Summary: Mr X complains there were failings in the way the Council considered an application from his neighbour for a property extension under the Local Development Order causing distress and loss of amenity to Mr X. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

1. The complainant whom I shall refer to here as Mr X complains there were failings in the way the Council considered a neighbour’s application for a property extension under its Local Development Order (LDO). Mr X says the application failed to comply with the LDO so should not have been permitted. This was because the neighbour did not notify him of the application and the new extension encroached onto the privacy, daylight, and outlook of Mr X’s property.
2. Mr X says the Council previously rejected an application made by his neighbour for the extension under the formal planning application procedure due to the impact on to his property. So, by considering an LDO application for an extension it has allowed his neighbour to avoid the scrutiny the previous application received.
3. Mr X also complains the Council’s LDO was flawed because it does not consider the 45-degree rule. Councils use the rule when assessing planning applications to determine the impact of a proposed development on sunlight and daylight to a neighbouring property.
4. Mr X says the Council’s decision to allow the application has caused him distress and loss of amenity to his property.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
6. 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

7. I considered the complaint and documents provided by Mr X and discussed the complaint with him. I asked the Council to comment on the complaint and provide information.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s householder Extensions Local Development Order

9. The Council introduced the LDO in 2017. The Council’s explanation for the LDO says it applies to house extensions and alterations which would normally need planning permission. But are deemed to be straight forward, low impact and comply with the Council’s house extensions planning guidance. The LDO does not remove any nationally set ‘permitted development ‘rights which allow certain extensions to a property without needing planning permission. However, it broadens the range of extensions homeowners can carry out without needing to apply for full planning permission.
10. There are a series of checks applicants must make and they must follow detailed design guidance in the LDO design guide. The Council does not publicly advertise LDO applications. But applicants must discuss the proposals with their neighbours.

What happened in this case

11. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
12. The Council received an LDO application from Mr X’s neighbour for a two-storey side extension. The Council sought amendments to the application and once received, considered it complied with the LDO design guide. The Council approved the application.
13. Mr X contacted the Council and raised concerns about the proposal. Mr X said the extension breached his right to light at his property. Mr X questioned whether the Council should have allowed the LDO application as he did not consider it ‘straight forward’. Mr X referred to the Council’s decision to refuse his neighbour’s application under the formal planning application procedure due to impact onto his property. Mr X asked the Council to revoke the LDO approval.
14. The Council’s website shows Mr X’s neighbour applied for a slightly larger development at the property under the formal planning application process. The application was withdrawn by the applicant and the Council did not formally decide the application.
15. The Council responded to Mr X’s complaint. It said the right to light came under common law and not planning legislation, so it did not need to consider this when drafting the LDO. The Council told Mr X he would need to make a civil claim against his neighbour if he wished to pursue the right to light issue further.
16. The Council explained the section of text referring to applications as straight forward was a preamble to the design code and statement of reasons for the LDO. It did not form part of the legal documents which addressed the detail of individual properties, proposals, and relationships between properties. The Council said it did not have jurisdiction to revoke the approval because it considered it accorded with the LDO design guide.
17. The Council confirmed the design code did not preclude people from making an LDO application if they had previously applied for planning permission. The Council said if they had it would not impact on the Council’s consideration of the LDO application.
18. Mr X complained to the Council again about the LDO application alleging it was invalid as his neighbour failed to tell him about the proposal as needed. The Council’s Enforcement Team investigated Mr X’s claim.
19. It confirmed the LDO required an applicant to notify neighbours of the proposals and send a signed declaration of this as part of the application form. The Council said Mr X’s neighbour had signed the declaration, so had taken this as confirmation the application adhered to the LDO. It issued the LDO based on the information provided and the declaration made by the applicant was true and accurate. Once the Council issued a decision it had no mechanism to revoke it. But it had written to Mr X’s neighbour about the notification because of the complaint to see if it could take enforcement action.
20. The neighbour told the Council they had given Mr X a copy of the plans outlining the proposal and sent him a copy by post. The Council said this suggested due process had been followed along with the signed declaration. The Council closed the case as it did not consider there were grounds for enforcement action.
21. Mr X raised further complaints with the Council through its complaint procedure. Mr X’s complaints were:
• His neighbour had failed to notify him of the proposal.
• The Council’s LDO was flawed and the Council negligent as it allowed an extension that did not conform to its house extensions planning guidance. This was due to it encroaching onto the right to light of Mr X’s property as it failed to follow the 45-degree rule. Mr X considered the proposed extension was not straight forward and alleged the Council refused it previously under the formal planning application procedure.
22. The Council responded to Mr X’s complaints. It explained the notification process to Mr X and the applicant sent a declaration it had been carried out. The Council investigated further, and advised of actions taken to notify Mr X. The Council said it did not have the means to question the integrity of the claim, so accepted the declaration as made.
23. The Council confirmed it had the necessary legal powers to draw up an LDO and did so after carrying out extensive consultation before formally adopting it. The Council recognised the requirements of the LDO would result in some developments gaining consent. And these may not have been recommended for approval under the formal planning application process. But unfortunately setting up an order such as the LDO which used standard criteria rather than an objective assessment could result in some anomalies. The Council says despite this it decided to implement the LDO and followed the correct process to do so. It confirmed any requirements considered to be absent from the LDO were not due to negligence. But due to the Council deciding they were unnecessary or inappropriate in the circumstances.
24. The Council said it drew up the LDO criterion by taking elements of a schedule to the General Development Order (GDO) and planning guidance notes to produce a design guide to inform proposals. It was not the Council’s intention proposals needed to fully accord with the GDO schedule. And it intentionally introduced the LDO to further relax permitted development rights and enable some extensions to proceed which would not fully comply with planning guidance notes.
25. The LDO looked at ensuring development would not physically encroach onto a neighbouring property. This was in terms of overhanging guttering rather than assessing encroachment onto amenity due to overlooking or loss of daylight. It also looked at ensuring an extension did not project beyond a neighbouring boundary. So, the Council considered the LDO fully addressed and prevented an extension from physically projecting across a neighbouring boundary.
26. The Council says the planning guidance notes intend the 45-degree rule to be used towards all extensions considered under the formal planning application procedure. But the Council’s LDO design guide makes it clear the 45-degree rule is not assessed on a two storey and/or first floor side extensions. So, it is not relevant to the LDO process/application.
27. The Council confirms it followed the correct procedures in this case when considering the LDO application.

My assessment

28. The Council’s LDO needs an applicant to sign a declaration they have told neighbours of the application. Council documents show the applicant signed a declaration in this case. The Council investigated further due to Mr X’s concerns it had not been done. The response received satisfied the Council the applicant had followed due process by sending plans to Mr X. The Council decided not to take more action.
29. I acknowledge this will be disappointing for Mr X, but this is a decision for the Council to make. There is no evidence of fault in way the Council reached its decision not to pursue the matter further. This is because it considered Mr X’s claims, investigated the matter, and decided based on information provided to accept the declaration of notification.
30. Mr X complained the extension would encroach onto his property’s privacy, daylight, and outlook. The Council explained the requirements of the LDO meant it considered physical encroachment rather than the 45-degree rule in this case. The Council was satisfied the proposal complied with its LDO and so granted approval. This is a decision the Council is entitled to make. There is no evidence of fault in way the Council dealt with the application as considered the information submitted, the LDO design guide requirements and approved the scheme.
31. Mr X considered the Council’s LDO flawed because it does not take the 45-degree rule into account in this application. The Council explained it decided not to include the 45-degree rule in certain circumstances in its LDO. While Mr X may not agree with the LDO design guide on this issue the Council can adopt a policy in the form it chooses if it is properly approved. The Council confirms it consulted about the LDO before deciding on the content of the policy and design guide. The LDO was then formally considered and approved by the Council which is the usual procedure.
32. Mr X says the Council should not have allowed the proposed extension to be considered as an LDO application because it had been refused previously. The Council’s website shows the application was withdrawn so the Council did not make a formal decision on the application to refuse it as Mr X alleges. The Council says the fact a person has previously made a planning application for an extension this does not prevent them applying for development under the LDO and it does not give weight to this when considering an LDO application. I am satisfied from the evidence provided the Council considered the LDO application in line with the scheme’s rules and requirements. So, there are no grounds for us to question the merits of the Council’s decision to accept the proposal under an LDO application.

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Final decision

33. I am completing my investigation. There is no evidence of fault in the way the Council considered an LDO application for a neighbour’s extension.

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Investigator's decision on behalf of the Ombudsman