of the Supplementary Planning Document.
3. The Council failed to consider relevant decisions of the Planning Inspectorate as to how the impact of loss of light and outlook are judged.
4. The Council did not consider the loss of outlook from the study area, where Ms X works from home.
5. There was an overreliance on permitted development rights to justify the decision even though the extension could not have been built under permitted development.
6. The Council breached is own policy and pre-determined the application by having a pre-committee meeting and did not have all Committee members attend the site visit.
7. The Planning Officer misled the Committee and used irrelevant photos taken at Ms X’s property.
8. The Planning Officer did not properly consider the impact of the decking at the rear of the extension on Ms X’s property.
2. As a result, Ms X says the development has had a significant negative impact on her outlook and amenity.

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)

How I considered this complaint

6. As part of this investigation, I considered the information provided by Ms X and the Council, I discussed the complaint over the telephone with Ms X. I considered the information on the Council’s online planning portal for this application. I watched a recording of the Planning Committee meeting. I sent a draft of this decision to Ms X and the Council and considered comments received in response.

What I found

7. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land. Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.

Permitted development

8. 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.

Decision making and material considerations

9. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
10. 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.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. Government statements of planning policy are material considerations. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Case officer reports & giving reasons for decisions

14. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

The Council’s supplementary planning document

15. This guidance recommends a minimum distance of at least 12 meters between a main habitable room window and a blank wall of an extension.
16. Planning officers often use a rule of thumb, known as the ‘45-degree rule’ when considering loss of light or the overbearing impact of a new development. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. If the new building or extension crosses the 45-degree line, it is likely to affect the outlook and daylight of the neighbour. However, that does not necessarily mean a council should refuse a planning application. A council would also assess the significance and impact of any potential loss of daylight or overshadowing.

What happened

17. Ms X’s neighbour made an application to build an extension onto the back of their property in March 2021. The extension was a single-story extension with decking at the rear. After discussions with the Council the scale of the development was reduced in terms of length and height. As a result, the application had further 14-day consultation periods between 25 May 2021 and 8 June 2021, and 22 June 2021 and 6 July 2021. Ms X submitted objections to the development.
18. On 1 June 2021, the Planning Officer visited Ms X’s property. At this visit he took photographs from her property of the proposed development site.
19. On 7 July 2021 there was a meeting between the Chair of the Planning Committee, Vice Chair, Planning Officer, Lead Officer, and Legal Representative. The Council said this was a meeting held before every Planning Committee meeting and was used to assist with the smooth running of the committee. The Planning Officer detailed the planning applications which would be considered by the Planning Committee. The Council said there was no debate about the merits of an application at this meeting or about how members should vote.
20. On 21 July 2021, The Planning Committee carried out a site visit of the proposed development, however this was only attended by the Chair and Vice Chair.
21. In late July 2021, the Planning Committee considered the application. The Committee meeting recording showed the Planning Officer presented their report which recommended approving the application. The Planning Officer explained the differences between the development and what the applicant could build under permitted development. They also discussed the 45 degree rule and impact of the development on Ms X’s property.
22. A Councilor spoke against the application and said the development breached the 45-degree rule. They also mentioned concerns about the size and dominance of the extension. Ms X also gave a presentation to the Committee where she spoke against the proposals. Ms X said:
• Her two main habitable rooms (living room and kitchen diner) would be impacted by the development.
• The original proposal was harmful and there has only been a small reduction to this.
• The development would significantly impact her outlook.
• The area in her kitchen diner which she uses as a study would be significantly impacted as the side wall of the development would block light and outlook from this window.
• There were decisions from the Planning Inspectorate which she provided which the development contradicts.
• She disagreed with the permitted development fallback position outlined by the Planning Officer. Ms X said the development was much bigger than what could be built under permitted development and the difference between the development and what could be built under permitted development is significant in terms of the impact on her outlook.
23. An agent for the applicant also spoke in support of the application. Following these presentations, the Committee members debated the application and asked questions of the Planning Officer. This included the distance between the extension and Ms X’s property, other extensions on the road and the permitted development comparators. After debating the application, the Planning Committee voted to approve the application by 10 votes to 2.

Ms X’s complaint

24. On 21 December 2021, Ms X raised a formal complaint with the Council about its decision to approve her neighbour’s extension. Ms X said:
1. The Council did not consider the Supplementary Planning Document (SPD) when it assessed and decided the application, as the application was less than 12 meters away from the main window in a principal room.
2. The Planning Officer’s report was flawed as it said the development was within the fallback position in relation to permitted development. Ms X said this was not the case and as a result the officer failed to address the breaches of the SPD or give them adequate weight.
3. The Planning Officer misled the Committee in terms of the height of the extension and about what could be done under permitted development and did not refer the Committee to the Planning Inspectorate decisions she provided. Ms X said the planning officer compared the proposed extension to a property opposite, without making it clear those properties were on level ground so the impact in terms of outlook was different to the impact on her property.
4. The Planning Officer did not consider the four Planning Inspectorate decisions Ms X provided.
5. The Planning Officer took unauthorised photos of her property and shared these without her consent. Ms X said she did not know these were shared with the Committee in a pre-committee meeting.
6. The Council breached its probity in planning documents by pre-determining the decision, as not all Committee members attended the site visit. There was also a presentation before the Committee, attended by the Chair and Vice Chair who were the only members to attend the site visit.
7. The Planning Officer’s report was biased and incorrect. Ms X said the applicant could not have built the extension under permitted development. The report also dismissed the loss of light Ms X would suffer as shading, did not properly consider her concerns about loss of light and outlook and said Ms X’s extension was on a par with the application when it was much smaller.
8. She was dealt with in an unfair manner as other decisions which were quoted were different and concerned extensions which were no higher than the existing fence boundary.
9. The Planning Committee failed to consider all the relevant considerations and some members made inappropriate comments. Ms X said they did not consider the severe loss of outlook.
10. The external dimensions of the proposed extension were not accurately marked on the plans.
25. In January 2022, the Council provided its stage one response to Ms X’s complaint. The Council said:
1. The SPD is a material consideration when assessing planning applications, but this document only provides guidance rather than strict rules. The Council said the Planning Officer’s report noted the relevant parts of the SPD but explained why they considered the impacts from loss of outlook and light to be acceptable.
2. There was no misrepresentation in the Planning Officer’s report concerning the permitted development fallback position. The Planning Officer’s report did not state the development was within the permitted development fallback position but compared the extension to what could be built under permitted development. The Council said what the applicant could build under permitted development was a material planning consideration. The Council said it was satisfied the Committee understood this as Committee members asked a question about this.
3. It did not consider the Planning Officer’s report misleading in relation to the height of the development. The appeal decisions Ms X submitted were referenced in the addendum and the Planning Officer’s presentation to the Committee. Ms X also mentioned the appeal decisions in her presentation to Committee members.
4. The appeal decisions Ms X provided were logged, published on the Council’s website, noted in the addendum report and mentioned in the Planning Officer’s presentation. The Council said they were different cases and could not be used to justify how this application should be considered. The Council said the Committee considered the material planning considerations and decided the extension was acceptable. The Council said planning decisions should be judged on their own merits.
5. The Planning Officer visited Ms X and took photographs in her presence. The Planning Officer explained the photographs would be for internal use only and Ms X raised no concerns with this. At the meeting on 7 July 2021, the Committee chair said these photographs would be useful in the Planning Officer’s presentation to the Committee. The Council asked Ms X for permission to use these photographs for, however she raised concerns about the Council holding the photographs. As a result, they were deleted.
6. It was not mandatory for the Committee members to attend a site visit. The 7 July 2021 meeting was between the Chair, Vice Chair and Lead Officer to assist with the smooth running of a committee meeting. The Council said there was no debate or discussion in relation to the merits of an application or any presentations. So, it did not fall within the part of the Council’s code Ms X said had been breached.
7. The Planning Officer’s report does provide an accurate summary of what Ms X said in her letters. The Planning Officer visited Ms X’s property at her request, kept her informed on the application and secured amendments to decrease the impact on her property.
8. The service Ms X received from the Planning Officer and department was professional and of a high standard. The Council said it responded to Ms X’s correspondence and visited her property. The Council said it was satisfied the Planning Officer was fully informed before coming to a recommendation.
9. The Committee based their decision on relevant material planning considerations. The comment made about the applicant’s family size was made after a member asked questions about the scale and nature of the development.
10. The plans were drawn to a recognised metric scale. The Council said while it may have been helpful to include measurements alongside a greater detail of Ms X’s property, that was not a requirement
26. Ms X asked the Council to escalate her complaint to stage two of its complaints process as she was not happy with the response provided at stage one. Ms X said:
• She raised concerns about the Planning Officer’s report being flawed and how the Planning Officer considered the impact of the extension on her property. Ms X said the Planning Officer had referred to her study window as a side window which suggested it was small. Ms X said the room which she used as a study, working from home, had its outlook severely reduced.
• There were inaccuracies in the Planning Officer’s report, such as how the outlook of her property was described.
• The Committee and Planning Officer did not take in to consideration the Planning Inspectorate decision Ms X provided. Ms X said these were only placed onto the website on the day of the Committee hearing along with the drawings she supplied from an architect.
• At the Committee meeting, the Planning Officer compared the extension to another development which was built under permitted development. Ms X said the Planning Officer should have know this was permitted development.
• She did not give permission for the Planning Officer to share photographs he had taken from her property and questioned why certain photographs were taken from irrelevant areas.
• The meeting on 7 July 2021 should have had minutes taken. Ms X questioned why it was needed at all and said it showed members had pre-determined the application.
• A more recent planning application for an extension on the same road showed differences in how the Planning Officers considered outlook.
• One member of the Committee made a comment about building an extension for a larger family size and this is not a material planning consideration.
• Her loss of light and outlook comments were not considered by the Planning Officer.
27. In February 2022, the Council provided its stage two response to Ms X’s complaint. The Council said:
• The Planning Officer’s report clearly set out the comparison of the proposal to what could be built under permitted development. The Council said what could be built under permitted development was an important material consideration and appropriate weight was afforded to the permitted development fallback position as it would be broadly similar in impact to the proposal. The Council said by referring to Ms X’s study window as a side window there was no implication that the window was any particular size or that the room it serves has any particular function.
• It considered the Planning Officer’s report was a fair and accurate assessment of the amenity impacts on Ms X’s property and it considered the relevant policies and guidance within the SPD.
• The appeal decisions Ms X provided were logged, published on the website, noted in the addendum, and mentioned in the Planning Officer’s presentation. The Planning Officer’s report provided a fair and accurate assessment of the impact of the extension on Ms X’s property.
• The Council did not know the measurements of another extension nearby as it had no records of this. The extension was noted as relevant context to this development.
• When Ms X raised concerns about the photos taken at her property the Council deleted these. It could find no evidence she was misled. The Council said it would however review how it communicated to avoid any misunderstandings in the future.
• It already explained the scope of the 7 July 2021 meeting. In relation to the site visit, members were all invited to attend a site visit prior to the meeting but this was not mandatory. In this case only the chair and Vice Chair visited.
• There were differences between the more recent development which had planning permission approved and for this development the land sloped to such a degree the rearmost element of this development was below ground level.
• The Planning Officer’s report provided a thorough and proportionate assessment of the amenity impacts on Ms X’s property. It considered the relevant policies and guidance in the SPD. This included the assessment of the 45 degree guidance.
28. Ms X remained dissatisfied and complained to the Ombudsman. Ms X complained:
1. The Council failed to properly consider loss of light and outlook.
2. The Council failed to consider clear breaches of the Supplementary Planning Document.
3. The Council failed to consider relevant decisions of the Planning Inspectorate as to how the impact of loss of light and outlook are judged.
4. The Council did not consider the loss of outlook from the study area, where Ms X works from home.
5. There was an overreliance on permitted development rights to justify the decision even though the extension could not have been built under permitted development.
6. The Council breached is own policy and pre-determined the application by having a pre-committee meeting and did not have all Committee members attend the site visit.
7. The Planning Officer misled the Committee and used irrelevant photos taken at Ms X’s property.
8. The Planning Officer did not properly consider the impact of the decking, on Ms X’s privacy, at the rear of the extension.

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Analysis

29. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made. If we find fault, we then need to determine whether it caused an injustice to the individual complainant.
30. Material planning considerations include the impact of a proposed development on the amenity of neighbours, such as overlooking/loss of privacy, loss of light and domination. The test is not, however whether there will be any loss but, rather, whether the reduction in, say sunlight, will reduce the neighbours’ amenity below a reasonable level such that it justifies a refusal of consent.

Complaint a) The Council failed to properly consider loss of light and outlook.

31. The Planning Officer’s report showed the impact of the development on Ms X property was considered. The report discussed what impact the extension would have on Ms X’s property in terms of loss of light and outlook. While the Planning Officer concluded Ms X’s property would experience some loss of light and outlook, they considered this would not be sufficient enough to warrant refusal of the application. I recognise Ms X disagrees with this assessment, however the Council has considered the loss of light and outlook to Ms X’s property and explained why it considered this reasonable.

Complaint b) The Council failed to consider clear breaches of the Supplementary Planning Document.

32. The Planning Officer’s report showed the Planning Officer noted the breaches of the SPD and considered this document within the report. While Ms X’s window was less than 12 meters away from the extension and the development also breached the 45 degree rule, as outlined in the Planning Officer’s report, the Council did not consider this enough to warrant refusal of planning permission.
33. The SPD document is guidance, therefore there will be circumstances where this is breached and planning permission approved. In this case the Council explained if the applicant had built the extension under permitted development it would still have breached the SPD. I am satisfied the Council has adequately considered the breaches of the SPD and provided reasoning as to why planning permission should have been approved.

Complaint c) The Council failed to take into any account relevant decisions of the Planning Inspectorate as to how impacts of loss of light and outlook are judged.

34. The decisions from the Planning Inspectorate were made available to the Committee members to consider. In addition, the Planning Officer mentioned them at the end of his presentation to the Committee. Ms X also made a presentation to the Committee members where she mentioned the Planning Inspectorate decisions. I am therefore satisfied Committee members were aware of the decisions prior to voting to approve planning permission. The Planning Inspectorate decision were material considerations and it was up to Committee members what weight they placed on individual material considerations when they considered the application.

Complaint d) The Council did not to consider the loss of outlook from the study area, where Ms X works from home.

35. The Planning Officer’s report did consider the loss of outlook from Ms X’s property. It also discussed the distance from the window in the study area to the extension. The report considered that if an extension was built under permitted development it would still be the same distance from Ms X’s side window. In addition, Ms X made this point to the Committee during her presentation so the Committee members were aware of her concerns about this.

Complaint e) There was an overreliance on permitted development rights to justify the decision even though the extension could not have been built under permitted development.

36. The Planning Officer’s report did discuss what could be built under permitted development and the impact of this on Ms X’s amenity. What could be built under permitted development was a material planning consideration therefore it was reasonable for the Planning Officer to make this point. The Committee members also asked questions at the meeting about the permitted development fallback position and were shown the differences between the development and what could be built under permitted development. I am satisfied the Committee members understood what could have been built under permitted development and the impact of this on Mr X’s amenity. It is up to Committee members what weight they give to material planning considerations, therefore I cannot say the Council was at fault.

Complaint f) The Council breached is own policy and pre-determined the application by having a pre-committee meeting and did not have all Committee members attend the site visit.

37. While the Council held a prior meeting before the Committee meeting, which the Chair and Vice Chair attended, the Council said this was to ensure the smooth running of Planning Committee meetings. The Council also said planning applications were not debated at these meetings. Ms X argues this showed the Council pre-determined the application. From the evidence provided, most of the Committee members did not attend this prior meeting. At the Planning Committee meeting, members heard arguments for and against the development. Committee members asked questions of the Planning Officer about concerns and issues about the development and debated the application. On balance I am satisfied the Council was not at fault for pre-determining the application.
38. In relation to the site visit, it was not compulsory for all Committee members to attend. Therefore, I cannot say the Council was at fault here.

Complaint g) The Planning Officer misled the Committee and used irrelevant photos taken at Ms X’s property.

39. I am satisfied the Planning Officer did not mislead the Committee. The Planning Officer’s report considered in detail the impact of the development on Ms X amenity. In addition, the Planning Officer answered questions from Committee members when challenged on various points about the development. After watching a recording of the Committee meeting I have not seen evidence that the Planning Officer mislead the Committee.
40. In relation to the photographs the Planning Officer took at Ms X’s property on their visit, it is not clear what was discussed or agreed at the time between Ms X and the Planning Officer. However, when Ms X asked for the photographs to be deleted, the Council complied with this request. The Council said it would review how it communicated with people to avoid any misunderstandings in the future. There is nothing further we could add to this.

Complaint h) The Planning Officer did not properly consider the impact of the decking at the rear of the extension on Ms X’s property.

41. The Planning Officer’s report showed they did consider the impact of the decking at the rear of the extension. The report stated the Planning Officer considered the decking area acceptable, due to its reduction in size from the original plans and relatively small surface area. The Planning Officer did not consider the views from the decking to be significantly harmful enough to warrant refusal of planning permission. I am satisfied the Planning Officer did consider the impact of the decking and has provided reasoning in their report as to why they considered it acceptable.

Conclusion

42. Overall, I am satisfied the Council was not at fault for the way it approved this planning application. The Planning Officer’s report discussed the impacts of the development on Ms X’s property and discussed relevant policy and guidance. Further, the information Ms X’s provided was passed to the Committee to consider. At the Committee meeting the members heard arguments for and against the development, including a presentation from Ms X where she had the opportunity to raise her concerns. Following this, the Committee members asked questions about the application and debated before voting to approve.
43. While I recognise Ms X disagrees with the decision to approve planning permission and the rationale and reasoning of the Planning Officer, this does not mean the Council was at fault for how it considered the application.

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Final decision

44. I have completed my investigation and found the Council was not at fault for how it approved planning permission for Ms X’s neighbour to build an extension.

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Investigator's decision on behalf of the Ombudsman