Summary: Mrs X complained about the Council’s failure to protect her amenity when it approved a planning application for an extension including a dormer roof extension on a house behind her home. We found fault, but for which the Council would have refused the application. The Council agreed to remedy the injustice caused by the complaint by paying for the impact on value the development had on Mrs X’s home. The Council also agreed to review its service considering what has happened and it will make any changes necessary to avoid recurrence. The Council will inform us and its own scrutiny committee of the outcome of the review.

The complaint

1. Mrs X complained the Council failed to protect her amenity when it approved her neighbour’s large roof extension on land behind her home. Mrs X said the extension is clearly in breach of Council policy and should not have been approved.
2. Mrs X said the extension is overbearing and she now has no privacy in her garden.

Back to top

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. 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

5. I read the complaint and discussed it with Mrs 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. I have also considered a report commissioned by the Council from the District Valuer on the impact the development has had on Mrs X’s home.
6. I gave Mrs 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.

Back to top

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. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
12. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
13. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
14. This Council has guidance which normally allows 20 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 30 metres between the elevations of two storey and three storey buildings. An ‘elevation’ is the face or view of the building from one side shown in a plan.
15. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

What happened

16. Mrs X lives in a two storey house. Her neighbour, who lives in the house directly behind her, sought planning permission for a large extension to the rear of their property, including a large dormer style roof extension.
17. The Council’s planning case officer considered the application and wrote a report, which included:
• a description of the proposal and site;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on visual and neighbouring amenity; and
• the officer’s recommendation to approve the application, subject to planning conditions.
18. Mrs X’s objections and the case officer’s assessment of the impact the development would have on her amenity were included in the report. The case officer recognised that the Council’s policy required 30 metres separation distance, but went on to say that the dormer extension was acceptable because it was below the limit set out in permitted development regulations.
19. The application was approved by the Council subject to conditions. Mrs X was unhappy with the outcome and complained to the Council.
20. In its response to her complaint, the Council accepted it was at fault. It said the plans showed the roof height had been raised to accommodate the dormer extension, and because the roof had been raised, the dormer did not comply with permitted development limits. The Council explained that but for this fault the application would have been refused.
21. The Council apologised to Mrs X and offered £1500 in compensation. I spoke to an officer about how the Council had arrived at this figure, and they explained they had found an Ombudsman’s decision from 2014 which appeared to be similar, and had based their offer on its recommendations.
22. I have considered photographs of the new development taken from different viewpoints, including Mrs X’s garden and habitable rooms in the rear of her home. I have considered the Ombudsman’s guidance on remedies, which is available on our website.
23. Where we find fault, we must determine whether it caused an injustice we can remedy. Wherever possible in planning decision cases, we aim to remedy the impact on amenities by funding practical measures, such as planting, screening, acoustic barriers or improved glazing.
24. However, if a practical solution would not be effective, we may recommend financial remedies to acknowledge the loss of amenity caused by fault in the decision making process. These payments are normally within a range of between £1000 and £5000, but in some cases where the likely impact is greater and could lead us to recommend a higher amount, we may ask the Council to seek a difference in valuation from the district valuer. We would then consider the district valuer’s report in reaching a recommendation for a financial remedy.

My findings

25. Before it made its planning decision, the Council did not take account of a significant material planning consideration. This was the change in roof height shown in scaled application plans, that was necessary to build the dormer. This absence of consideration of a key issue is fault.
26. It is my view that, but for the fault, the Council would not have concluded the dormer extension fell within permitted development limits and would not have approved it.
27. The photographs show the dormer extension has an overbearing impact on Mrs X’s home and significantly reduces privacy in her home and garden.
28. Practical measures to protect Mrs X’s amenity will not help, as the space between the houses is too close and the height of the dormer too high to screen. Because of this, a recommendation for a financial payment is appropriate to remedy the impact the development will have on her amenities.
29. The Council commissioned a valuation survey from the District Valuer and shared the report with me. The District Valuer said that the difference in value of Mrs X’s home with and without the dormer development behind her home is a reduction of £6000.

Back to top

Agreed action

30. To remedy the injustice caused by the fault I have found, the Council has agreed to pay Mrs X £6000. The Council will carry out this part of the remedy within one month from the date of our final decision.
31. The Council also agreed to carry out a review of what has happened and decide whether changes to practice and procedures or further officer training are necessary to avoid recurrence of the fault we have found. The review will be completed within three months from the date of our final decision.
32. The Council will report the outcome of the review to the Ombudsman and to the relevant Council scrutiny committee. This will happen within one month from the date the review is completed.

Back to top

Final decision

33. I found fault causing injustice to Mrs X. The Council accepted my recommendations and so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman