Summary: Mr X complains the Council failed to properly consider the impact of a neighbour’s plan for an extension. He says his house and garden will be overshadowed by the extension. We find there was fault by the Council. However, the outcome would not have changed.

The complaint

1. Mr X complains the Council did not properly consider his objections to his neighbour’s planning application for a two storey extension to his home. Mr X says that the Council did not consider the impact on his home of overshadowing, and made errors in its assessment and its report.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 discussed the complaint with the complainant and considered the information provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

5. Where planning permission is required, a council must decide on planning applications in accordance with its development plan unless material considerations indicate otherwise.
6. 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.
7. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.

Case officer reports

8. 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 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.
9. 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.

What happened

10. In 2021 Mr X’s neighbour (the applicant) applied for planning permission for a first floor extension, and a rear extension. The front of the applicant’s property was set further away from the road than Mr X’s home, and so its side elevation was visible from the rear of Mr X’s home.
11. Mr X objected to the plan. He said there would be massive visual intrusion and overshadowing and loss of sunlight. He said the planned 6 metre high vertical gable wall would tower over his home. He said it would create shadow in his garden most of the day and he would lose the sunlight in his rear living rooms from October until March. In summer there would still be an extensive shadow which would cover half the garden apart from two hours a day. He also said that his kitchen window to the side would be in shadow for most of the day.
12. The applicant later revised his plan and changed a section of the roof from gable to pitched.
13. Under the Council’s scheme of delegation, the case officer completed his report recommending approval of the plan. He considered the impact on Mr X’s amenity. He said that there was already an impact from the existing property because a 45-degree angle from the nearest rear window in Mr X’s home was already interrupted by the existing arrangement.
14. The report considered whether the proposed works would impact the amenity to any significantly greater degree than the existing arrangement. It said that the proposed works would only project to the rear marginally at a single-storey height and whilst the planned gable end projections to the sides would undoubtedly increase the impact on Mr X’s home to a degree, a 45 degree angle taken from the vertical elevation of the near rear window of Mr X’s home would not be interrupted by the proposed alterations to the application property.
15. The report continued but a sentence in the “amenity” section which appeared to state the officer’s conclusion, was not complete.
16. A senior planning manager approved the plan.
17. Mr X complained to the Council that it had not properly considered the application He said it would significantly affect his home in terms of overshadowing and overbearing. He questioned the Council assessment of the 45 degree rule. He noted the Council had not reconsulted him regarding the changes to the plan. He said the report contained an incomplete sentence.
18. The Council replied that it was not always necessary to reconsult when an amended plan reduced the impact on neighbours, as was the case here. The Council said the new plan sought to address and reduce the impacts he raised such as overshadowing and loss of sunlight.
19. The Council accepted that the report contained an incomplete sentence. It should have said that “the proposed works are not considered to result in a significantly greater impact on the neighbour….” [Mr X].
20. The Council confirmed the case officer visited the site. The Council discussed the officer’s calculations with the officer. He confirmed that a horizontal 45 degree angle taken from the rear of Mr X’s house was already interrupted by the existing building and he considered a single storey projection would not result in a significantly greater impact given the robust boundary treatment, (a wall and trees). The Council provided a plan showing the 45 degree angle from the rear of Mr X’s home currently and as proposed.
21. The Council also explained the officer had considered that a vertical 45 degree angle taken from Mr X’s rear window would not be interrupted by the extension. The Council said its officer considered the orientation of Mr X’s building. His considered that given the decrease in scale and massing compared to the original proposal, there would be very little, if any loss of light or sunlight Mr X’s rear garden at all times of day.
22. Mr X complained further that it was not just that he was not reconsulted. It was about the impact of the overpowering gable wall on his property. He said the amended plan did not make any difference as it was just a small triangular section taken off the gable wall. He did not agree with the case officer’s assessment and his interpretation of the 45 degree plane. Mr X provided photos and diagrams of the planned elevations showing his calculation of the impact of the plans. He said this showed the gable would be three times its current height and this would be extremely visually intrusive. He said it would have a very severe impact on his property and quality of life.
23. Mr X asked who checked and signed off case officer reports. No one had noticed that there was an incomplete sentence.
24. Mr X said the Council referred to the 45 degree plane in relation to his rear window, but it had not considered the side kitchen window. This was not affected by the current building but would be affected by the proposed gable roof. He said that he had raised this in his objection, but it had not been addressed.
25. Mr X said he did not believe the case officer visited the site. He questioned the officer’s assessment of the 45 degree planes. In his view the officer had relied on the architect’s drawings rather than doing his own calculation and assessment. Mr X said the spacing on the drawings was incorrect. He said the 45 degree angle was interrupted by the proposed gable. As it was so high it would have a huge impact.
26. Mr X disagreed with the case officer’s statement there would be little if any loss of light or sunlight. He said that his garden was already affected by some overshadowing but now the whole of the garden would be overshadowed in the winter, and the back of his house. In summer the overshadowing would allow only a short period of sun in the garden.
27. The Council replied at stage two of its complaint procedure. It apologised for the incomplete sentence and confirmed that case officer reports were signed off by a senior officer before the Council issued its decision.
28. The Council confirmed the case officer had visited the site and had assessed the impact on Mr X’s home from the rear garden of the applicant’s property.
29. The Council agreed that the scale on its PDF measuring tool was incorrect. However, having discussed the issue with the case officer it stated that the scale on the plans was correct. The case officer corroborated this using its planning case management system and Google maps before making a decision on the application. The case officer had also confirmed he was aware of the error on the plans but was able to scale from the plan and form a view of the impact on Mr X’s property. He considered the impact on Mr X’s property would be minimal and would not result in an unacceptable detrimental impact on his amenity.
30. The Council apologised for its errors and considered whether if it were not for the errors, it would have made a different decision. It said it considered the case officer had come to a sound and reasoned judgement taking account of relevant planning policies. The Council said the officer had considered the impact on Mr X’s amenity and considered this was not sufficient to warrant refusal of planning permission.
31. Mr X remained dissatisfied with the Council’s response. He wrote to the Council in September 2022 and then brought his complaint to the Ombudsman. He said
• the Council’s complaint response was not independent of the planning department.
• The Council failed to take account of the errors and simply repeated the impact was minimal.
• The Council had not commented on the impact on his side kitchen window.
32. The Council did not respond to Mr X’s further complaint.

Our enquiries

33. In response to our enquiries the Council confirmed that it has now corrected the report, completing the missing sentence as the planning officer intended.
34. I asked the Council how it had considered the impact on Mr X’s kitchen window, as it had not responded to this at stage two of its complaint procedure. It explained that its case officer reports are “light touch” in view of the volume of householder applications it must consider. It said that all elements of a proposal are considered. However, they may not be addressed in detail in a case officer’s report and the findings are more generally summarised. In its view it had summarised its consideration “in the round”.
35. The Council provided photographs from the case officer’s site visit, and it commented that:
• The kitchen window was heavily obscured by the boundary treatment
• The proposed plan would introduce a dormer to the front of the building but this would not result in a loss of sunlight
• This was particularly so because no part of development would sit directly in front of Mr X’s house.
• The applicant’s building was not being brought any closer to Mr X’s house.

Analysis

36. 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.
37. I consider there was fault by the Council as its report contained an incomplete sentence. The missing section included part of the Council’s decision regarding the impact on Mr X. I consider this fault caused distress and potentially uncertainty to Mr X. However, the Council has explained the officer’s intended comment and apologised. I consider the Council’s apology and correction to the report is an appropriate remedy in the circumstances. I consider this was a one-off error rather than a routine fault.
38. In response to my enquiries the Council provided further information about its consideration of the impact on Mr X’s side kitchen window. The case officer noted that there would be an increased impact from the gable end projections but did not consider this would result in a significantly greater impact. I consider there is no evidence of fault in its consideration of this matter, or in its decision making. I recognise Mr X disagrees with the case officer’s judgment, because he considers the impact is greater, but it is not for us to say the judgement is wrong.
39. However, while I note the Council normally summarises issues in its report, and we would not expect every single detail to be addressed, it was a distinct matter that Mr X raised as an objection. In addition, the potential impact on the window was different to that discussed on the rear facing windows. Therefore, I would have expected the Council to comment on this, and explain its consideration of it, even if briefly. I consider this is fault. However, as I explain in paragraph 38, having seen the Council’s assessment of this I am satisfied that the decision would not have changed.
40. Mr X complained the Council’s stage two complaint response was not independent as the director of planning responded. However, I do not consider that the Council’s complaint procedure required an officer from a different department to respond. I have not seen evidence that the officer was involved in the planning determination. I have not found fault here.

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Final decision

41. There was fault by the Council, but this did not affect the planning decision. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman