Summary: Mrs D complains about how the Council made planning decisions on a development next to her home. There was no fault by the Council. It properly considered all the issues she raised and the requirements of the planning policy.

The complaint

1. Mrs D complains about how the Council handled a planning application to build a new apartment block on a site next to her home. In particular, Mrs D says the Council:
• Failed to properly check whether the development breaches the 45-degree angle rule, designed to protect light, and failed to consider her representations about this;
• Failed to properly consider whether the development meets the Council’s supplementary planning guidance in terms of cycle and bin stores, disabled access, and parking provision;
• Included photographs of the site in the committee papers, which showed her and her private space without her consent;
• Failed to make clear to the committee or to consider the different ground levels of the steep site, and wrongly understood that the nearest part of her house is the garage, when it is in fact a habitable room;
• Did not properly consider the impact on ecology including rare and protected species; and
• Has not considered a conflict of interest as the relevant planning team leader is married to the director of the development company.
2. Mrs D says that as a result of the Council’s shortcomings, her daylight and sunlight has been affected and she will have to live with a neighbouring property next door that is too big and overbearing.

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What I have investigated

3. I have investigated Mrs D’s complaints about how the Council handled the planning application but I have not investigated her complaints about its use of a photograph of her house. I have set out the reasons for this below.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I considered the information provided by Mrs D. I considered the information provided by the Council including its file documents. I also considered the Council’s planning guidance. Both parties have had the opportunity to comment on a draft of this statement. Mrs D sent me some comments and I have addressed these in this final statement. The Council confirmed it had no comments on my draft.

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What I found

Planning Policy

7. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.
8. 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.
9. 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.
10. In making planning decisions the Council must have regard to the government guidance found in the National Planning Policy Framework and the specific issues set out in its local planning policies. Relevant to this application are the Consolidated London Plan 2015, Croydon’s Local Plan, and its Supplementary Planning Guidance on Suburban Design.
11. Relevant to this complaint, the Suburban Design Guide says:
• Where the surrounding dwellings are mainly two storey detached dwellings, new development should seek to accommodate an additional storey in the roof space.
• A sloping topography can allow greater footprints and allow the new development to extend beyond the neighbouring elevations by stepping the new building down a slope and making a semi submerged basement.
• Basements and lower ground floor development that steps down a slope and do not require light wells will usually be acceptable.
• A new development should ensure that there is not unreasonable loss of light for neighbours.
• Where a new development projects beyond the rear building, it should demonstrate that there would be no unreasonable impact on neighbouring amenity.
• One way of making sure the impact on light is acceptable, is to apply the 45-degree rule. This is a line drawn at 45 degrees from the middle of the window of the closest ground floor habitable room on the rear wall of the neighbouring property. The new development should not intersect that 45-degree line drawn both horizontally and vertically. This is known as the 45-degree rule.
• Given the lack of public transport links close to this site, the development should seek to accommodate all parking within the site.
12. The London Plan says
• Bin and cycle stores should be located within the envelope of the new development and behind the building line.
• 3-bed units should provide a maximum of 1.5 parking spaces per unit and smaller units should provide less than one space. This means that this development should provide a maximum of 11 parking spaces.
• Design should ensure accessibility, but the London Housing Guidance says that this should be applied flexibly and in particular notes that lifts may not be practical in small scale developments.

What happened

13. Mrs D lives in a residential area of detached houses and bungalows on a fairly narrow cul de sac. A development company bought the house next door. The rear of the development plot and Mrs D’s garden slope steeply and back onto a woodland.
14. The developer submitted a planning application to the Council to demolish the detached house and build a new four storey block of nine flats, utilising the slope so the block would not appear to be four storeys from the front, but would have a lower ground floor partly submerged. Residents objected because parking at the rear of the plot would impact on the neighbours.
15. The developer withdrew the planning application and submitted a new application relocating parking provision to the front and the apartment block further back in the plot. It also added a further storey to make effectively a five-storey apartment block.
16. Mrs D made a detailed objection to the planning application, along with many other residents. The application was referred to the Council’s planning committee to decide.
17. Those parts of Mrs D’s objection relevant to this investigation are:
• The development is excessive and will be visually intrusive, overbearing and will impact on her light.
• The applicant stated the nearest room to the development was her garage but Mrs D’s nearest room to the development is her dining room. The new development would reduce light to the dining room. Mrs D got independent advice that the developer’s plan was wrong and the development would breach the 45-degree rule contrary to the Council’s planning policy. Mrs D submitted a new drawing showing what she believed to be the correctly drawn 45-degree line.
• The parking provision is not adequate and also, located at the front is visually intrusive. The cul de sac is narrow and parking can only be on one side of the road, and the fire brigade has advised that parking on both sides would obstruct emergency vehicles. The developer’s parking stress survey is misleading and does not take account of daytime visitors to the nursing home.
• The bin and cycle stores are not internal and the bin store is in front of the building line. These do not meet the local policy requirements. The development does not meet the disabled access requirements of the London Plan as disabled residents would not be able to access the communal garden space.
• The development would impact on wildlife habitat and she and other residents submitted evidence of wildlife visiting their gardens.
18. The Council’s planning officers recommended the committee grant planning permission. Their report said:
• The site is appropriate for residential development. It makes clear that the site slopes steeply from front to back.
• The lower ground level of the new block will be set below the level of the adjacent houses and the top floor will be in the roof space. It will have the appearance of a large, detached dwelling.
• The depth of the block will be greater than the existing house but complies with the 45-degree rule.
• It is not possible to locate the bin store inside the building and so it will be outside but screened so as not to cause any undue harm to the street scene.
• The new block will be set back and deeper than the houses on the neighbouring plots (including Mrs D’s). The new block does not encroach on the 45-degree angle and so would not be unduly overbearing or cause unacceptable loss of outlook for either of the neighbouring properties.
• The windows facing Mrs D’s home are either facing the boundary fence or are high level and do not serve habitable rooms. These will not cause a loss of privacy.
• Rear balconies are recessed and screened to the side to limit overlooking sideways into Mrs D’s garden. The report concludes the impact to the neighbouring properties is acceptable.
• The site has poor public transport links and as such the Council’s policy says that the development should provide a maximum of 11 spaces on site. The development will provide only eight space. The developer has submitted a parking stress survey which suggests that the excess parking will be available on the street.
• There is no level access to the communal garden, but a lift would not be practical and upper ground floor units have step free access to private amenity space.
19. I have watched the Council’s recording of the planning meeting. Relevant to this complaint, I note:
• The member of the public representing the objectors raised that the report says the nearest room is a garage but this is incorrect. He explained the nearest room is only six metres from the new development and this will breach the 45-degree rule. The Council’s planning officer told the committee that he is satisfied they have applied the rule correctly. The officer said that taken as a whole and considering the light from other windows, the impact on light to Mrs D’s home is not unacceptable.
• The objectors also raised that the under the Council’s planning policy the development should provide 11 off road parking spaces, but provides only 27 spaces. The developer had submitted a parking stress survey that suggested there would be eight spaces available in nearby streets, but the survey does not take into account the nearby nursing home or recreation ground both of which generate extra vehicles needing to park. He pointed out that the development is in a cul de sac that can only take parking on one side. The planning officer explained that 11 spaces is the maximum required and fewer off-road spaces are acceptable because there is street parking available nearby. He said the parking stress test used the accepted industry standard methods and so was reliable.
• The bin store could not be located inside the building, but soft landscape would mitigate the impact of it being to the front of the plot.
20. The Council granted the planning permission subject to the planning conditions to agree amongst other things, the landscaping; ensure the side windows will have restricted opening and be obscurely glazed; and details of drainage. The decision notice also included and an informative note that if protected species are found then the developer should follow the standing advice of Natural England.
21. Mrs D complained to the Council and then to the Ombudsman about how the Council handled the planning matters. She also raised that a senior planning officer is married to the Director of the development company and has concerns about conflict of interest. Mrs D also says the developer’s drawing shows her house too close to the boundary and this also affects the 45-degree rule. The Council’s policy says that it should require a daylight and sunlight analysis because there is a concern about the proximity to neighbouring properties.
22. The Council’s position is:
• All of her issues were discussed by the planning committee and it properly considered this application.
• The Council was clear that the nearest room to the boundary is Mrs D’s dining room. It is correct to take the 45-degree line from the middle of the dining room door as this is the main source of light to the room, rather than the windows either side of the door as these are secondary windows. This was an adequate basis to consider the impact of the development on light to Mrs D’s home.
• It has considered the drawing submitted by Mrs D illustrating her view on the 45-degree rule. By this drawing, the encroachment is minimal and the Council would not refuse planning permission on that basis.
• The photograph is similar to others available publicly.
• It acknowledges that the senior officer is married to the director of the development company. However, he reported this in line with its policy and he did not have any dealings with the application, and did not work with in the team that decided the application.
• The Council has visited the site to warn the contractors on site that the measurements and placing of the foundations has to be accurate as the site is sensitive.
• The Chair did not interrupt the speakers but did ask questions.

Was there fault by the Council causing injustice to Mrs D?

The 45-degree angle rule

23. The Council’s policy says the measurement should be taken from the centre of the window of the nearest habitable room. In this case, Mrs D’s nearest habitable room is her dining room which has patio door with two windows on either side. The Council took the measurement from the middle of the patio door because it is the main window and the main means of getting light to the room. It decided this when visiting the site. By the Council’s measurements the new development does not breach the 45-degree rule. Mrs D took the measurement from the nearest window, which is that alongside the door. By this measurement, the development slightly eclipses the 45-degree line.
24. The Council’s interpretation of the rule is reasonable because the aim is to assess the impact on light to Mrs D’s property. But in any case, the Council properly considered Mrs D’s representation about this and the advice she had received. It decided that even if her drawing is accurate the encroachment is minimal and would not alter the impact on Mrs D’s light or the Council’s assessment of the application.
25. There is no fault by the Council. It properly considered how to measure the 45-degree angle and took a reasonable approach when it assessed the impact of the development on Mrs D’s light. It also considered her representations about this.

The Local planning policy

26. The development does not meet all expectations of the Council’s planning policy. However, councils can depart from policy and there is no fault in doing so if it has given proper consideration to this. It is clear from the report and the meeting that the Council understood the policy standards and how the development would depart from these. It then considered whether the departure would make the development unacceptable. There was no fault by the Council here.

Wrongly stated her nearest room is a garage and failed to consider the different levels of the steep site and its relationship to her home

27. The developer in the application documents said that the house to be demolished and the neighbouring house both had a garage on the boundary. However, the Council correctly understood that Mrs D’s nearest room was a habitable dining room and based its assessment of the impact of the development on this and made this clear to the committee. The objector speaking on behalf of residents also made clear that the nearest room was not a garage. There was no fault by the Council. It correctly understood the layout and this was made clear to the committee.

Impact on ecology including rare and protected species

28. I can see that Mrs D would rather a detailed survey of local wildlife and habitat. However, the Council has acknowledged that wildlife visit the area and have included an advisory note on the decision notice. The Council has to be proportionate in what restrictions it places on the developer, and it needs to take into account that this development is replacing an existing building. The considerations for wildlife may have been different if it were a previously undeveloped site. It is not fault for the Council to take this approach.

Conflict of interest

29. The Council has explained that a senior planning officer is related to the development company but was not working in a capacity that would enable him to influence the outcome of the application. I have not seen proof that the officer formally declared his interest to the Council. However, I have taken into account that the decision was made by committee, based on detailed examination of planning considerations and the scope to influence the decision is limited. There is little merit in me investigating this further.

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Final decision

30. I have completed my investigation. There was no fault by the Council.

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Parts of the complaint that I did not investigate

31. I have not investigated Mrs D’s complaint about the Council’s use of its photograph showing her and her home. This is an alleged breach of data protection, and as such is best dealt with by the Information Commissioner. There is no reason for Mrs D not to complaint to the Information Commissioner and so no basis for me to investigate her complaint instead.

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Investigator's decision on behalf of the Ombudsman