Summary: X complained about how the Council dealt with an extension on their neighbour’s land. X is concerned a flat roof could now be used as a roof terrace, which would reduce privacy in X’s garden. We found fault in the way the Council made its decision. This is because it did not use a condition controlling roof terraces on flat roofs it had imposed on an earlier approval for this site, and there was nothing written in the case officer report to explain why. However, we did not consider that the fault caused an injustice. This is because the roof is not used as a terrace and further permission would be needed to fit safety railings.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision not to take enforcement action against their neighbour, who could use a flat roof as a balcony. X said if this happened, their privacy would be affected.

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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 we consider whether it has caused significant injustice, or that could cause injustice to others in the future. When this happens, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. I read the complaint and discussed it 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 also spoke with a planning enforcement officer about what had happened.
6. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Most planning approvals relating to development will include a condition requiring compliance with approved plans. If after approval is granted, applicants want to carry out development without complying with planning conditions, they can apply to remove or vary the original condition. The Council will then decide whether to grant permission to change obligations required in the original application.
12. An application under section 73 of the Town and Country Planning Act 1990 may allow a developer to apply to carry out development without complying with conditions imposed by the original approval. In other words, this section can be used to vary approved plans.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
14. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

15. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

What happened

16. The Council refused a planning application for an extension which included a Juliet balcony – this is a narrow balcony with a safety railing that is outside a window or door. The development also included a ground floor extension with a flat roof.
17. The developer appealed to the Planning Inspectorate, who allowed the development subject to a condition that no part of the extension should be used to form a balcony, roof garden or roof terrace.
18. More recently the Council approved a variation of the originally approved plans, and these included a pitched roof on the ground floor extension, and a first-floor extension with a flat roof. The Council approved this application and imposed a condition controlling the roof of the ground floor extension to prevent a balcony or roof terrace, but did it not control the use of the first-floor extensions in the same way.
19. X complained about what had happened. In its response to their complaint the Council accepted its failure to impose a condition to control the first-floor extension roof when approving the variation application was an ‘unfortunate error’. However, the Council explained that in practical terms, the first-floor flat roof could not be used as a terrace without a railing or enclosure, and if this happened further planning permission would be required.
20. A senior planning officer said:
• they were not sure the case officer would have agreed it was likely the first-floor flat roof would be used as a balcony for the second floor bedroom;
• there have already been discussions with all those concerned to avoid recurrence of the same error.
21. X was also disappointed that the Council had allowed a larger, higher and bulkier extension than had been approved.

My findings

22. The Council accepted an error in not extending the scope of condition it imposed in the original approval to control the first-floor roof when it considered the variation application. There is no evidence in the case officer report that shows why the Council did not take a consistent approach and so I find fault. Because it is higher, a roof terrace on the first floor is likely to have a greater impact, so either the same condition remained necessary, or now if no longer necessary, we would expect some written detail, albeit briefly stated, to explain why.
23. When we find fault, we need to decide whether it caused a significant injustice for which we should recommend a remedy. The flat roof is not being used as a terrace and the Council is confident it could maintain planning control if the situation changed. We only recommend remedies for actual, not speculative, injustice. In these circumstances, while there was fault, I do not find it caused an injustice.
24. X also complained that the Council allowed their neighbour to vary original plans to allow a bigger building. Developers can use the section 73 process to vary plans, and councils are entitled to consider and approve these applications. We are not an appeal body to judgements made on planning applications, and so I cannot comment further on the merits of the Council’s decision.

Final decision

25. I found fault in the way the Council made its decision, but I did not find the fault caused an injustice we should remedy. Because of this, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman