Summary: Mrs X complained about the Council’s decision to grant planning permission for development, which she said badly affected her home. We found no fault causing injustice in how the Council reached its planning decision.

The complaint

1. Mrs X said the Council failed to comply with its duty, to make planning decisions in line with its planning policies, in approving development near her home. Mrs X said the development was overbearing and removed light and privacy from her home. Mrs X wanted the Council to reassess the development and refuse it planning permission.

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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. Where we find fault, we must also 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) Mrs X gave her written consent for Mr Y to act for her in making this complaint.
6. 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

7. I:

• considered Mrs X’s written complaint and supporting papers;
• talked to Mr Y about the complaint;
• considered information about the development available on the Council’s website;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared information received from the Council with Mr Y; and
• asked for and considered comments from Mr Y and the Council on my draft decision statements before making a final decision.

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What I found

Background

8. Councils must decide planning applications in line with their local plan policies unless other material planning considerations indicate they should not.
9. Material considerations concern the use and development of land in the public interest, and not to private matters. Material considerations include issues such as overlooking, traffic generation and noise. Examples of private matters are an applicant’s personal conduct, views from a property and changes to property prices.
10. General planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.
11. Council planning officers will usually prepare a report assessing development proposals against relevant policies and other material planning considerations. Having considered and balanced the planning issues, the report will end with an officer recommendation to grant or refuse planning permission.
12. The courts have made it clear that 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.

13. Councils will grant permission where they consider proposals are in line with relevant planning policies and they find no planning reasons of sufficient weight to justify refusal.

What happened

14. The Council received an application for an extension to a house that shared a boundary with Mrs X’s home. Policies in the Council’s Extensions and Alterations to Dwellings Supplementary Planning Document (‘the SPD’) were relevant in deciding the application.
15. The SPD included statements about ‘daylighting and outlook’ including that:

• extensions should not unacceptably harm neighbours’ daylight, when assessing this, the Council would give particular attention to protecting principal habitable room windows;
• the bulk, height and overall massing of an extension along common boundaries should be kept to a minimum;
• original principal habitable room windows should not be made to look out directly onto two storey side elevations of extensions; and
• two storey rear extensions along or next to common boundaries should be avoided, particularly on the south facing side. Such development would only be acceptable if shown not to result in an unacceptable loss of daylight or outlook to neighbouring properties.

16. The SPD also included statements about side and rear extensions including that:

• two storey side extensions should be set back from the front of the property by a minimum of one metre behind the front main wall of the house, or by one metre from the side boundary; and
• rear extensions should be avoided where they would be next to a party boundary, particularly on the south facing side.

17. The SPD said the Council would not normally protect privacy or daylight to “…secondary, high level and obscure windows…”
18. Mrs X objected to the development. In summary, Mrs X said the extension would be within a metre of the boundary. And it would significantly reduce light to “…a large window to a habitable room…” on the ground floor of her home (‘the Window’). The extension would be overbearing and cause significant overlooking, overshadowing and loss of privacy to both her home and garden. Mrs X said the extension conflicted with the parts of the SPD set out at paragraphs 15 and 16 of this statement.
19. The Council prepared a report assessing the application (‘the Report’). The Report referred to relevant planning policies, including the SPD. The Report also listed the issues raised in objections, being the inappropriate scale of the development, overshadowing, loss of light, overlooking, and inadequate parking provision. The Report addressed three main issues: the impact of the development on the character and appearance of the area; its effect on neighbour amenity; and parking.
20. In dealing with character and appearance, the Report said the SPD said such developments should be:

• set back a metre from the front wall or side boundary to prevent a terracing effect (see paragraph 16, first bullet point); and
• sited away from a neighbouring party boundary (see paragraph 16, second bullet point).

The Report found the extension would be set back more than one metre from the front wall and be more than three metres from the party boundary of the adjoining property.

21. In dealing with the effect on neighbour amenity, Mrs X’s home was among the properties specifically referred to in the Report. The Report said the extension would not have an overbearing impact or result in a significantly harmful loss of light because of its height and separation distance from Mrs X’s home. The Report also said the Window appeared to be a ‘secondary’ window. The Report said most of the extension windows would not result in unacceptable overlooking or loss of privacy. And, where overlooking and loss of privacy was possible, any planning permission would require such windows to be obscure glazed. The Report found the extension in line with the SPD and having no undue impact on neighbours’ amenities. (See bullet points in paragraph 15).
22. The Report also found the extension in line with the Council’s Parking Standards and recommended the grant of planning permission.
23. The Council granted planning permission and Mrs X complained. Mrs X said the permission allowed a large two storey extension less than a metre from a common boundary on the south facing side. Mrs X quoted the SPD about “original principal habitable room windows should not be made to look out directly onto two storey side elevations of extensions”. Mrs X said the Window was a large window to a principal/primary habitable room and not a ‘secondary’ window as described in the Report. Mrs X also said the Window and its room were part of the original house. The extension was overbearing and took away her light. Mrs X said the decision was contrary to planning policies and the Report showed no material planning considerations indicating approval of the extension. The Council had therefore failed to comply with its duty to make decisions in line with its planning policies (see paragraph 8).
24. In the correspondence that followed, the Council’s position, in summary, was:

• the extension was set back from both the front wall of the property and the boundary with Mrs X’s home, which reduced any potential terracing effect;
• where necessary, the planning permission required new windows to be obscure glazed to prevent any overlooking and loss of privacy; and
• it did not consider the extension had an overbearing impact or resulted in an unacceptable loss of light because of:

- the height and design of its roof,

- the separation distance from Mrs X’s home, and

- Mrs X’s affected windows either serving non habitable rooms or being

secondary windows.

The Council confirmed the development complied with the SPD and there were no material considerations to outweigh the grant of planning permission.

Consideration

Introduction

25. We are not a planning appeal body and do not comment on differing views about the planning merits of applications and developments. Our role is to consider if there is evidence of fault in how councils reached their planning decisions. Without evidence of fault, we cannot question council planning decisions (see paragraph 2). Where we find fault, we must also consider whether that fault has affected a council’s decision and caused the complainant injustice (see paragraph 3).
26. Mrs X’s complaint about the Council’s decision to grant the extension planning permission, concerned two main issues. First, that the Council did not properly consider SPD policies about ‘daylighting and outlook’ when assessing the impact of the extension on her home (see paragraph 15). Second, it did not properly consider SPD policies about positioning extensions near property boundaries (see paragraph 16).

Daylight, outlook, and the Window

27. The SPD recognised that extensions would usually result in some shadowing. It therefore said loss of daylight to neighbouring homes should not cause ‘unacceptable’ harm. The SPD set out ‘general guidelines’ for assessing the effect of development on daylight and outlook. Mrs X referred to four of the guidelines in objecting to the extension (see paragraph 15).
28. Two guidelines raised by Mrs X concerned ‘principal windows in habitable rooms’ (see first and third bullet points to paragraph 15). The SPD defined ‘habitable rooms’ and there was no dispute the affected room in Mrs X’s home was a ‘habitable room’. However, Mrs X and the Council did not agree on the status of the Window. Mrs X said the Window was an original window and had not changed during the 40 years she lived in the property. The Council said Mrs X’s home had been extended and the Window was not an original or principal window. The Council said principal windows for Mrs X’s home and other properties along the road were on their front and rear elevations.
29. The evidence showed the Window was part of the original house. Both parties also said Mrs X’s home had a rear extension. That extension included the room with the Window and the extended rear elevation to that room included a half-glazed door and a smaller window facing the garden. There was no evidence showing the design and appearance of the rear elevation before the extension. The Window might be both ‘original’ and have been the main source of light for the room. But I could reach no view on this without evidence of any ‘original' window that might have been in the rear elevation before the room was extended.
30. Mrs X’s objection to the development expressly referred to the Window as a ‘large’ window (see paragraph 18). The Report said the Window appeared to be a secondary window (see paragraph 21). The evidence therefore showed the Council considered the impact on the Window in assessing the development. However, Mrs X said the assessment was wrong as it did not consider the impact of the development on the Window as a ‘principal window’ to a habitable room. The SPD distinguished ‘principal’ and ‘original principal’ windows from secondary, high level, and obscure windows. The SPD gave ‘particular attention’ to protecting principal and original principal windows. And privacy and daylight to secondary windows was not normally protected. Mrs X also said the Council should have contacted her about the Window before granting planning permission.
31. Generally principal, or ‘main’, windows are found in the front and rear elevations of houses. Housing layouts usually provide for less space between the side walls of neighbouring houses. So, rarely are main windows of habitable rooms found in side elevations. There was no legal duty on the Council to contact Mrs X for more information on her objection, including about the Window. As the Window was in a side elevation, I did not find the Council’s view, that it appeared to be a ‘secondary’ window, unsustainable.
32. However, what would the position be if I accepted the Window was the main light source for the room? If the Council had, at the time of its decision, recognised the Window as a ‘principal’ window, it would still have needed to consider policies in the SPD. And, as a principal window, those policies would need the Council to give the Window ‘particular attention’. The SPD also recognised there ‘might be some cases where a principal, original habitable room window was in a side elevation’ and significantly closer than 12 metres to the neighbouring property. The SPD said such cases would be assessed on their own merits. The assessment would consider if reducing the separation distance would have a materially harmful impact on the outlook from the window to justify refusing planning permission.
33. Here, the Council said, based on the siting, location and design of the property and its proposed extension, the reduced separation distance would not result in a harmful loss of light to the Window. It confirmed the planning permission addressed any privacy issues by requiring obscure glazing for new windows in the side extension. Mrs X said the Council was trying, after the event, to justify a decision based on a material error. Mrs X pointed to the SPD saying ‘original principal habitable room windows should not be made to look out directly onto two storey side elevations of extensions’.
34. I recognised Mrs X found the development and the Council’s ‘after the event’ views unacceptable. However, if I found the Council had acted with fault in dealing with the Window, I would need to reach a view on whether that fault had affected its planning decision. Here, the Report showed the Council had the SPD in mind throughout its assessment of the development. The SPD did not ban extensions that reduced light and outlook from principal windows. Neither did it ban extensions where a principal window would look out directly onto the side elevation of a two-storey extension. The Council needed to exercise its planning judgement, which included an element of subjectivity, to assess and decide whether such development would cause unacceptable planning harm.
35. Here, reading the Report as a whole, I found the Council understood the scale, mass and position of the proposed extension in relation to Mrs X’s home. It also took account of the SPD. The Council’s original decision referred to the height of the extension and the separation distance as well as the ‘secondary’ Window in deciding there was no unacceptable harm to Mrs X’s home. On balance, I did not find the Council would have reached a different decision, and refused planning permission, if it had considered the Window a principal window. Mrs X would therefore find herself in the same position, living next door to a property with planning permission for the extension.
36. Mrs X also pointed to the SPD saying two storey rear extensions should be avoided near common boundaries, particularly on the south facing side (see paragraph 15, fourth bullet point). The SPD also said such extensions would be acceptable if shown not to result in unacceptable loss of daylight or outlook to neighbouring properties. Here, there were differing interpretations of what the SPD meant by ‘on the south facing side’. However, the SPD does not ban extensions ‘on the south facing side’. And the Report provided evidence the Council had considered the impact of the extension on daylight and outlook to Mrs X’s home. I therefore found no fault on this issue.

Boundaries and the position of the extension

37. The SPD referred to the Council’s concern about two storey side extensions resulting in a terracing effect in areas of detached and semi-detached housing. So, the SPD said such extensions should be set back by at least one metre from the front wall of the house or the side boundary. Here, Mrs X pointed to the extension being less than a metre from the side boundary. This was not in dispute. (See paragraphs 16, 20, 23 and 24).
38. However, to prevent a terracing effect, the SPD gave the developer a choice: to set back from the front wall or the side boundary. Here, the two-storey side extension was set back over a metre from the front wall of the property and so complied with the SPD (see paragraph 16, first bullet point). I therefore found no fault here.
39. The SPD referred to both ‘party’ and ‘common’ boundaries. References to ‘party’ boundary appeared when the SPD dealt with rear extensions (see paragraph 16, second bullet point). The SPD sought to avoid a rear extension having an overbearing impact or unacceptable loss of outlook and overshadowing. There were differing views about whether a ‘party’ boundary meant, for semi-detached properties, the boundary between the two attached semis. Mrs X said a ‘party’ boundary included the neighbouring properties to both sides of the house being extended. Mrs X pointed to other Council planning decisions where it had considered both neighbouring properties when assessing the impact of a rear extension. Mrs X said, in assessing the development, the Council had failed to consider the relevant SPD policy about rear extensions and her ‘party’ boundary.
40. Reading the Report as a whole, I found the Council acted without fault as it had considered the substantive issue covered by the SPD about rear extensions. The Report included the measurements for the rear extension. And, in relation to Mrs X’s home, the Report found the development would not have an overbearing impact or cause a significantly harmful loss of light. I recognised Mrs X strongly disagreed with the Council’s view. However, having considered the substantive planning issue, the Council was as entitled to its view as Mrs X was to hers.

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Final decision

41. I completed my investigation finding no fault causing injustice in how the Council reached its planning decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman