Summary: Ms C complained the Council wrongly granted her neighbour prior approval to add an additional storey to the property. She also said it was biased and intentionally caused delay in its complaints handling. We have not found enough fault in the process the Council followed to reach its view, it therefore reached a decision it was entitled to make. Nor did we find any evidence of bias and it responded to her complaint in line with its policy.

The complaint

1. The complainant, whom I shall refer to as Ms C, complained the Council wrongly granted her neighbour Prior approval for an additional storey on an existing bungalow. She said this was because its decision was based on incorrect measurements.
2. She also complained about delays in the Council’s handling of her concerns as this meant she was unable to judicially review its decision, and raised concerns about bias by the Council.

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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. 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 my investigation, I have:
• considered Ms C’s complaint and the Council’s responses;
• discussed the complaint with Ms C and considered the additional information she provided; and
• considered the relevant planning documents, law, guidance and policy to the complaint, including the information the Council provided in response to my enquiries.
7. Ms C 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

Relevant law and guidance

Permitted development and prior notification

8. Not all development needs planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
9. Some permitted development proposals need an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues, impact on neighbouring amenity, and access to the highway. These applications are known as ‘prior notification’ or ‘prior approval’ applications.
10. The enlargement of adding one additional storey to an existing one storey property requires a prior approval application. Councils should approve such applications when it meets set criteria and, if in the council’s view, the impact on neighbouring amenity is not significantly impacted. (The Town and Country Planning (General Permitted Development) (England) Order 2015, Schedule 2, Part 1, Class AA)
11. The ’45 degree rule’ is guidance to planning authorities when considering the impact of new developments on windows in nearby existing properties. Horizontal and vertical measurements determine whether the new development will cause loss of light to nearby property.

Officer’s report

12. 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.
13. 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

14. In early 2023 Ms C’s neighbour applied to the Council for prior approval to add an additional storey to a bungalow.
15. Ms C, another neighbour and the local council objected to the proposal. The key concerns were:
• the design of the proposal and it did not adhere to the local Neighbourhood Plan which sought to limit the reduction of bungalows in the area; and
• the impact on neighbouring residential amenity as it was overbearing and would cause a loss of light.
16. The Council considered the proposal and conducted a site visit where it spoke with Ms C’s neighbour. It also spoke with Ms C and viewed the proposed development from her home and garden.
17. Following the Council’s site visit Ms C’s neighbour submitting revised plans, which included changes to the materials used, windows, and reduced the height of the development.
18. In Spring 2023 the Council decided to grant prior approval to Ms C’s neighbour. The Officer’s report set out how it had considered the application. This said the two key considerations were:
1. whether the development met the criteria for permitted developments within the specified Class AA for enlargement of a house by constructing an additional storey. It found it met the criteria following the changes in the revised plans and the local neighbourhood plan was not a material consideration for a prior approval application.
2. whether the development should be granted having regard to the impact on residential amenity. It found:
• there was no impact on privacy as no overlooking windows were proposed;
• there was a potential loss of light for Ms C, but it found this to be acceptable as it would not cause a significant loss of light. It considered the 45-degree rule, the existing daylight, and the layout of windows in Ms C’s property to reach its view; and
• the proposal would not result in a significant overbearing impact to Ms C. This was because the development would be set back approximately 2 metres from Ms C’s property and the proposal would only increase the height with 2.5 metres. It also had regard to the garden space Ms C’s property benefitted from.

Ms C’s complaint

19. Ms C complained to the Council about its handling of the prior approval application. She said:
• it had reached a wrong decision based on the relationship between the two properties. This included proximity of the properties and inaccuracies in the officer’s report as the proposal would be set back with 3.5 metres from the first floor storey of her property, and this would be over six meters for the second storey part of her home;
• the Council’s site visit to her home was brief and no measurements were taken of her neighbour’s proposal. She questioned how the measurements in the officer’s report had been reached;
• previous approved and refused applications for similar developments in the area were relevant; and
• she believed the officer may have been biased towards her neighbour. This was because her neighbour had submitted revised plans on the last day to make comments. She also said discussions had taken place between the officer and her neighbour, and the Council had extended its decision deadline as a result.
20. A month later, the Council responded to each point of Ms C’s complaint. It accepted the officer’s report’s reference to her neighbour’s development being set back two metres were more likely to be 3.5 meters and apologised. However, it did not uphold her complaint. It explained it had properly considered and assessed the proposal through its site visit. This was because its officer had a clear understanding of the plans and layout of the buildings before he reached his view on the impact on residential amenity. It also said it was normal practice to discuss an application with the applicant, and Ms C had no right to appeal its planning decision as a neighbour.
21. Ms C asked the Council to reconsider her complaint under its stage two complaints process. She questioned how the Council had obtained its incorrect measurements. She also said its complaint response had taken 4 weeks which impacted her ability to seek a judicial review of its decision. She asked the Council to revisit the site and wanted it to arrange for removal of trees on the property boundary to mitigate her loss of light.
22. In its final response, the Council did not change its view. It explained it had not deliberately delayed its complaint response to prevent her judicial review rights. It also said it had not found it reasonable to request her neighbour to remove trees as a result of the proposal.
23. Ms C asked the Ombudsman to consider her complaint as she remains dissatisfied with how it handled the prior approval process and her complaint. She also said some of her neighbour’s development had not been completed as set out in the approved plans.

Analysis and findings

The prior notice approval

24. It is agreed the officer’s report was inaccurate regarding the approximate length of the development in comparison to Ms C’s property, which was not set back 2 metres but closer to 3.5 meters.
25. However, the Council found its officer had a clear understanding of the proposal before it made its decision. I have not found enough fault in the process the Council followed to reach its view. In reaching my view, I was conscious it:
• visited the site and Ms C home to reach a view on the proposal’s impact on her amenity. As the development was only on top of the existing bungalow, the size and length of the development was clear to the Council without exact measurements;
• discussed concerns about the proposal with Ms C’s neighbour which reduced the height and led to some alterations in the plans. This shows it had regard to the permitted development rules and the potential impact on neighbouring amenity. It is not fault by the Council to discuss planning applications or prior approvals with the applicant. This is normal practice for the Council to satisfy itself it has a clear understanding of a proposal and to highlight any concerns it may have;
• considered the 45-degree rule and found any impact of light would not significantly impact Ms C to habitable and non-habitable rooms based on light from other windows;
• considered whether the proposal was overbearing or impacted Ms C’s privacy. It found there was no impact on privacy and there was some overbearing impact, but this was not significant enough to justify a refusal; and
• had regard to previous applications for similar developments in the area and the officer’s report correctly made it clear the local Neighbourhood Plan was not a material consideration for a prior approval application.
26. While I acknowledge the officer’s report had inaccurate approximate measurements for the length of the proposal, the exact measurements were not a requirement for the prior approval. The Council was therefore entitled to reach is view based on its site visit. Without fault in the process the Council followed to do so, I cannot criticise its decision.
27. Also, I understand Ms C wanted the Council to arrange for some trees and vegetation to be removed from the property boundary to mitigate the loss of light impact her neighbour’s development had. However, such concerns are normally not part of the prior approval process, and the Council had no powers to insist such works took place. It was therefore entitled to refuse her request to take this matter further.

The Council’s website and bias

28. The evidence shows the Council added the prior approval application and related plans to its website. It removed the original plans after Ms C’s neighbour submitted revised plans. This was not fault. There is no requirement for the Council to retain original plans on its website.
29. While I understand Ms C feels the Council has been biased towards her neighbour. I have seen no evidence to substantiate this concern.

Complaints handling and judicial review rights

30. I have found no fault it the Council’s handling of Ms C’s complaint. This is because it responded to her concerns within the timescales set out in its Complaints Policy.
31. I acknowledge Ms C believes the Council intentionally took until the deadline to respond, which made it difficult for her to consider and prepare a potential judicial review of its planning decision. However, I have seen no evidence the Council intentionally delayed the complaints process.
32. Also, a judicial review process is separate from the complaints handling. Ms C had the rights to bring a judicial review claim to court from the date of the Council’s decision. She did not have to wait until it had completed its complaints process.

Concerns about the development which has taken place

33. Ms C said her neighbour’s development is being constructed, but some parts are not as set out in the approved plans. I cannot consider this concern. This is because it was not part of her complaint to the Council.
34. If Ms C believes her neighbour’s development is in breach of the approved plans, she can report her concerns to the Council’s planning enforcement team. It can then reach a view on whether there is a breach and what action to take, if any.

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Final decision

35. I have completed my investigation with a finding of no fault by the Council. It therefore reached a planning decision it was entitled to make.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman