Summary: Mr X complained about the Council’s planning application and enforcement decision relating to his neighbour’s extension. We did not investigate further as we were unlikely to find evidence of fault, recommend a remedy or reach any other meaningful outcome.

The complaint

1. Mr X complained the Council was wrong to grant planning permissions for his neighbour’s extension, because it overshadows his home. Mr X also complained the Council failed to:
• take planning enforcement action when the extension was not built in accordance with plans;
• notify him that it had received a second (retrospective) application;
• measure the development before it approved it; and
• apply the ‘45 degree’ rule.
2. Mr X would like the Council to apologise for its failings and compensate him for the impact the development has on his amenities.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot show that any alleged fault has caused injustice to the person who complained, or
• any claimed injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. 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.
5. The Council also shared evidence from its document management system, showing the names of those consulted and the dates consultation letters were printed.
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. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
13. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Planning enforcement officers ask developers to submit retrospective applications where they find evidence that development is not lawful.
14. 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. They will often consider any development beyond 45 degrees as likely to be unacceptable. Some councils include this test, or versions of it, in their published Supplementary Planning Guidance, which shows how they apply policy to protect amenities, but they are not obliged to do so.
15. Regulations set out the minimum requirements for how councils publicise planning applications.
16. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
17. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
18. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

What happened

19. Mr X’s neighbour got planning approval to build a large two storey extension. The neighbour built the extension larger than was shown on the approved plans. Mr X complained to the Council and a planning enforcement officer visited the site and agreed there was a breach.
20. The neighbour submitted a retrospective application and a planning case officer wrote a report. The case officer report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity, design issues, and highway safety; and
• the officer’s recommendation to approve the application.
21. The application was approved. The approved plans included a drawing showing a 45 degree line from Mr X’s home towards the extension. The case officer noted the existence of this plan in the report, and went on to explain why they felt that the increased size of the extension, though undoubtedly causing an impact on Mr X’s amenity, was not such that warranted refusal.
22. Mr X was disappointed with the outcome. He said the case officer was wrong to say the increase in depth of the extension was only just over half a metre more than was approved. Mr X believes the increase is more than twice the figure quoted by the officer. Mr X believes the officer was wrong to quote a figure without measuring it themselves. Mr X also said he had only received a notification letter about the first application, but not the second, retrospective application.
23. I asked the Council to provide evidence to show it produced a neighbour notification letter addressed to Mr X for retrospective applications. It sent me a screen print from its document management system that shows a notification letter with Mr X’s address details was printed.

My findings

24. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
25. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
26. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
27. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
28. I should end my investigation for the following reasons:
• I am unlikely to find fault in the way the enforcement decision was made. The enforcement complaint led to a retrospective application, which the Council was entitled to consider and approve.
• The case officer reports for both applications show that before decisions were made, the Council took account of the main planning considerations, including the impact on neighbouring amenities. The Council followed the decision-making process we would expect. In these circumstances I cannot recommend the remedies Mr X requested.
• The Council provided evidence to show it produced a neighbour notification letter for the retrospective application. Councils are only obliged to keep evidence to show notifications were produced, not that they were delivered. I am unlikely to find fault in relation to this part of the complaint.
• Council planning officers do not carry out site surveys. They use scaled plans to gather information about distances, heights etc. In this case, the development was substantially complete by the time the enforcement officer visited, so the Council had the benefit of considering the application as it was built. Even if Mr X is correct and the increase in size from the original plans is greater than described by the case officer, I cannot show this would have made any difference to the outcome.
• The Council noted that the revised plan included a 45 degree line. The case officer went on to consider the impact the increased size of the extension would have on Mr X. The 45 degree ‘rule’ is not a rule that must be followed, but guidelines that can be considered before a decision made. The case officer gave an opinion that the increased size did not justify refusal, and we are not an appeal body for judgement like this.

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Final decision

29. I ended my investigation as it was unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman