Summary: Mr X complained about the Council’s decision to approve his neighbour’s planning application for a large house extension. We found fault causing injustice, which the Council has agreed to remedy to avoid recurrence of the fault and potential injustice to others.

The complaint

1. Mr X complained the Council failed to protect his amenity when it allowed a large extension on the side of his neighbour’s house.
2. Mr X said the new extension will cause damage to his property and impact his amenities.

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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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered or may suffer an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
12. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
13. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
14. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
15. Planning officers may consider the loss of light or overbearing impact a new development is likely to have on existing buildings. They often use a rule of thumb, known as the ‘45-degree rule’. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. Some councils also apply a ‘rising’ 45-degree line, with an upward angle of about 25 degrees. Only those parts of the development above and beyond the point where the line touches the development will be considered potentially problematic.
16. Some councils include this test, or versions of it, in their published Supplementary Planning Guidance, which shows how they apply policy to protect amenities.
17. Decisions made by officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made.
18. The 2014 regulations apply to a decision that has been delegated to an officer, if it:
• grants a permission or licence;
• affects the rights of an individual; or
• awards a contract or incurs an expense that materially affects the council’s financial position.
19. The 2014 regulations require that any such decision should be made available to the public:
• at the council offices;
• on the council’s website, if it has one; and
• by any other means the council considers appropriate.
20. The written records should include the following information:
• the date the decision was made;
• the record of the decision, its reasons and the background papers relied on;
• details of alternative options, if any considered and rejected; and
• a record of any relevant conflict of interest.

Background

21. Mr X’s neighbour received planning permission to build a large extension on the side of their house. The extension is built very close to the shared boundary, and on the front and rear building lines of the host property. The elevation facing the side of Mr X’s home has a hipped roof.
22. Because Mr X’s home is set back from its neighbour, the extension protrudes several metres beyond the front of Mr X’s home. He has a bedroom on the first floor with a window facing frontwards, close to the boundary and new extension. The plans indicate that extension breaches a 45‑degree line taken from the mid-point of the bedroom window by a metre or so.
23. After it was received, the application was considered by a planning case officer. The application was publicised, and Mr X was aware of it. However, after looking at the plans and seeing the extension was set back from the boundary, he decided not to object.
24. I checked the Council website for a copy of the planning case officer’s report, but did not find one.
25. I asked the Council to send me a copy of the case officer’s report. It sent a standard form check-list style report. The report included a table with questions relevant to planning considerations. The questions included one that said ‘Does the proposal unduly harm neighbouring occupiers’ amenity?’ to which the officer answered no. There were no words in the report setting out the officer’s opinion on how the extension related to Mr X’s home, nor reasons why the development was considered acceptable.
26. After building work began, Mr X complained to the Council’s planning enforcement department because it seemed the extension was closer to the boundary than was shown on the plans. The Council wrote back to Mr X to say there was no breach of planning control.
27. Mr X was confused by the Council’s response, as the plans showed a clear gap between the extension and his boundary.
28. Mr X said that, from his first-floor bedroom, a 45-degree line from the mid-point of the window touches the side of the extension about a metre and half from its front elevation. Mr X said that if this line is raised by about 20 degrees, it would touch the eave of the hipped roof.
29. I asked the Council about its case officer reports and explained our expectations, which I will set out in the following section. A planning manager said that the standard report form template includes a heading under which officers should set out their analysis and site specific details relating to issues like the impact development will have on neighbouring amenity.
30. To demonstrate how the Council’s system should work, the manager sent me a copy of the standard report form template, and another completed form relating to a different application which was already decided.
31. The template had a heading named ‘Assessment’. Under this section in the completed form, the case officer had written several paragraphs detailing site specific observations on how the development would relate to its surroundings, including its impact on neighbouring amenities.

Case Officer reports – our expectations

32. The Ombudsman recognises that councils have discretion to decide how to apply their policy and guidance, but they need to demonstrate they have exercised that discretion properly. We normally expect to find evidence of consideration of the key material issues in the case officer’s report, which is written to advise the decision-making body or individual. We have seen planning authorities use methods other than case officer reports to record this information, for example, to record analysis, comment and reasons in the ‘informative’ section of decision notices.
33. We accept that delegated reports might be written differently, as their target audience is a professional planner, not a member of the planning committee. However, delegated reports still need to demonstrate the core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated.
34. The purpose of the 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.
35. An explanation of what happened that is given after the events, either in a complaint response or during our investigations, may provide relevant evidence, but it will not necessarily prove the Council acted without fault. This is because we need evidence that shows the Council exercised its discretion properly at the time its decision was made.
36. We expect information showing evidence of analysis, commentary and reasons to be published on the Council’s website. It is good practice to publish this information alongside other planning documents, as without it, it is difficult for the public to understand how or why the decision was reached.

My findings

37. Mr X reported a breach of planning control, but the Council’s enforcement officer decided there was no breach.
38. The case officer’s report did not include sufficient evidence to show the main planning considerations were properly considered. The ‘analysis’ section is missing and there is no site-specific information to show how the case officer reached their conclusion that there was no impact on amenity. This is fault.
39. The case officer’s report is not on the Council’s planning website. I checked the example provided of another completed case officer report form, but it is also not visible on the website. The absence of a copy of the report and an explanation of reasons on the website is fault.
40. When we find evidence of fault, we need to determine what injustice it caused and what should be done to remedy the injustice caused to the complainant and to avoid the fault recurring in the future.
41. It is likely the absence of adequate explanation will have caused Mr X confusion, frustration and disappointment.
42. Even though my view is the report should have included more information and been shared on the Council’s website, I cannot say that the evidence shows it is more likely than not the outcome would have been different.
43. The impact on outlook and overbearing impact on Mr X’s bedroom window is a significant matter, and we would have expected see some evidence to show the Council had considered this relationship. By applying the ‘45-degree rule’, more than a metre of the development is beyond a 45 degree line, but if a rising line is also used, there is more sky and less structure to loom over Mr X’s home and affect his outlook. I can understand why Mr X would not like what has happened, but I cannot say it is more likely than not that a properly considered application would result in refusal.
44. However, the Council agreed to take action to recognise and avoid recurrence of the faults I have found.

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Agreed action

45. To remedy the injustice to Mr X, the Council will apologise for the frustration, confusion and disappointment caused by the faults I have found.
46. The Council will take action to correct its records and record keeping practices, by:
1. uploading the case officer reports referred to above to its planning website;
2. ensure it has a system in place to check records, including case officer reports for accuracy and completeness; and
3. ensure case officer reports are available for the public to view on its website.
47. The Council will provide us with evidence it has complied with the above actions within one month from the date of our final decision.

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Final decision

48. I found fault that caused an injustice to Mr X. The Council has agreed to remedy the injustice caused by the fault and to avoid recurrence. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman