Summary: Mr X complained that the Council granted planning permission for his neighbour to add a large roof extension to his property in breach of its policy. We found the Council was at fault in that it failed to properly consider the law and its own policy. But for this fault, the Council would not have approved the application. In recognition of the injustice caused, the Council has agreed to make a payment to Mr X.

The complaint

1. Mr X complains that the Council granted planning permission for his neighbour to add a large roof extension to his property and failed to consult him on the application. He says the extension is in breach of the Council’s policy and he has suffered loss of privacy to his kitchen, first floor bedroom and bathroom and rear garden. He also says his property has reduced in value as a result.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered all the information provided by Mr X together with information relating to the planning application on the Council’s website, including the plans and the planning officer’s report.
5. 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

Legal and administrative background

6. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. In all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice or neighbour notification by letter.
7. All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise.
8. Material considerations relates to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, private rights and interests in land or reduction in the value of a property. Material considerations include issues such as: overlooking, traffic generation and impact on neighbouring amenity.
9. Councils must take account of their planning policy when reaching a decision on planning applications. This council’s policy states that it will normally require a minimum separation distance of 20 metres between directly facing windows of habitable rooms (such as bedrooms, living and dining rooms) increasing to 30 metres where the buildings in question are two or three stories high.
10. Planning permission may be granted subject to conditions relating to the development and use of land.
11. 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’.

Key facts

12. Mr X’s neighbours applied for planning permission for an extension including a large dormer roof extension at the rear of their property. Mr X’s house is behind this property but at an angle.
13. The Council notified neighbouring properties of the application but did not notify Mr X.
14. Another neighbour objected to the application on the grounds that the dormer window would be dominating and reduce privacy.
15. The Council’s planning officer considered the application and prepared a report for the delegated decision-maker. The report set out a description of the site and the proposed development, relevant planning policy and guidance and comments from neighbours.
16. The officer considered the key planning considerations including the impact on the amenity of neighbouring properties. The officer recognised that the Council’s policy required a separation distance of 30 metres between directly facing windows in two-storey buildings such as these but concluded that the dormer extension was acceptable because it was below the 50 cubic metre limit set out in permitted development regulations. The officer recommended approval of the application.
17. The Council granted planning permission subject to conditions.
18. Mr X complained to the Council. In its response to his complaint, the Council accepted it should have consulted him on the application. It also accepted the application was approved on the basis of the dormer being permitted development when this was not the case because of the increase in the height of the ridge. The Council accepted there was a degree of harm to Mr X’s amenity.
19. Mr X escalated his complaint to stage 2 of the Council’s complaints process. The Council accepted it had failed to apply the law and its policies correctly leading to a decision that might not otherwise have been made. It accepted that the development did not accord with its policy because the separation distance between Mr X’s property and the dormer window was only 20 metres rather than the required 30 metres and this had led to overlooking to the rear of his property. The Council apologised and offered to pay Mr X £1,500 in recognition of this error.

Analysis

20. I find the Council was at fault in failing to consult Mr X on the application. As a result, he was denied the opportunity to comment.
21. I find the Council was also at fault in failing to apply the law and its policies correctly. It did not take account of the change in roof height necessary to build the dormer which meant it did not fall within permitted development rights. The Council accepts that, but for the fault, it would not have decided the dormer extension was permitted development and would not have approved it.
22. The Council’s fault has caused Mr X injustice in terms of loss of privacy. Where possible, we aim to remedy loss of privacy by asking the Council to fund practical measures, such as planting or screening. But, in cases where a practical solution would not be effective, we may recommend a financial remedy to acknowledge the loss of amenity caused by fault in the decision-making process.
23. In Mr X’s case, it would be difficult to screen the development due to the height of the dormer. So, a financial remedy is appropriate. The Council has commissioned a report by the District Valuer providing valuations of Mr X’s property with and without the dormer roof extension to his neighbours’ property. I have considered the District Valuer’s report in reaching a recommendation for a financial remedy.
24. The District Valuer found that the dormer window overlooks Mr X’s garden resulting in loss of privacy. However, they found that the rear of his property was already partially overlooked by existing first floor windows before the extension was built so there was no additional loss of privacy to habitable rooms. I agree with this assessment.
25. The District Valuer concluded that the loss in value of Mr X’s property because of the introduction of the dormer window was approximately £2,500.
26. Having considered the District Valuer’s report, I have made recommendations to remedy the injustice caused to Mr X below.

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Agreed action

27. The Council has agreed that, within one month, it will pay Mr X £2,500 in recognition of the loss in value of his property.
28. It has also agreed that, within three months, it will 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 Council should report the outcome of the review to the Ombudsman and to the relevant Council scrutiny committee within one month from the date the review is completed.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I uphold Mr X’s complaint.
31. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman