Summary: We found no fault on Mr Y’s complaint about the Council failing to tell him of a neighbour’s planning application. Nor was there fault on his complaint about it failing to consider the impact of the proposal on his amenities. There was fault in it failing to identify discrepancies in the applicant’s submissions. This did not cause an injustice as the application was properly considered in terms of impact.

The complaint

1. Mr Y complains about the Council failing to:
1. notify him of a neighbour’s planning application;
2. identify and take account of inaccurate information submitted by the applicant; and
3. properly consider the impact of the development on his property.
2. As a result, he lost the opportunity to make representations and have them considered, and his amenities have been affected.

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The Ombudsman’s role and powers

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)
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. 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.

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What I have and have not investigated

6. I have investigated this complaint:

• from the date the Council considered the planning application in November 2022 as Mr Y only become aware of it around August 2023 when he made his complaint to the Council about it; and
• to July 2024, which is when he sent his complaint to us about it.

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How I considered this complaint

7. I considered evidence provided by Mr Y, the notes I made of our telephone conversation, and the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council. I considered Mr Y’s responses.

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What I found

Legal requirements for notification

8. The Town and Country Planning (Development Management Procedure (England) Order 2015, sets out the minimum requirements for how councils publicise planning applications.
9. For major development applications, councils must publicise the application by:

• a local newspaper advertisement; and/either
• a site notice; or
• serving notice on adjoining owners or occupiers.

10. For all other applications, including minor developments, councils must publicise by either:

• a site notice; or
• serving notice on adjoining owners or occupiers.

11. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the council’s policy on how it will communicate with the public when it carries out its functions. In their SCI policy, councils may commit to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

Council’s Statement of Community Involvement (May 2017)

12. Once a formal application is received, how widely it consults depends on the nature of the application. In general it will:

• Publish all applications on its website;
• Notify properties which may be affected, such as neighbouring properties. If appropriate, it will send letters to a wider area for larger applications;
• Notify local amenity groups and appropriate statutory bodies, where relevant; and
• If the site is in a conservation area, affects a listed building, or the proposal amounts to major development, it will place a site notice or notices on or close to the site and publish details of applications in the local newspaper.

What happened

13. Mr Y has lived in his property, which is in a conservation area, for more than twenty years. Several years ago, the Council received a planning application from Mr Y’s neighbour (application 1). This wanted consent for alterations to the ground floor and basement. Mr Y made representations against the application. The Council then told him the neighbour had withdrawn the application.

Complaint a): failed to notify him of a neighbour’s planning application

14. Shortly afterwards, the neighbour sent the Council another planning application (application 2). This was for a first floor extension directly infront of a room in which Mr Y worked. He was unhappy the Council failed to notify him of it. He only became aware of it when works began. The application had been granted a couple of years ago. The same planning officer was involved for both applications.
15. He did not believe the photograph the Council sent him of the site notice erected at the time was genuine and argued he should not be expected to read a local newspaper to become aware of relevant planning applications.
16. The planning officer’s report noted letters were sent to occupants of adjoining and nearby properties, a site notice was erected, and a press notice was displayed. It also noted it received no representations against it.
17. The Council confirmed it posted six notification letters which included one to his address. It provided a copy of the letter sent to all those consulted and notified. Mr Y’s address was on the list. It could not say why he did not receive it.
18. The Council also confirmed it put up a site notice which met its statutory obligations. I have seen a photograph of the site notice attached to a lamppost on the street close to Mr Y’s property according to the location map the Council provided. It also placed a press notice in a local newspaper, a copy of which I have also seen.

My findings

19. I found no fault on this complaint. This was because I am satisfied the Council met its obligation to provide publicity for this application. While I cannot say why Mr Y failed to receive his letter, the Council met its legal obligations by erecting a site notice and publishing a notice in the local newspaper. There was nothing to show the photograph of the site notice was not genuine.

Complaint b): failed to identify and take account of inaccurate information submitted by the applicant

20. He was also unhappy with inaccuracies and misleading information in application 2 which the planning officer should have identified. For example:

• the structure shown in a photograph on Mr Y’s property in the neighbour’s Design and Access Statement (DAS) was demolished ten years ago. The structure in the photograph was a shed. He had to remove it after someone complained to the Council about it years before;
• skylights on his property were shown on the plan, but the planning officer’s report failed to mention them;
• the physical separation between the two properties was not shown;
• the drawing of the extension granted consent was different to the one used in the daylight/sunlight report (the light report) sent with application 2. The angle of the sloping roof in this report was shallower than in the drawings granted consent. The assessment of the impact the proposal would have on sunlight and daylight to his property under The Building Research Establishment (BRE) Guidance was, therefore, based on incorrect information.

21. The Council accepted there were differences between the drawing used in the light report and that in the approved drawing. It accepted this was not clearly set out in the planning officer’s report. The officer no longer worked for the Council so it could not say whether he was aware of this or not.
22. It said despite this, consent was granted on the ‘entirety of the submission’ which meant both the light report and the submitted plans were considered. Having done this, it considered the proposal acceptable.
23. The Council also noted the light report stated that given the distance to Mr Y’s property, and the height of the proposal at its highest point, the BRE Guidance was clear an assessment was not needed. This meant while there was a discrepancy between them, there would be no need for a day/sunlight assessment because of the distance and height ratio. The ratio meant there would be no, or limited, impact to the light Mr Y’s property received.
24. In addition, the officer also carried out an assessment of day/sunlight impact based on submitted plans as well, in addition to the light report.
25. It also noted that although the light report was based on a marginally lower roof height, the level of retained daylight and sunlight was well in excess of the BRE Guidance, especially for an urban area.

My findings

26. I found the following:
1. The plans showed the distance between the two properties. I am satisfied, therefore, this information was presented and known at the time the Council decided this application.
2. I found no fault on the complaint about the lack of reference to his skylights in the officer report. This was because the drawings showed they faced the sky and not towards the neighbouring property.
3. Mr Y correctly pointed out that there was a discrepancy between the drawings submitted and that used in the light report. The discrepancy was not directly referred to and addressed in the officer report. I consider this was fault.
4. I also considered the officer’s observations about Mr Y’s window based on the photograph set out in the officer report. On balance, I am satisfied Mr Y was correct to claim the photograph the officer reproduced in his report was the one contained in the DAS. I am also persuaded by his claim this was not a recent photograph as it showed a shed to the far left of the photograph which he removed at least ten years before following a neighbour complaining about it. This would also explain why his window was shown with covers on. This is common when newly installed windows are covered in protective sheeting while works are ongoing.
5. The officer report failed to clarify whether the window being obscured was permanent or not although I accept it said the ‘door and window appear to be obscure glazed’. Nor did the report explain who took the photograph or when. The inference was that it was a recent photograph.
6. I consider it likely the reason for the report not providing such clarification was because there was no site visit done. The officer relied on the photograph, which was included in the neighbour’s DAS, without knowing when it was taken. I say this because the two photographs are identical.
7. The officer report concluded, based on this photograph, that the window provided ‘limited outlook, daylight and sunlight to the room’. If the windows were covered while Mr Y’s own works were ongoing, this would be correct but only for the duration they were covered. Long-term, the outlook, daylight, and sunlight would not be as limited as the officer thought.
8. On balance, I found fault, therefore, in the way the officer considered Mr Y’s window. There was over reliance on a photograph provided by the neighbour without establishing when it was taken and whether it accurately reflected the current situation.
9. I am not satisfied this, nor the failure to identify the discrepancy between the submitted drawings and the one used in the light report, caused Mr Y a significant injustice. This was because I consider the Council went on to fully consider the impact the proposal would have on light to Mr Y’s property. In reaching this conclusion, I noted the report took the following into account:

• Planning Practice Guidance said city centre locations with mainly tall buildings in the area may be more appropriate to have lower daylight levels at some windows if new development is in keeping with the general form of surroundings. The context of the site, therefore, was a consideration. The report noted there were several first-floor extensions along this section of the road.
• The starting point must be an assessment against the BRE Guidance. The report set out the BRE Guidance for daylight and sunlight.
• It went in to some detail about calculating the impact of daylight and sunlight on Mr Y’s property.
• It referred to the light report and the one window which would be affected. It noted the distance and height and found the distance of each part of the development from the existing window was six times the height (with the highest point of the proposed development being 1 metre about the centre of the window at a distance of 6.06 metres). This meant no analysis was necessary. The light report had gone on to assess the Annual Probable Sunlight hours which found it was still more than the BRE Guidance levels.

Complaint c): failed to properly consider the impact of the development on his property

27. Mr Y argued the Council failed to properly consider the impact the extension would have on his property, which, for example, included:

• his large side window would face the brick wall of the extension. This was an important window as Mr Y needed light entering it for his work.
• he was not happy the officer’s report stated the proposed extension was a similar design to his own from the rear of his property ‘albeit a mirrored image’. He disputed this was accurate. The proposed extension had a narrow high window on the wall facing towards Mr Y’s own extension.
• the impact it would have on light to his property.

28. The officer report:

• reproduced approved drawings from Mr Y’s planning consent for his extension. This showed he needed to erect screening infront of his window to protect the neighbour from overlooking. This was not done.
• noted a door and window to the rear elevation of Mr Y’s property appeared to serve a habitable room. As already noted, it said these ‘appeared to be obscured glazing and provide limited outlook, daylight and sunlight to the room’. This statement was made based on a photograph the report copied from the DAS.
• considered the light report and stated the starting point must be an assessment against the BRE Guidance criteria. In addition, local and national policies, the context of the site, the efficient and effective use of valuable urban land, and the degree of material impact on neighbours needed considering too. It also noted government Planning Practice Guidance.
• noted the daylight report stated the only window affected was the patio window marked on the drawing. This was shown as directly facing the proposed extension. It went through the BRE Guidance criteria as applied to the extension and Mr Y’s property and concluded there would be no significant loss of daylight or sunlight to the windows of any nearby buildings.

My findings

29. I found no fault. I am satisfied the evidence showed the Council properly assessed the impact on Mr Y's property, particularly on light. It took account of Planning Practice Guidance and the context of this site. While it considered the light report, it also considered the BRE Guidance and how this applied to Mr Y’s property in terms of daylight and sunlight. As already noted, it went in to some detail about calculating the impact of daylight and sunlight on Mr Y’s property.
30. The officer report considered the distance and height from the proposed development and found the distance of each part of the development from the existing window was six times the height (with the highest point of the proposed development being 1 metre about the centre of the window at a distance of 6.06 metres). This meant no analysis was necessary. The light report had gone on to assess the Annual Probable Sunlight hours which found it was still more than the BRE Guidance levels.

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Decision

31. I found the following on Mr Y’s complaint against the Council:

• Complaint a): no fault;
• Complaint b): fault causing no injustice; and
• Complaint c): no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman