Summary: We ended our investigation into Mr X’s complaint about the Council’s decision to approve his neighbour’s planning application. This is because it is unlikely we would find fault and a further investigation would not lead to a different outcome.

The complaint

1. Mr X complained the Council approved his neighbour’s planning application to extend their home without considering the development would cause loss of light on his property. Mr X also said the Council did not approve the application in line with its own guidance. He wants the Council to provide him with a financial remedy.

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The Ombudsman’s role and powers

2. 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
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

3. 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.
4. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Planning law and guidance

5. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
6. Planning considerations include:
• access to the highway;
• protection of ecological and heritage assets; and
• impact on neighbouring amenity.
7. Planning considerations do not include:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. 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.
9. Some councils include this test, or versions of it, in their published Supplementary Planning Guidance, which shows how they apply policy to protect amenities. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed.
10. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision but to demonstrate the decisions were properly made and due process was followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
11. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key material issues.

The Council’s Supplementary Planning Guidance

12. The Council’s guidance states:
• when it assesses development proposals for rear extensions, it will use a 45 degree rule of thumb. The 45 degree rule of thumb seeks to prevent excessive loss of light or overshadowing to habitable rooms of neighbouring properties.
• single-storey rear extensions should be designed to a maximum depth of 3.5 metres. Two storey extensions can be problematic and are unlikely to be accepted beyond 2.75 metres.
13. The guidance also states the Council can relax the above standards in consideration of other factors.

What happened

14. Mr X lives in a detached property.
15. Mr X’s neighbour submitted a planning application to the Council. They wanted to extend their home with a two-storey rear extension to provide additional living accommodation.
16. The Council reviewed the planning application and considered if the proposed development would have an impact on the amenities of neighbouring properties. The Council’s Case Officer’s report said:
• the proposed development would be at a significant distance from neighbouring properties. It would be close to meeting the 45-degree rule but there would be no impact to the existing levels of amenities of neighbouring properties; and
• the proposed development would not comply with the 3.5 and 2.75 metre rule however, given there are other two-storey extensions within the area and that it would be at a significant distance from neighbouring properties, the scale was acceptable.
17. The Case Officer also considered any comments from neighbouring properties including comments from Mr X. Mr X said the proposed development would result in loss of light on his property.
18. The Council decided the proposed development would not have a detrimental impact on the amenities of neighbouring properties, such as loss of light or overshadowing, and so approved the application.
19. Following this, Mr X complained to the Council. He said:
• the Case Officer’s report did not consider whether there may be some loss of light on his property;
• the Council did not consider its Supplementary Planning Guidance when it reviewed the application because the proposed development did not meet the 45-degree rule and did not comply with the maximum depth scale; and
• the Council did not consider his comments.
20. The Council responded to Mr X’s complaint. It said:
• it acknowledged the proposed development would cause some loss of light on Mr X’s property and so the Case Officer’s report was inaccurate. Therefore, it should not have said there would be no change to the amenity of neighbouring properties. However, the loss of light on Mr X’s property would not warrant the Council to refuse the application. Even if the Case Officer’s report had stated the proposed development would cause loss of light on neighbouring properties, it still would have approved the application;
• the Council can relax the rules detailed in its Supplementary Planning Guidance; and
• the Council considered all objections it received from neighbouring properties.
21. Mr X remained unhappy and complained to us.

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Findings

22. 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.
23. Before we begin or continue our investigations, we consider:

is it likely there was fault; or

24. 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.
25. 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.
26. I have decided not to investigate Mr X’s complaint further. This is because:
• I am unlikely to find fault. The Case Officer’s report shows the officer considered comments from neighbours, including Mr X. In addition, as outlined in paragraph nine and 13, the Council can relax the rules set out in its Supplementary Planning Guidance, considering other factors. The Council explained why it deviated from the guidance in its Case Officer’s report; and
• the Case Officer’s report did consider the impact of the extension on neighbouring light amenity. Although the Council recognised part of its Case Officer’s report was inaccurate when it said there would be no impact, it is unlikely this would have changed the outcome of the planning application. A further investigation would not achieve a different outcome. Furthermore, as outlined in paragraph 11, case officer’s reports do not need to be perfect.

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Investigator's decision on behalf of the Ombudsman