Summary: Mrs B complained the Council, in granting planning permission to a neighbouring property, failed to consider the impact the development would have on her. The Council failed to consider the impact on light to a habitable room when granting planning permission for a two-storey extension. It is likely if the Council had properly considered the impact on that window it would not have granted planning permission for the development proposed. An apology to Mrs B and for the Council to fund installation of a light tube to reinstate some of the lost light to the bedroom is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained about the way the Council processed two planning applications for a neighbouring property. Mrs B complained the Council:
• failed to consider the impact on her amenity when granting permission for a two-storey extension;
• failed to consider the impact the development would have on the party wall;
• failed to consider the development proposed would trespass on her land;
• allowed a development which will reduce the value of her property; and
• unreasonably allowed a window on the side elevation which affects her privacy.

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What I have investigated

2. I have investigated the first and final bullet point in paragraph 1. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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 an injustice, we may suggest a remedy. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
4. If we are satisfied with a Council’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 the investigation, I have:
• considered the complaint and Mrs B's comments/documentation/photographs;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered the Council’s comments on my draft decisions; and
• considered Mrs B’s comments on my draft decisions.

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What I found

Background

6. Mrs B part owns a bungalow which is next to a property which previously had a lean to at the side of the house next to the boundary with Mrs B’s property. Mrs B has a small entry way on her land, which lies between the two properties and is in her sole ownership. Mrs B’s property has windows serving a bedroom, wet room and kitchen on the side elevation facing the neighbouring property. The Council approved a planning application for a two-storey side extension for the neighbouring property. Mrs B says that extension has removed most of the light to the bedroom, wet room and kitchen. Mrs B also raised concerns with the Council that the developer had created window openings on the side elevation which were not shown on the approved plans. The Council followed that up with the developer who put in a retrospective application. The Council approved the retrospective application.

Council policy and guidance

7. P14 of the Council’s local plan says it will permit development only if it respects the amenity of existing and proposed occupiers and would be a good neighbour.
8. The Council has produced a supplementary planning document on house extension guidelines (SPD). For first floor/two storey extensions the guidance says the space around a dwelling and any gap to the boundary usually make a very important contribution to the appearance of the house and the character of the neighbourhood. The guidance says this means first floor extensions are of particular concern and the Council is anxious such gaps are protected so detached and semi detached homes do not appear terraced, cramped, or unreasonably ‘squeezed’ into the plot.
9. The SPD says the following criteria will apply to first floor extensions:
• Any terracing effect between dwellings is to be avoided. A reasonable gap to the boundary must be retained of at least one metre in most cases. A larger gap will be necessary for properties in spacious settings.
10. The SPD records the main impact on neighbours is loss of direct sunlight or general daylight, a general overbearing or dominating effect from an extension that is too large or too close to the adjacent property and unreasonable loss of privacy from overlooking windows, particularly at first floor level. In order to safeguard the amenity of occupiers of neighbouring dwellings the Council will normally apply the 45-degree guide.
11. The SPD says a first floor extension that breaches the 45-degree guide will normally be unacceptable. The SPD says the 45-degree guide will not always be appropriate and in certain cases there will be other factors that will carry as much and potentially more weight, such as orientation, and changes in levels.
12. The SPD says the 45-degree angle will be calculated from the centre point of the nearest main habitable room window on the neighbouring property and any extension that breaches that angle can reasonably be expected to affect outlook and light to neighbouring properties.
13. The SPD says side facing kitchen windows will not receive the same amount of protection of daylight standards.

Analysis

14. Mrs B says the Council should not have granted permission for her neighbour to have a two-storey side extension because that takes away light to three of her rooms. Mrs B says she raised those concerns in her letter of objection and the Council failed to take those into account. In contrast the Council says it considered the impact on Mrs B’s windows but took the view that as light to those windows was already compromised by the lean to it considered the development acceptable in planning terms.
15. I have considered the delegated report for the application for the two-storey side extension. I am concerned although the report records Mrs B’s concerns about the loss of light to habitable room windows the report only refers to Mrs B’s kitchen window. Mrs B had also referred to the impact on light to the wet room and bedroom. The wet room is not a habitable room and I therefore do not criticise the Council for failing to refer to the wet room when assessing the impact the development would have. However, Mrs B’s bedroom is a habitable room and I would have expected the report to refer to the impact the development would have on light to that room. Failure to do that is fault. I am particularly concerned about that given the planning officer visited Mrs B’s property and therefore knew of the existence of the bedroom.
16. The Council suggests considering the impact on the bedroom window was the same as considering the impact on the kitchen window and therefore if the report had referred to the bedroom window it would not have reached a different conclusion. However, there was a material difference between the bedroom and the kitchen. That is because the kitchen also gets light from Mrs B’s sun room. So, the side window in the kitchen which is affected by the development is not the only source of light to that room. I note the report, besides to referring to the already compromised light to the kitchen from the existing lean to also refers to the fact the kitchen would get enough light from the utility room, which is the sun room. So, I am satisfied the Council considered the impact on the kitchen window acceptable partly because the side window was not the only source of light to the room. That was also in accordance with the Council’s SPD guidance which I refer to in paragraph 13.
17. That was not the case for the bedroom. The bedroom only has one window and that is the window on the side elevation. So, I do not consider it follows that because the Council considered the impact on the kitchen window acceptable in planning terms it would also have reached the same conclusion for the bedroom window. So, while I do not criticise the Council for deciding the impact on the kitchen was acceptable in planning terms given there was an alternative light source, I do not consider that argument applies to the bedroom window.
18. I set out in paragraphs 7-13 what the Council’s policy and guidance say about the impact development has on neighbouring properties. I accept the Council’s SPD does not carry the same weight as planning policy. However, the report for the application for the two-storey extension refers to the SPD as a relevant consideration. That makes clear the Council will seek to keep a reasonable gap to the boundary and will normally apply the 45° guide when considering the impact a development will have on light to a neighbouring property. I have considered the fact light to Mrs B’s bedroom was already affected by the lean to. I have no doubt this would have reduced light to Mrs B’s bedroom. However, it is equally clear the two-storey extension has reduced that light even further and I do not doubt there is now little light available to that bedroom because of the development the Council has approved. Failure to consider that point is, as I have made clear, fault.
19. I consider it likely, on the balance of probability, if the Council had properly considered how the development would impact on Mrs B’s bedroom it would have refused the application in its current form and perhaps sought amendments such as requiring the front part of the side extension to be single-storey to protect the amenity available to Mrs B’s bedroom. I therefore consider failure to properly consider the impact the two-storey extension would have on Mrs B’s bedroom has caused her a significant injustice. To remedy that injustice I recommended the Council pay for the installation of a light tube to allow additional light into the room from the roof. I also recommended the Council apologise to Mrs B for the failure to properly consider the impact the development would have on her. The Council has agreed to my recommendations.
20. Mrs B also complains about the impact the window in the side elevation will have on privacy to her bedroom. That concerns a retrospective application put in by Mrs B’s neighbour. I am satisfied the report for the planning application noted the inclusion of the side facing window and recorded the officer’s view it was acceptable in planning terms as it was obscure glazed. I also note the Council imposed a condition on the permission requiring the window to be fitted with obscure glazing and non-opening below 1.7 metres above the adjacent floor level to protect the amenity of the neighbouring property. Given that, I could not say the Council failed to consider properly the impact the proposed window would have on Mrs B’s property. As I said in paragraph 3, it is not my role to comment on the merits of a decision which has been reached without fault, as is the case here.
21. In reaching that view I note Mrs B says the position of the window does not reflect the approved plans. That is not a matter I have investigated as I have only investigated how the Council processed the two planning applications. If Mrs B believes the window as constructed does not match the approved plans it is open to her to raise that issue with the Council for it to consider whether that is the case. The Council can then decide what action, if any, is appropriate should Mrs B’s allegation prove to be right.

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Agreed action

22. Within one month of my decision the Council should apologise to Mrs B for failing to consider the impact the two storey side extension would have on light to her bedroom window.
23. Within two months of my decision the Council should pay Mrs B an amount to enable her to install a light tube to her bedroom.

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Final decision

24. I have completed my investigation and found fault in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

25. I have not investigated Mrs B’s concerns about the impact planning permission has on the party wall or her concerns about the development overhanging her property. That is because land ownership is not a matter the Council can consider when processing a planning application. So, whether a development will require removal of a party wall or cause overhanging of neighbouring land are not matters the Council could take into account. That is because boundary issues are private matters between neighbouring properties. The Council’s grant of planning permission does not affect party wall rights. Nor does the grant of planning permission mean the neighbour then has authorisation to build on somebody else’s land or overhang somebody else’s land without their permission. All planning permission does is confirm the Council considers the development acceptable in planning terms. How the developer then implements that planning permission, including any negotiation required with neighbours, is a matter for the developer to sort out with the adjoining landowner. If the developer fails to do that the neighbouring landowner will have to consider legal action against the developer. The Council holds no responsibility here.
26. In reaching that view I am aware Mrs B has referred to the Council’s house extension guidelines which provide advice to applicants about encroachment onto a neighbour’s land. Those guidelines recommend applicants design the extension so all works are within the boundary of the applicant’s property. I appreciate why Mrs B may have believed the Council would enforce that when considering a planning application. However, that is not the case. First, the SPD document is guidance. Secondly, as I have made clear, landownership and encroachment or overhanging of a neighbouring property are not a material planning considerations as those issues concern private rights. So, the Council could not have taken those issues into account.
27. I have also not investigated Mrs B’s concerns about the impact the development will have on the value of her property. Property values are not material planning considerations. What that means is the Council cannot take the impact on property values into account when it considers planning applications.

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Investigator's decision on behalf of the Ombudsman