Summary: X complained about the Council’s decision to approve a planning application for development on land at the side of X’s home. We found fault that caused an injustice to X and the same fault may happen again. We have made recommendations to the Council, which it has agreed.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to approve development on land next to X’s home.
3. X said:
• the Council’s approval does not follow design guidance; and
• the case officer’s report says the development complies with guidance, but it does not; and
• the development has a major impact on the quality of their life.

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The Ombudsman’s role and powers

4. 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)
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)
6. 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.
7. It is our decision whether to start, and when to end an investigation or part of an investigation into a complaint. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

How I considered this complaint

8. I read the complaint and the documents provided by X. I have also discussed the case with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I read the Council’s design guidance.
9. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. Details of how a council considered an application are usually found in planning case officer reports. 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.
15. 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.
16. Councils sometimes use form style questionnaires that invite ‘yes/no’ or ‘tick-box’ responses. While these can provide evidence to show the main planning considerations have been taken into account, they are unlikely to be acceptable if the proposal requires a more subtle or detailed response. This can often be necessary if, for example:
• the layout or relationship between the buildings is not typical;
• the proposal does not fall exactly within the limits set by policy and guidance; or
• there are other reasons why the policy or guidance should not be applied.
17. In these circumstances, we would expect the Council to provide clear, written reasons to justify its recommendations and judgements so we can understand how its decision was made.
18. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
19. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
20. Although SPD guidance can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
21. For one or two storey houses, this Council has SPD design guidance, which recommends:
• 1 metre between the side of a building and its boundary;
• 22 metres between facing rear elevations; and
• 12 metres between side and rear elevations.
22. Planning officers may consider the loss of light or overbearing impact a new development is likely to have on existing buildings. They often use a rule of thumb, known as the ‘45-degree rule’.
23. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. They sometimes then apply a rising line of 25 degrees, and any development above and beyond the two lines is caught by the ‘rule’. If a large area of the new development is in breach of the ‘rule’, it is likely to indicate an unacceptable, overbearing impact.
24. Some councils include the 45-degree test, or a version of it, in their published SPD design guidance to show how they apply policy to protect against an overbearing impact and loss of light.
25. This Council’s design guidance includes an explanation of how it applies the 45‑degree rule. The guidance includes a diagram showing two, two storey buildings side by side. A 45-degree line is drawn from the nearest corner of the neighbouring property, towards the development on the other side of the boundary. The guidance also includes a 25-degree rising line, drawn from the midpoint of the affected habitable room window. The guidance does not explain how or whether it applies to side windows in neighbouring properties.
26. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
27. Guidance is usually written to explain the authority’s usual approach in typical situations, and it may not be so easily applied where house designs or orientations are atypical. Each case has to be considered on its own merits.

What happened

28. X’s neighbour applied for planning permission to build an extension on the side of their house facing X’s home. X’s house has side windows facing towards the site. The planning application was publicised and X objected to the proposed plans.
29. The proposal was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• a summary of X’s comments;
• an appraisal of the main planning considerations, including design and character of the area, and the impact on residential amenity; and
• the officer’s recommendation to approve the application, subject to planning conditions.
30. The case officer report includes a form style appraisal section with questions relating to compliance with the SPD design guide. It allows questions to be answered either ‘yes’ or ‘no’ (i.e the proposal complies/does not comply with the guidance). Its questions cover residential amenity and separation distances, and in relation to both, the case officer answers ‘yes’.
31. Further on in the case officer report, there are paragraphs providing a more detailed analysis of how the development impacts its environment. The case officer notes the increased height of the extension and that it will extend almost to the boundary. The case officer recognises X’s objections but concludes that refusal would not be justified. The case officer said the development would not be in breach of the 45-degree angle, and that any overshadowing is confined to the side elevation facing X’s home and would not be overly dominant or oppressive. The case officer made no mention of the 25-degree element of the test.
32. The application was approved subject to conditions.
33. X complained about the Council’s decision. X’s main concerns relate to how the Council applied and considered its design guidance. X complains:
• the guidance says the Council expects at least 1 metre between a side elevation and the site boundary, whereas this extension is built on the shared boundary;
• new dormer windows in the side of the development will impact X’s privacy;
• the Council failed to consider the 25-degree test in its design guidance and the development is in breach of the 25-degree line.

Responses to my draft decision

34. In response to an earlier draft of this decision, X said:
• the 45-degree and 25-degree tests are two separate tests. The first aims are evaluation impact on existing windows at the side of the development. The second evaluates the impact on windows opposite the development; and
• there were multiple instances of non-compliance with the design guidance, and this cast substantial doubt on whether the Council took proper account of the guidance before making its decision.
35. A senior officer from the Council said:
• the question in the case officer report asking whether design guide separation distances are complied with, only applies to separation distances between habitable rooms, and not to other separation distances set out in the guidance;
• the design guidance is now over 10 years old and though there are a number of areas it would want to improve or clarify, this could not happen quickly;
• they accepted the report could be better, but it was important to remember that not every relevant issue had to be recorded in the case officer’s report. Just because a policy was mentioned did not mean it had not been considered; and
• the Council accepts our recommendations.

My findings

36. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
37. The Council’s SPD guidance includes separation distances that will normally be required to maintain privacy and avoid a sense of enclosure. The guidance includes a 1 metre to boundary limit, which is not met here, yet the form ‘yes/no’ section of the case officer report says the proposal is compliant with separation distances in the guidance. It is not compliant with all separation distances in the guidance, and this misstatement is fault.
38. The senior officer I spoke to said that the question and answer in the report about separation distances only applies to one measurement in the guidance, the space between habitable rooms. This is not explained in the case officer report or the guidance, and the Council cannot assume that any reader would know or understand this.
39. Where we find fault, we need to decide whether it caused a significant injustice. In planning application cases, we first need to decide whether it is likely that but for the fault the outcome would be different. If we decide it would have been different, we then determine to what extent the complainant was caused an injustice.
40. I do not consider it likely the outcome would have been different. The fault here relates to the use of a form response requiring a ‘yes/no’ answer, whereas the case officer’s analysis shows a more nuanced approach. The case officer recognises the close relationship between the extension and X’s home, but makes a judgement that, on balance, the development is acceptable. I can see the case officer has considered X’s objections, the proposal, the plans and the guidance, and made a judgement. Even if the officer had written ‘no’ or ‘see below’ or left the questions about separation distances blank, their judgement on the relationship between the extension and X’s home is likely to have been the same.
41. X also complains that the 25-degree rising line test was not mentioned in the case officer’s report, and this shows it was not considered.
42. Case officer reports do not have to include every possible planning consideration that might be relevant, but they must show that the main issues were considered. The main issue here is impact on neighbouring amenities, on privacy, loss of light and overbearing impact, and there is enough in the report here to show that these issues were considered.
43. Even if I had decided otherwise and found there should have been reference to the 25-degree part of the test, I would not be able to say how the Council should have applied its judgement. Planning guidance does not create rules that must be applied; it is up to the Council to decide how or whether to apply guidance.
44. Though there is no explicit mention of the 25-degree I can see the case officer has considered the design guidance and concludes the proposal would not be overly dominant. We are not an appeal body, and I cannot say this judgement was wrong.
45. I should also note that the SPD guidance on 45-degree and 25-degree issues does not explain how relationships between developments at the sides of the site are assessed. While the Council’s guidance could be clearer on this point, I cannot say the officer’s conclusion, that there would not be an overly dominant or oppressive impact, is wrong.
46. I do understand why X is confused and frustrated by what has happened. They are clearly upset by the impact the proposal will have, and they do not understand why all the requirements of the SPD guidance were not followed. However, the fault I have found is about how the Council recorded its consideration and analysis, and not that it mistakenly approved an application it should have refused.
47. I decided not to investigate further the comments made by X on my draft of this decision. This is because:
• In my view, the 45-degree and 25-degree are both tools which officers use to consider the impact development has on amenities, such as loss of light and overbearing impact. It is not clear from the guidance itself that each test, as X suggests, only relates to certain relationships. However, the Council has agreed to my recommendation to consider clarifying its design guidance and will have the opportunity to improve it.
• The guidance relates to typical layouts and relationships, and X’s house is not typical. It would have been better if there had been more detail in the officer’s report, but in my view there was enough detail to show the main planning issues were considered before a decision was made.
• I did not find multiple instances of fault. To do so, I would need to agree that X’s interpretation of the guidance is the most likely way it could be reasonably applied. I do not agree this is the case, though I found the guidance could be clearer. In any event, because I found there was enough evidence to show the outcome would not have been different, further investigation is unlikely to result in a meaningful outcome or additional remedy for X.
48. I made recommendations to address the injustice caused to X and to avoid the same fault happening again, which the Council has agreed.

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Agreed action

49. The Council has agreed to the following recommendations to remedy the injustice caused by the fault I have found.
50. The Council agreed to:
1. apologise to X for the confusion and frustration caused by the fault I have found. This will happen with one month from the date of our final decision;
2. review its working practice and procedures relating to recording analysis and reasons in its case officer reports. It should focus on the form questionnaire part of its reports to ensure answers accurately reflect case officer analysis and reasoning. This will happen within three months of our final decision;
3. consider whether any further clarification is necessary for its SPD design guidance as it relates to 45-degree and 25-degree measurements in relation to properties at the side boundary of the development site. This will happen within three months of our final decision.
51. The Council will provide us with evidence it has complied with the above actions.

Final decision

52. I found fault that caused injustice to X and might happen again. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman