Summary: Mr X complains about the Council’s handling of a planning application for changes to the neighbouring property. We find fault with the Council for failing to carry out an evaluation of the impact to Mr X. The Council have put forward remedies which are in line with our guidance.

The complaint

1. Mr X complains the Council failed to assess the impact of his neighbour’s development when it granted planning permission.
2. He would like the Council to apologise and pay the cost of moving his bedroom windows due to loss of light, loss of outlook and overbearing caused by the development.

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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. 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. I spoke with Mr X and considered the information he provided.
7. I made enquiries with the Council and considered the information it provided.
8. Mr X 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

Legal and administrative background

Planning law and Guidance

9. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
10. Planning considerations include loss of privacy, overbearing, and the impact on to neighbouring properties.
11. Planning considerations do not include things like views from a property, the impact of development on property value and private rights and interests in land.
12. Council’s must publicise planning applications by a site notice or by serving notice on adjoining owners or occupiers.

Site Visits

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 property next door to Mr X made a planning application for permission to build a single-story extension to the front of their property, and two story’s at the back. Mr X had no reason to object to this. However the Council refused permission.
15. The neighbour then put in a revised application of two stories to the front of the property which the Council approved but Mr X says the case officer failed to consider the impact on his property, specifically his right to light.
16. The Council sent the revised application to Mr X on 16 August 2022 but he says he never received it.
17. Once the extension was built Mr X no longer had a view from the two windows in his bedroom, which he also uses as his office space.
18. The extension also blocked light into the room and he now has to turn the lights on while he works.
19. Mr X sent a complaint to the Council in November saying the approved development directly harms his amenity by overbearing and over shadowing. He said the planning officer failed to identify the two windows in his bedroom as principal windows.
20. The Council’s stage one response in December said the case officer negotiated changes during planning to prevent any overlooking and shadowing. The principal windows Mr X refers to is a sky light and the approved extension roof sits lower than Mr X’s property. The Guidance does not set out what should be done in these circumstances.
21. While not set out in guidance many local authorities use a 25 degree rule to reassure whether a proposal would have an overbearing or shadowing impact. Here, there is a slight breach, but considering the pitch of the roof and the absence of the rule being set out in guidance the Council would not consider it significant enough to refuse the application. The Council is content the decision is sound.
22. Mr X raised a stage two complaint in January 2023 saying the room is not only the bedroom but the office where he regularly works and now has to use lights during the day. The extension is closer to his windows and he did not receive a letter with the amended plans. The windows being a skylight is not material as they are still principal windows. He said it is widespread practice to use the 45 degree line even to a side elevation and this new extension does not even meet the 25 degree line. He requested a copy of the daylight assessment and said the application did not meet the proper scrutiny and has directly impacted his amenity in a negative way.
23. The Council sent a stage two response saying the initial proposal included a two-story rear extension with a balcony which the case officer considered would result in overlooking of Mr X’s garden. It is not the role of a planning officer to redesign schemes but to decide whether a proposal is acceptable. The neighbour sent a revised plan which reduced the impact and harm identified by the case officer. The Council sent the revised plan to Mr X on 16 August.
24. It went on to say there is no specific guidance on the 45 degree or 25 degree rule with roof lights. The amended proposal has no side facing windows so there is no overlooking, unlike the original plans. The right to light is a matter of property law rather than planning law so Mr X would have to pursue this via the courts.
25. The Council said it did not consider a lighting assessment to be necessary. Skylights are at a higher level which reduces the extent of outlook compared to a normal first floor window. The Council did not consider the proposal would result in overbearing. It recognises Mr X will not be happy and welcomes a visit to the property as suggested.
26. The Council carried out a site visit on 7 February. In its follow up email to Mr X it said it was clear the development does have an impact on Mr X’s property and the use of the bedroom as an office, and accepts this was not addressed in the officers report.
27. The Council had to assess whether the impact is significant and it said there is no specific guidance on this. It said given the unique nature of Mr X’s property, any refusal would have likely been challenged at appeal. The Council do not consider the slight breach of the 25 degree code would have caused it to refuse the application.
28. Mr X replied saying he now has to move the windows to a higher position to act more like a skylight to reduce the loss of light, and sought compensation to do this.
29. The Council response said it was clear the development had an impact on Mr X’s property and accepted it did not carry out a detailed evaluation. However the impact would not have been so significant to warrant a refusal of the application. It recognised Mr X suffered stress and as a gesture of goodwill said that it would waiver any planning application fee needed to move the windows. It said further compensation would not be proportionate to the impact.
30. Mr X raised a stage three complaint in May saying the Council’s response in December 2022 said its policies are supposed to ensure there is no material loss of light to principal windows and this is achieved by doing a degree check. However the neighbour’s development failed on the 25 degree check. He does not understand why his complaint is not upheld.
31. The Council’s response in May says it is clear the development has had an impact on the property. A detailed evaluation of impact was not carried out however the Council does not agree that due diligence was not undertaken. The impact would not have been significant enough to warrant a refusal on the application.
32. In recognition of the stress caused and as part of a sincere apology, the Council offered £500 symbolic payment as well as the waiver offered previously. In addition the planning department are actively considering revisions to the adopted guidance to account for situations like this where a more detailed assessment may be required due to positioning of existing and proposed windows.
33. Mr X has a quote for moving his windows of £2800 and would like the Council to pay this. He brought his complaint to the Ombudsman.

Analysis

34. The Council have to give notice of the planning application (see paragraph 12). The evidence shows the Council sent a letter to Mr X so he had notice of the revised plans. Unfortunately Mr X did not receive the letter but this is not the fault of the Council.
35. The Council accept the development has an impact on Mr X’s amenity and that it did not carry out a detailed evaluation of the impact. This is fault (see paragraph 10).
36. The Council subsequently attended a site visit to Mr X’s home and considered the impact. The Council’s findings were the development was acceptable in planning terms and any impact on Mr X’s amenity was not significant enough to have led to a different result or warranted a refusal of the application. We cannot question a decision which has been made in accordance with statutory guidance.
37. I recognise this has been frustrating for Mr X and this is not the outcome he would like. I cannot question a decision by the Council if it followed the correct procedure.
38. There is fault by the Council failing to properly consider the impact to Mr X’s amenity causing Mr X uncertainty and frustration. The symbolic payment put forward by the Council and the waiver of the planning fee is in line with the Ombudsman’s Guidance on Remedies.
39. I welcome the Council’s service improvements to account for situations like this arising in the future and leave this to the Council to set up.

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Agreed action

40. Within one month of the final decision the Council should:
• Write a personalised apology to Mr X for the faults identified above. We publish Guidance on Remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology recommended in my findings;
• Pay Mr X £500 for the uncertainty and frustration caused by the faults identified above.
41. Within six months of the final decision the Council should provide the Ombudsman and Mr X with an update on any revisions to its Guidance for detailed assessment.
42. The Council should provide us with evidence it has complied with the above actions.
43. The Council will also waiver any planning application fee needed by Mr X to move the windows.

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Final decision

44. I find fault with the Council for failing to carry out a detailed evaluation of the impact of his neighbour’s planning application. I agree with the Council’s remedy for the frustration and distress caused to Mr X as a result.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman