Summary: Mr X complained about how the Council considered a planning application at a neighbouring property. Mr X said the Council failed to properly consider the impact of a loss of light to his solar panels and a habitable room. We find the Council at fault for inaccuracies in the planning case officer’s report, but we are satisfied the Council’s apology is enough to recognise the injustice this has caused.

The complaint

1. Mr X complains about how the Council considered a planning application for a development that neighbours his home. Specifically, Mr X says the Council did not properly consider the impact of overshadowing and loss of light to his solar panels and a habitable room. As a consequence, Mr X says the level of light to his solar panels and that room will decrease, and he will incur additional energy costs.

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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. 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)
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)

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How I considered this complaint

5. I considered information Mr X provided about his complaint. I also considered information received from the Council.
6. 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

Decision making and material considerations

7. Where planning permission is required, a council must decide on planning applications in accordance with its development plan unless material considerations indicate otherwise.
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 loss of light or overshadowing.
9. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission unless it is founded on valid material planning reasons.
10. Government statements of planning policy are material considerations.
11. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities).
12. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.
13. A legal judgement in 2019 concluded that interference with solar panels is a material planning consideration by reason of the part they play in addressing (however modestly, on an individual scale) issues of climate change. (McLennan, R (on the application of) v Medway Council & Anor [2019] EWHC 1738)

The Council’s local development plan

14. The Council publishes its local development plan on its website, and this sets out how it considers issues of potential overshadowing and loss of light when it comes to new planning applications.
15. The plan explains new developments should be designed to minimise their impact on existing neighbouring properties.

The Council’s supplementary planning document

16. Planning officers often use a rule of thumb, known as the ‘25-degree code’, when considering for a significant reduction in daylight to adjoining properties of new developments.
17. To do this, they imagine a 25-degree line from the midpoint of the lowest habitable room window on the neighbour’s property. If the new development crosses the 25-degree line, it is likely to affect the outlook and daylight of the neighbour. However, that does not necessarily mean a council should refuse a planning application. A council would also need to assess the significance and impact of any potential loss of daylight or overshadowing.
18. Not all councils take this approach; it is up to each council to decide its own policy, including whether to apply this rule. The Council’s supplementary planning document says the Council considers the 25-degree rule when deciding if there is a significant reduction in daylight.

What happened

19. Mr X’s neighbour made a planning application to build a property on land next to Mr X’s home.
20. Mr X objected to the plans saying the new development would cut off light to a window into his home and his solar panels, reducing their efficiency.
21. The Council’s planning case officer’s report on the application outlines the relevant local plan and policies and sets out the officer’s consideration of whether the new property would impact on residential amenity. The report said Mr X’s home would likely be affected by the development. It explained:
• The development would directly face the window of a habitable room, but this was not that room’s only window, which minimises the loss of light.
• Due to the distance between the proposed development and Mr X’s property, the 25-degree code would be breached in the middle of the day, reducing the light to that window. However, the window would still receive direct sunlight in the mornings and evenings and, overall, the impact would be minimal and would not affect privacy or outlook.
• The height of the proposed development may mean a loss of light to Mr X’s solar panels, especially in the winter when the sun is low. This is a material consideration, but Mr X could move his solar panels to reduce the impact. In any case, the orientation of the proposed dwelling and Mr X’s home meant the amount of time the panels would be obstructed from the sun would be minimal as they currently stood.
• The loss of light to Mr X’s solar panels or window was not considered significant enough to warrant refusal of the application.
22. The Council approved planning permission based on the case officer’s report.
23. Mr X complained to the Council in February 2023. Mr X said:
• The planning officer did not visit the site. If they had they would have noted his solar panels were fixed in place and could not be moved. They also seemed to be unaware of the ‘right to light’ to solar panels.
• The planning officer incorrectly said the habitable room window was not the only window serving that room and seemed to have misunderstood the 25-degree code in any case.
• The planning officer seemed to have disregarded several of the Council’s policies when making their decision and did not consider the objections Mr X had made.
• It is not for the planning officer to suggest neighbours make adjustments to their properties to allow for new developments.
24. The Council responded to Mr X’s complaint later that month. It said:
• Its notes were not clear when the site was visited, but there was enough to conclude it was at some point. The Council agreed to remind planning officers of the importance of taking clear notes in future.
• The planning officer fully considered all comments and objections before making their decision.
• The planning officer fully considered the impact on the future efficiency of Mr X’s solar panels and other amenity issues.
• The planning officer was correct to assess that the habitable room had two windows providing light to the room, as based on the floor plans of Mr X’s home. While the layout may have changed, there is no expectation on the planning officer to investigate further.
25. Mr X wrote to the Council again in March 2023 asking it to reconsider his complaint. Mr X said:
• It is grossly unprofessional that poor note keeping makes it impossible for the Council to say when a site visit took place.
• The planning officer should have requested a daylight assessment before making their decision.
• The planning officer’s report did not take objections seriously.
• The Council appeared to not respect that loss of light to solar panels is a material consideration or the impact of this on Mr X’s home.
• The planning officer failed to pick up the fact the habitable room in question only had one window and it is not enough to have checked old floor plans.
26. The Council responded to Mr X’s complaint later that month. The Council said:
• The planning officer considered all comments and objections before making their report.
• Daylight surveys are not a statutory requirement. In this case the planning officer decided they could assess the impact of the proposed development without one.
• All the policies contained in the Council’s development plan were considered before the application was decided and the report sets out how the planning officer considered them.
• The planning officer was wrong to suggest Mr X could make adjustments to his own property to accommodate the proposed development. They were also wrong in saying Mr X’s solar panels were moveable. However, they gave their judgment on the solar panels as they currently stood and decided the impact would not be sufficient to merit refusal of the application.
• The planning officer was wrong to say loss of light to solar panels is not a material consideration. But based on how they reached their judgment, this is not likely to have had a bearing on the result of their report.
• The planning officer exercised their professional planning judgment and there was no evidence the decision was flawed or failed to consider all the relevant material matters.
27. Mr X then brought his complaint to our service.
28. In response to our enquiries on this complaint, the Council said:
• The planning officer referred to the relevant planning policies in their report and correctly assessed the impact of the new development on Mr X’s home.
• The planning officer correctly applied the 25-degree code, as set out in the Council’s supplementary planning document, when assessing the loss of light to Mr X’s window.
• The impact of light on solar panels is a material consideration and the planning officer made an assessment on the impact of the solar panels. They firstly assessed there would be some impact on the solar panels but concluded this would be minimal.
• The Council accepts the planning officer made an error when saying Mr X’s solar panels were moveable. The Council has apologised to Mr X for this inaccuracy. However, the assessment was thorough in considering the solar panels in their current position and concluded the impact would be minimal. Therefore, the error did not have any material bearing on the outcome of the assessment or the final decision that was made.

Analysis

29. The Ombudsman is not an appeal body. Our role is not to consider whether a planning application should have been approved or not. We review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear reasons for its decision, we cannot criticise it. We do not make decisions for councils, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
30. I have considered the steps the Council took to consider the issue of overshadowing and loss of light as a material consideration when looking at this application.
31. The case officer’s report shows they considered and applied relevant policy, they considered whether there was an impact on Mr X’s amenity, including the loss of light to his solar panels, and they decided there was not a significant enough impact to justify declining the application. That itself is not fault.
32. The case officer’s report reads as though their judgment is based partly on the assumption Mr X’s solar panels are movable, which they are not. This is fault and would have created uncertainty for Mr X about whether the application would otherwise have been approved. This is injustice. However, the Council has already apologised for this, and I think that is a sufficient remedy to the injustice caused to Mr X.
33. I say this because, in considering the Council’s response to our enquiries and the report as a whole, I do not consider this was the main reason given for approving planning permission. The case officer accepted there would be a loss of light to the solar panels then gave a view that they did not think this would be enough to decline the application.
34. The explanation given is a matter of judgement. As the Council reached that judgement after considering the fixed position of Mr X’s solar panels, I could not say it had failed to consider the situation properly.
35. The case officer’s report also assesses the loss of light to the window of a habitable room using the 25-degree code, as set out in the Council’s supplementary planning document. The case officer accepts the 25-degree code would be breached, but decided the room would still receive enough natural light that this impact would not be enough to decline the application.
36. It seems there will be an impact on Mr X’s habitable room, as he claims. However, it does not follow that because there is an impact the Council should have refused the application. The Council would still have to go on to consider whether that impact was so significant as to warrant refusal of the application. As the Council has explained why it does not consider the impact would have led to refusal of the planning application, I could not say it should have reached a different decision.
37. As the case officer made a judgement taking into account relevant policies, I cannot otherwise question whether it was right or wrong. I find no fault in the Council’s decision-making process.

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Final decision

38. I find the Council at fault for saying Mr X’s solar panels were moveable, but I do not make any further remedy for the injustice caused.
39. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman