Summary: Mr X complained the Council failed to properly consider a planning application which will allow an unacceptable development and cause issues of overlooking and loss of daylight. We found fault by the Council but consider the agreed action of an apology, symbolic payment and guidance to staff provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on his own behalf and for a neighbour that the Council failed to properly consider a planning application to build a two-storey extension. In particular, Mr X says the Council:

• ignored historical planning restrictions;
• ignored objections;
• falsely stated green screening would be available;
• breached its own residential design standards and policy restrictions; and
• wrongly stated there were similar extensions in the immediate locality.

2. Mr X says because of the Council’s fault both he and his neighbour will suffer from an unacceptable development with issues of overlooking and loss of daylight.

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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 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. 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)
5. When considering complaints 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.
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 read the papers provided by Mr X and his neighbour and discussed the complaint with Mr X. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and considered the comments received before reaching my final decision.

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What I found

Background

8. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
9. 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.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
11. Government statements of planning policy are material considerations. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
12. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
13. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.

What happened

14. The following is a summary of key events. It does not include everything that happened.
15. The Council received a planning application for a two storey side extension. The Council received three representations in response to its publicity about the application. These included concerns about the impact of the proposals on the existing levels of privacy, daylight and sunlight with reference to previous permissions which had highlighted these issues. There were also concerns about emergency access and drainage. Mr X did not make representations as he was away during the publicity period. Mr X’s neighbour did make a representation together with other neighbours.
16. The case officer’s report set out the details of the proposals and their relationship within the application site and to the surrounding properties including those of Mr X and his neighbour. The report also set out the material considerations which included the relevant policies and impact on the amenity of neighbouring properties.
17. In terms of residential amenity, the report highlights privacy, outlook, daylight and sunlight and provides an assessment of the impact of the proposals with specific reference to the properties of Mr X and his neighbour. The assessment noted the proposals would not be an overly dominant structure on the boundary lines or create an enclosing effect on adjacent properties in terms of proximity or scale. It was also not considered the scale and massing would be overbearing or create a sense of enclosure on adjacent properties. The assessment also noted two windows on the side elevation of the first floor facing the rear gardens of neighbouring properties would be obscured. The assessment noted the proposals would be set back from the shared boundary (including Mr X and his neighbour’s properties) by approximately one meter and would not have an adverse impact on their amenities. There is a checklist at the end of the report which asks how any assessment of overlooking and impact on the windows of neighbouring properties in terms of daylight and sunlight has been made which notes the assessment has been made using images provided with the application and Google Earth. The case officer recommended approval of the application.
18. The report stated there were no representations received from the public. This was incorrect as there had been three representations made to the Council as set out above. The report also refers to the relevant planning history being contained in an appendix which is not attached. The Council has provided a copy of the relevant planning history to the Ombudsman which is an extract from its system dated at the end of February 2024.
19. In response to Mr X’s complaint about how the Council had considered the application, it visited the site and provided an updated assessment to address the concerns he and other neighbours had raised. Based on a review of the aerial images the Council found that it was likely the extension would encroach into the 25 degree area and so was likely to have some impact on daylight and sunlight on the garden area and rear windows of neighbouring properties. However, it was considered, on balance, that the separation distance, depth of the gardens and constrained nature of the site meant this would not have warranted a reason for refusal. The Council noted there would be no ground floor windows in the side elevation and the two small windows on the first floor served bathrooms which were not habitable rooms and would be obscure glazed and so there was no unacceptable loss of privacy.
20. The Council has confirmed in its response to the Ombudsman that the relevant tests for daylight and sunlight do not form part of the validation requirements for this type of application and it would not be proportionate to seek them as part of the case officer’s consideration of a domestic extension given the scale of the development. The Council has also provided details of other similarly sized extensions in the area for which it has granted planning permission.

My consideration

21. 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. 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.

22. There was a significant omission in the case officer’s report as it did not include the representations received or provide an assessment of the specific issues these had raised particularly in terms of daylight and sunlight. There is also no contemporaneous evidence the Council properly considered the relevant planning history as the relevant information is not included in the report and the appendix referred to was not attached. The planning history report provided to the Ombudsman was produced more recently. I consider these omissions constitute fault.
23. Mr X has questioned the reference to green screening mitigating the impact of the visibility of the proposals as he says it is not possible to provide screening between the properties due to the limited space. However, the report appears to be referring to existing green screening and the impact on the public realm in this section. I see no particular fault here.
24. In order to assess any injustice to Mr X and his neighbour I have gone on to consider if the Council would have reached a different decision but for the fault identified above.
25. Whilst noting the previous planning history this does not preclude any future development including additional windows or bringing the development closer to existing properties. The Council must assess each application on its own merits.
26. There is clear evidence the Council considered the scale and proximity of the proposals in relation to neighbouring properties in terms of both privacy and whether the development have an overbearing impact. However, there is less evidence of the consideration of the impact on sunlight and daylight to neighbouring properties. This is limited to the checklist at the end of the case officer’s report which provides no detail of how the proximity and orientation of the proposals had been assessed in relation to these issues.
27. I have noted the Council’s subsequent assessment following a site visit identified it likely the extension would encroach into the 25 degree area and so was likely to have some impact on daylight and sunlight on the garden area and rear windows of neighbouring properties. The Council’s view is that the impact would not be enough to have warranted refusal of the application.
28. Based on all the information provided, on balance, I do not consider the Council would have reached a different decision but for the fault identified above. This means there are no grounds for me to recommend a remedy for any impact on Mr X’s residential amenity or that of his neighbour.
29. However, I am satisfied that Mr X and his neighbour have been put to avoidable inconvenience and frustration in trying to understand how the Council had considered the impact of the development on their homes because of the fault identified above.

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Agreed action

30. The Council will take the following action to provide a suitable remedy within one month of my final decision:
1. write to Mr X and his neighbour to apologise for the fault identified above;
2. pay Mr X and his neighbour £150 each to recognise their avoidable inconvenience and frustration; and
3. remind relevant staff of the Ombudsman’s expectations about giving clear reasons for its decision making as set out in our Principles of Good Administrative Practice.
31. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman