Summary: Ms X complains the Council approved an extension to a neighbouring property which has caused her property significant loss of light. There was fault by the Council with the way it handled the planning application for the extension, however this did not cause injustice.

The complaint

1. Ms X complains about the way the Council handled a planning application for a two storey extension next to her home. Ms X said the Council did not properly consider the impact of the development on her property.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. As part of this investigation, I considered the information provided by Ms X. I discussed the complaint with Ms X over the telephone. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and considered the comments received in response.

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What I found

Planning permission

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

Decision making and material considerations

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. The Council considers a 45 degree test when looking at the impact of extensions on daylight. As a general rule for windows affected by a side extension, a significant reduction in daylight is likely to occur if a line drawn from the centre of the window is more than 45 degrees from the furthest point of the extension.
11. 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.
12. Government statements of planning policy are material considerations.
13. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
14. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Case officer reports & giving reasons for decisions

15. 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.
16. 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

17. In early 2023, Ms X’s neighbour applied for planning permission for a two storey extension.
18. Ms X sent objections to the Council. These concerned loss of light caused by the proposed development to her property.
19. In mid-2023, the Council approved planning permission for the two storey extension. Ms X said the Planning Case Officer did not visit her property to assess the impact of the development. As part of the application the applicant sent to the Council a plan showing the development passed the 45 degree rule test.
20. The Case Officer’s report contained several errors which included getting the orientation of the development and Ms X’s property slightly wrong. The Case Officer’s report also said there was no overshadowing to Ms X’s property caused by the development.
21. Ms X made a formal complaint to the Council after it approved planning permission for the extension. Ms X said she did not believe the Council had properly considered the impact of loss of light to her property and asked the Council to carry out a proper assessment of this.
22. In July 2023, the Council responded to Ms X’s complaint. The Council said the applicant had provided information to show the development complied with the 45 degree test. The Council said the Case Officer did reference Ms X’s objection in the report and assessed the impact of the development on her property. The Council said the Case Officer did not carry out a full in depth assessment of the impact on Ms X’s property, did not identify the most affected rooms and did not provide an assessment of why the impact was acceptable in planning terms. The Council said after considering the matter it did believe some overshadowing would occur to Ms X’s property, however this would not be enough to have refused the application.
23. Ms X asked the Council to consider her complaint at the next stage of its complaints procedure. Following this, the Council provided its final response. The Council said:
• It accepted the Case Officer could have gone into more detail about the impact the development would have on Ms X’s property and explained why they thought the development was acceptable in planning terms.
• It was putting in place arrangements to review more junior staff work.
• It agreed the development would have some impact on Ms X’s property and the report should have been clearer on this. However as the development complied with the 45 degree rule this was evidence to show the degree of overshadowing was not enough to refuse to approve the application.
• It believed that there would be overshadowing to the side windows of Ms X’s extension but as the development did not go beyond Ms X’s rear extension, her property would continue to receive light from other directions.
• It considered that the Case Officer’s decision to approve planning permission did comply with the relevant planning policies and the objections Ms X raised would not have warranted refusal of planning permission.
24. Ms X remained dissatisfied and complained to the Ombudsman.
25. In response to our enquiries, the Council said it had looked at the 45 degree test again and was satisfied that the development complied with this. The Council provided a diagram it had produced to show the development complied with the 45 degree rule.

Analysis

26. We are not a planning appeal body. Our role is to review the process by which decisions are made and if we find fault, to determine whether it caused an injustice to the individual complainant.
27. I am satisfied there was fault in the way the Case Officer considered the planning application. The Case Officer’s report contained errors which included the orientation of the development and stated that there was no overshadowing to Ms X property which was not the case. While details of the orientation of the development were only slightly incorrect, this still would have given Ms X cause to believe the Case Officer had not considered the impact of the development on her property. The Case Officer’s report also did not discuss why it considered the impact on Ms X’s property was acceptable in planning terms.
28. As I have found fault I need to consider whether this caused injustice. On balance I am satisfied that the Council would have still approved planning permission but for the faults in the Case Officer’s report. This is based on the fact the Council has satisfied itself that the development did not breach the 45 degree rule and although some overshadowing has occurred, this was not sufficient to refuse the application. The Council has explained in its complaint response and in response to our enquiries why it still would have approved planning permission.
29. While it would have been helpful for the Case Officer’s report to have gone into more detail, I do not think on balance I can say that the application would have been refused had the faults not occurred.

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Final decision

30. I have completed my investigation and found the Council was at fault for the way it considered a planning application, however this has caused Ms X no injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman