Summary: Mr X complained about inaccuracies in information about a planning application and the way the Council made its decision to grant permission for the development. We have found fault by the Council in including an inaccurate measurement in its planning report and failing to keep a record of a site visit. We do not consider this fault affected the outcome of the application, but it has caused Mr X the injustice of avoidable concern and upset about the decision making process. The Council has agreed to remedy this injustice by apologising, making a payment to Mr X to reflect this distress, and service improvements.

The complaint

1. The complainant, who I am calling Mr X, complained about the way the Council made its decision to grant planning permission for a development on land to the rear of his property. Mr X says:
1. the Council failed to note the inaccuracies in the drawings submitted with the planning application. These drawings wrongly showed the houses in his street, including his property, as being 3.5m south-west of their actual location and did not show the extension to rear of his property;
2. Because of these inaccuracies:

• The position of the development in relation to his property, in particular the direction in which its doors and windows faced, was wrongly shown on the drawings and wrongly interpreted by the Council in the planning officer’s report;
• The distance between his property and the development was wrongly stated in the report as 21m when it is 16.9m; and
• It was wrongly stated in the report that the development was set at a lower elevation than his property. It is at a higher elevation.
3. The Council’s conclusions about the effect of the development on his amenity, in particular privacy, overshadowing and loss of light, and its decision to grant planning permission were based on inaccurate information;
4. Had the Council properly checked the information and considered accurate information, it would not have granted permission for the development as proposed in the planning application; and
5. The Council wrongly agreed to an increase in the height of the development’s eaves without proper consideration or following the correct procedure.

2. Mr X complains the construction of the development in accordance with the planning permission granted by the Council has affected his amenity and the value of his property because:

• His rear garden and part of the rear of his property is now shaded. The windows at the development overlook his property and he has lost his privacy in the garden and principal rooms;
• He has had to plant trees to provide screening at a cost so far of about £4,100. He may need to plant more; and
• His property’s value has been reduced by £50,000.

3. Mr X wants the Council to revoke the planning permission and order the demolition of the development. Alternatively, it should compensate him for the loss of his amenity, the cost of the screening and the reduction in his property’s value.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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. 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)
7. 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)

Back to top

How I considered this complaint

8. I spoke to Mr X, read his complaint and the Council’s response to our enquiries, together with all the other information Mr X, and the Council provided about the complaint.
9. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

Back to top

What I found

What should have happened

Planning law and guidance

10. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused, or approved subject to planning conditions.
11. Councils should approve planning applications in line with the policies in their development plans unless other material planning considerations indicate otherwise.

Decision making and material considerations

12. Material planning considerations concern the use and development of land in the public interest, including such considerations as:

• Local and national planning policies; and
• The impact on neighbouring amenity.

13. Planning considerations do not include things like:

• The impact of a development on property value; or
• Private rights and interest in land.

14. Councils may give competing planning considerations different weight when making their decision.
15. Councils delegate most planning decisions to their planning officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.
16. If a Council considers a change to a planning permission is “non-material” it may allow this without a fresh application. This is a question of fact and degree and a matter for the Council to decide.

Site visits

17. Council officers and planning committees are not obliged to carry out site visits before deciding a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.

Our published guidance on Good Administrative Practice

Our guidance sets out the standards we expect when we investigate a council’s actions. These standards include keeping proper records.

What happened

18. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

19. A planning application was made to the Council for a development on land to the rear of Mr X’s property.
20. The application was considered by a Council planning officer. A decision to approve the application was made by the officer under their delegated authority.

The officer’s decision

21. The officer set out the reasons for their decision in a report published on the Council’s website. The report:
1. said objections to the proposal had been received on the grounds it would result in overshadowing, loss of light and overlooking of adjacent resident properties;
2. referred to the Council’s relevant development plan policies, including DM1 for general requirements for all development. This policy said new development should ensure the delivery of acceptable levels of amenity, privacy and overshadowing for existing, neighbouring and future users through:

• provision of adequate spatial separation distances between existing properties and proposed properties and buildings; and
• retention and/or provision of adequate public, private and shared spaces and landscaping.
3. set out how the officer had considered the impact of the development on the amenity of adjacent homes. Regarding the concerns raised about impact on amenity, specifically overshadowing/loss of light, it said:
• Part of the development was approximately 21 metres from, and set at a lower elevation to, the nearest dwelling;
• Another part of development was approximately 16 metres from the nearest dwelling:
• It was a 1.5 storey development to minimise height with only the upper section of the wall and roof slope visible from outside the site;
• The roof would slope away from neighbouring dwellings limiting the impact on any natural light; and
• Based on the above, the proposed development was considered to have a limited impact on the natural light received by neighbouring dwellings.
4. With regard to concerns about the impact of overlooking, it said:
• The side elevation and roof slope had been kept blank to avoid any overlooking of neighbouring curtilages on that side;
• The nature of the design meant views from the recessed balconies on the upper floors at the front and the rear of the development were limited to the direction of the balconies and in view of the large distance from the neighbouring property facing the balcony and proposed planting the impact on overlooking was considered acceptable; and
• Based on the above, the proposed development was considered to be compliant with Policy DM1.
5. concluded the proposal was considered to be sensitively designed to avoid any unacceptable overshadowing or loss of privacy for neighbouring residents.

22. I note a reference was made, in a paragraph in the report, to the rear extension to Mr X’s property.

Mr X’s complaint

23. When the construction work started Mr X realised the impact the development would have on his amenity, in particular loss of privacy and overshadowing. He complained to the Council about its decision to approve the application. He raised a number of issues and was particularly concerned about errors in plans submitted with the application and incorrect measurements referred to in the report.
24. He said the officer’s decision had been based on false information including:

• The plans did not correctly show the position of his property in relation to the development. This affected the accuracy of information about the impact of overlooking on his property. The main access door to the development is on the side elevation facing the rear of his property. A bedroom window on the side elevation, although facing in the direction of the front of the development, had a 45 to 135 degree view of his property;
• The report wrongly said the development was 21 metres from his property, when it was actually 16.9 metres; and
• The development was said to be at a lower elevation to his property. But the ground floor is actually higher than his property.

25. By failing to check the plans with the actual site and relying on inaccurate information, the officer had not properly considered the development’s full impact on his amenity.
26. The Council had not followed the correct process when it agreed an increase of 450 mm in the eaves height as a non-material amendment.

The Council’s response to Mr X

27. The Council said:

• The increase in eaves height did not affect the ridge height. On this basis the officer determined the change was a relatively minor alteration which would not have any detrimental effect on the neighbouring properties’ amenity;
• Any difference between the levels referred to in the officer’s report and the actual levels was not significant enough to exacerbate any perceived overbearing impact;
• There were no principal windows directly facing Mr X’s property. The door on the side elevation facing the rear of Mr X’s property was to a store room;
• The bedroom window did not directly face the rear of Mr X’s property. There might be some potential for overlooking part of the garden, but this was quite common in a built up environment;
• Its policy did not define an appropriate separation distance. This was determined on a case-by-case basis. It was not uncommon to see 20 or 21 metres cited as the minimum desirable separation distance between elevations with windows to habitable rooms facing each other across private gardens. But this could reduce to 10 or 15 metres where windows to habitable rooms faced blank elevations; and
• With regard to the extension not being shown on the application plan, the officer visited the site and would have noted the actual position of neighbouring properties and considered this in their assessment.

28. The Council said it was satisfied the officer properly considered the overlooking of Mr X’s property and made their decision fully aware of its relationship with the development. It agreed with the officer’s assessment the loss of privacy was not significant and within the tolerance expected with this type of development.

The Council’s response to us

29. The Council told us:

• The officer no longer works for the Council. Although there are no records of this, the officer did visit the site before making their decision;
• The side elevation facing the rear of Mr X’s property had an entrance and store room door, no windows and was effectively a blank elevation. In this case, a separation distance of 16.9 metres was a sufficient separation distance not to create an overbearing impact or result in a loss of privacy.

My analysis – was there fault by the Council causing injustice?

Our role

30. As part of the planning process, a council’s planning officers are expected to take a view and make professional judgements on the acceptability of a proposal. We are not an appeal body and cannot substitute our view on the merits of a planning application for an officer’s professional judgement.
31. Our role is to look at the processes a council and its officers have followed to make its decision. We will consider whether these processes have been followed correctly.

(a)The inaccuracies in the application plan and the planning report

32. I have accepted what Mr X has said about the separation distance between the rear extension to his property and the development being just over 4 metres less than the distance stated in the report. And that the position of his property in relation to the development is shown incorrectly in the application plan. These inaccuracies have not been disputed by the Council.
33. The Council was not responsible for the accuracy of plans and measurements submitted with the application. But the separation distance between Mr X’s property and the development, and the development’s relationship with neighbouring properties were relevant to the material considerations referred to in the planning officer’s report. In my view, it was fault by the Council to refer to an inaccurate measurement in its report.

(b)The officer’s site visit

34. The Council says the officer visited the site but it has no record of the visit. An officer is not required to carry out a site visit before determining a planning application. But we expect councils to keep proper records. In my view, the Council should ensure accurate records are made and maintained of any site visits made by its planning officers. Its failure to do so here is fault.

Impact of faults (a) and (b)

35. When we find fault we need to decide if it caused an injustice which should be remedied. I now have to consider whether, but for these faults, there would have been a different outcome to the application.
36. I have noted:
1. The officer’s report:

• contained a detailed description of the site, its location and topography, a detailed description of the development and its orientation, and of the neighbouring properties; and
• referred to the rear extension to Mr X’s property, and that another neighbouring property had a separation distance of 16 metres from part of the development.
2. The plans showed:
• The orientation of the development and neighbouring properties;
• The bedroom window facing towards the front of the development;
• There were no windows on the development directly facing Mr X’s property; and
• The height of the development and number of storeys.
3. The Council’s policy DM1 does not stipulate acceptable separation distances. The Council has said where an elevation without windows faced another property’s habitable windows, a separation distance of 16.9 metres would meet its policy for an acceptable level of amenity. In this case, there were no windows directly facing Mr X’s property and the officer did not consider a separation distance of 16 metres had an unacceptable impact on another neighbouring property.
4. The officer considered this information and concluded the proposal was sensitively designed to avoid any unacceptable overlooking or loss of privacy for neighbouring residents.

37. In my view, the report shows the officer had noted the rear extension to Mr X’s property and considered, in detail:

• the site location and topography, the position of the development on the site and its relevant relationship with neighbouring properties; and
• the material considerations of overshadowing, loss of light and overlooking and the impact of the development on the residential amenity of near neighbours.

38. The officer had enough relevant information to reach a view of the impact on the residential amenity on near neighbours, including Mr X. The officer’s judgement was there would be some impact but assessed this was acceptable in planning terms.
39. I do not consider that but for the identified faults - the inaccuracies Mr X has complained about and the Council’s failure to provide a record of a site visit - there would have been a different outcome to the application.
40. But the inaccuracies and failure to provide details of the site visit have, in my view, caused Mr X avoidable concern and upset about the way the Council made its planning decision.

(c)The change to the eaves height

41. The Council decided the increase in the eaves height of 450mm, which did not affect the ridge height, was a “non-material” amendment. On this basis it allowed the change without the need for a fresh application.
42. This was a question of fact and degree the Council was entitled to decide. I do not consider there was fault in the way it made this decision.

Agreed action

43. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for including inaccurate information in its planning report and failing to record the site visit. These apologies should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies; and
2. pay Mr X £150 to reflect the avoidable concern and upset its faults caused him. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies
44. And within three months from the date of our final decision, the Council has agreed to review its procedures and guidance to planning officers about:
1. checking measurements relevant to the material considerations for a planning application; and
2. recording site visits.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

46. I have found fault by the Council, causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

Back to top

Investigator's decision on behalf of the Ombudsman