Summary: Mr B says the Council failed to consider the impact a development would have on him and failed to consider his objections. The Council failed to properly consider the impact the development would have on Mr B’s solar panels and kitchen and failed to link all his objections to the planning record. That likely did not affect the decision to approve the application. An apology, payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to consider the impact a development would have on his solar panels;
• failed to consider the impact a development would have on privacy to his kitchen; and
• failed to consider his objections and then destroyed those objections.
2. Mr B says the Council’s actions mean his solar panels are no longer as effective and he is overlooked.

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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. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B and the organisation 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

What should have happened

8. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise but do not include right to light as that is a civil matter.
9. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
10. A legal judgement in 2019 (McLennan, R (on the application of) v Medway Council & Anor [2019] EWHC 1738) concluded that interference with solar panels is a material planning consideration by reason of the part played by them in addressing (however modestly, on an individual scale) issues of climate change.

What happened

11. Mr B lives in a bungalow. The neighbouring property is also a bungalow. Mr B has solar panels on part of his roof, next to his neighbour’s property and roof lights. Mr B’s neighbour applied for planning permission to increase the height of the roof and construct dormer windows on the side roof elevation facing Mr B’s property. Mr B objected to that application due to concerns about overlooking through his roof lights and the impact the increased height would have on his solar panels. The Council granted planning permission for the development.

Analysis

12. Mr B says the Council failed to consider the impact the development would have on his solar panels. Mr B says he had shown overshadowing caused by the increased roof height and dormer windows would affect sunlight to his solar panels which would then impact on their performance.
13. I am satisfied the report for the planning application noted Mr B had solar panels on his roof next to the application site. The report also recorded Mr B’s objection relating to loss of light to those solar panels. However, when discussing the impact the development would have in terms of overshadowing the report does not explain whether it is referring to overshadowing in general or overshadowing of the solar panels. I do not consider it likely, on the balance of probability, the Council properly assessed how the development would impact on the performance of Mr B’s solar panels given there is no explanation as to why officers considered the impact acceptable. Nor is there any reference in the report to the additional information Mr B provided about the percentage impact on performance the increased height of the development was predicted to have. Failure to properly consider Mr B’s objections and how the development would impact on his solar panels is fault.
14. The Council says it would have had to take into account what Mr B’s neighbour could build under permitted development rights. The Council says under permitted development rights Mr B’s neighbour could have built dormer windows on the side of the existing roof and this would have a similar impact on overshadowing of Mr B’s solar panels. The Council therefore says it is unlikely it could have refused the application due to Mr B’s concerns about the impact on his solar panels in those circumstances.
15. Had the Council relied on what Mr B’s neighbour could build under permitted development rights when it granted planning permission I would have expected the report to record that. However, there is no reference to permitted development rights and how a development built under permitted development rights would impact on Mr B’s solar panels in the report. Nor is it a matter the Council referred to when responding to Mr B’s complaint. I therefore do not consider it likely the existence of permitted development rights were pivotal matters for the Council when it granted planning permission for the development.
16. In any event, the approved development increases the height of the roof which is the impact Mr B is concerned about. That increased roof height affects the positioning of the dormer windows. As the Council will know, Mr B’s neighbour could not have increased the height of the roof had he constructed dormer windows under permitted development rights. I therefore do not consider the two developments have the same impact.
17. I note though the Council has said due to the orientation of the two properties and the separation distance officers considered this would limit the impact of overshadowing on Mr B’s solar panels to an acceptable degree. That is an assessment the Council should have included in the report for the planning application. Failure to do that is fault. Having considered the plans for the development and the photographs Mr B provided though I do not consider it likely the Council would have refused the application or sought amendments to it had it properly considered the impact on Mr B’s solar panels. That is because, as the Council has pointed out, there is separation between the solar panels on Mr B’s roof and his neighbour’s property. I also note Mr B’s own calculations show although there will be an impact on the performance of his solar panels that impact is relatively small in percentage terms. So, while I consider the Council at fault for failing to explain its reasoning in the report I do not consider it likely that impacted on the decision reached.
18. In reaching that view I understand Mr B is concerned the Council has approved a development it knows will impact on his solar panels. Mr B appears to believe planning permission cannot be granted if there is an impact on a neighbouring property. However, that is not the case. Most developments have an impact on someone. The role of the planning process is to decide whether that impact is acceptable in planning terms. That is not the same as saying it is acceptable to the neighbouring property. In this case although I am not satisfied the Council properly considered the impact the development would have on Mr B’s solar panels when it granted planning permission I do not consider it likely that affected the decision to grant permission, for the reasons already given.
19. I recognise part of Mr B’s concern here is the additional electricity costs he will have to cover due to the reduced performance from his solar panels. I understand his concern about that. However, the financial impact of a development on a neighbouring property is not a material planning consideration. So, whether the development would result in Mr B having to pay more electricity costs is not something the Council could have considered.
20. Mr B says the Council failed to consider the impact the development would have on overlooking of his kitchen/diner. The Council accepts when granting planning permission it failed to refer to Mr B’s concern about overlooking through his rooflights into the kitchen. Instead, the report only referred to the impact of overlooking to a side kitchen window. Failing to address the concerns Mr B raised about overlooking of his kitchen through the rooflights is fault.
21. The Council says though it considers any overlooking of Mr B’s kitchen through the dormer window would be oblique and limited due to the separation distance and arrangements for the dormer and roof. Those are matters the Council should have addressed in the report for the planning application. Failure to do that is fault. Having considered the plans for the development and the photographs provided by Mr B I do not consider it likely, on the balance of probability, the decision on the planning application would have been different had the Council addressed the issue of overlooking of the rooflights. That is because I am satisfied there is no direct overlooking between the dormer window and the rooflights and it is more a perceived ability to overlook with the dormer window at an oblique angle, as the Council has indicated. In those circumstances although I consider it fault for the Council not to refer to the impact on the rooflights when considering the planning application I do not consider it likely that affected the decision.
22. Mr B says the Council failed to link his objections to the electronic record or respond to him. Mr B says those emails have now been lost as the officer left the Council’s employment and her inbox no longer exists. I have seen a copy of the emails Mr B is referring to. I am satisfied Mr B put in those emails as part of his follow-up objection to the planning application. The Council would not normally acknowledge objections to planning applications. However, the Council should have uploaded those objections to the online planning application records and the report for the planning application should have referred to them. The additional information Mr B provided in those objections was not recorded in the report for the planning application or uploaded to the planning file. That is fault.
23. I am satisfied though the additional information Mr B provided in those emails concerned more detail about the impact on the performance of his solar panels once the development was completed. As I say in paragraph 17, I do not consider it likely if the Council had properly considered the impact the development would have on Mr B’s solar panels it would have reached a different decision. So, while it is fault not to refer to the additional objection in the report I do not consider it likely that affected the outcome.
24. I have therefore found fault as the Council failed to properly consider the impact the development would have on Mr B’s solar panels and privacy in his kitchen when it granted planning permission for the development, failed to consider all his objections and failed to link some of those objections to the planning record. While I do not consider those failures affected the outcome of the planning application I consider Mr B has suffered distress at feeling the Council failed to properly consider the impact on him when it granted planning permission. In those circumstances I recommended the Council apologise to Mr B and pay him £300. The Council has agreed to my recommendation.

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Agreed action

25. Within one month of my decision the Council should:
• apologise to Mr B and pay him £300;
• remind planning officers of the need to ensure all objections are uploaded to the online record for the planning application and considered in the report for the application.

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Final decision

26. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman