Summary: The Ombudsman found fault on Mr F’s complaints about the Council failing to: properly consider the impact of a neighbour’s planning application on his amenities; identify errors in both the application and planning report. These failures caused him no injustice. The Council also failed to respond fully to his correspondence. The agreed action remedies the injustice caused. There was no fault on his complaint about its failure to notify him of the application.

The complaint

1. Mr F complains about the way the Council considered and approved a neighbour’s planning application for an extension and how it failed to:
1. notify him of the application;
2. consider its impact on his amenities;
3. identify errors in the application and planning officer’s report; and
4. respond to his correspondence.
2. As a result, he lost the opportunity to make representations and have them considered and now worries about the impact the development will have on his amenities.

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The Ombudsman’s role and powers

3. 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)
4. 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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)

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How I considered this complaint

6. I considered all the information Mr F sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr F and the Council. I considered their responses.

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What I found

7. Mr F has lived in his maisonette ground floor and basement flat for 4 years. The flat is in a conservation area. His ground floor rear bedroom looks out towards the garden. He says the Council failed to notify him of his neighbour’s planning application to build a ground floor rear extension. He only became aware of it when told by the neighbour in August 2020.
8. I now consider each of his complaints:

Complaint a): notification

9. Mr F said he did not receive a notification letter from the Council about the proposed development and nor did he see a site notice on the road near the site. This lost him the opportunity to make representations about it. Had he been told, he would have made representations about the reduction in light to his ground floor bedroom and its dominating impact due to its height and location.
10. The Council says it sent Mr F a notification letter. As the development site is in a conservation area, it also erected a site notice on the road outside and advertised the application in a local newspaper. In response to my draft decision, the Council explained the highways team was asked to erect the site notice. They usually take a photograph of the notice in position. As this application dates over 12 months, the routine deletion of data means once an application is decided, photographs of site notices are destroyed.

Analysis

11. Under the Town and Country Planning (Development Management Procedure) (England) Order 2010, the Council had a duty to provide notification of the neighbour’s application. The type of notification it had to give depended on the type of planning application received. For this type of application, the law required it to erect a site notice or, send neighbour notification letters, as well as publishing it on its website.
12. As the site was in a conservation area, the Council had to carry out further notification. This was because the law also provides for a planning application for a development which might affect the setting of a listed building, or the character or appearance of a conservation area, it shall publish a notice in a local newspaper and display a notice on or near the land. (Regulation 5A, The Planning (Listed Buildings and Conservation Areas) (Amendment) (England) Regulations 2004)
13. In addition to the statutory requirements, the Council set out what notification it would do under its own policies. Its policy states what notification it does will depend on the type of application. Generally, it will: publish all applications on its website, including a weekly list of all valid applications for each week; notify all properties that may be affected, such as neighbouring properties and, where appropriate, it will send letters to a wider area of properties for larger applications; if the site is in a conservation area, it places a site notice, or notices, close to the site and publishes details of applications in the local newspaper. (paragraph 5.12, Revised Statement of Community Involvement (May 2017) )
14. We are not a planning appeal body. Our role is to review the decision-making process a council used.
15. I make the following findings on this complaint:
1. I have seen a mailing list for this proposal which the Council said it sent to several properties, including Mr F’s address. This referred to a site notice near the property as well, and a notice in a named local newspaper.
2. The Council provided a copy of the site notice and, in response to my draft decision, an email from a support officer to the highways department about the erection of the site notice. The email sent attachments of several site notices, copies of which I have seen, and asked the highways officer to confirm once they were all in place. I have not seen any later response from the highways officer. The Council said, as this is a dense borough, site notices are usually attached to lamp posts to the front of application sites.
3. The Council provided a copy of the notice it placed in a local newspaper.
4. On balance, I find no fault on this complaint. This is because I am satisfied the Council met both the statutory, and its own, requirements for notification. The evidence the Council provided shows it:

• produced notification letters and provided a list of properties it sent them to. I am satisfied the Council does not need to show the notification letters were delivered or received. On balance, I consider it more likely than not that they were sent;
• was also more likely than not that it erected a site notice. I say this because of the copy email the support officer sent the highways officer about erecting this and others; and
• published a notice about the application in a local newspaper.

Complaint b): amenities

16. Mr F says if the Council notified him of this application, he would have made representations about its potential impact on his amenities. He argues the Council failed to properly consider the development’s impact on his property.
17. These failures included:

• Not considering the height difference between the 2 properties as his neighbour’s house is about 20 cms higher than his;
• Not considering the Building Research establishment guidance (BRE) properly;
• Not properly considering the enhanced impact of the development on his property due to the external staircase to an upper property outside of his bedroom window. He argues the Council should have carried out further daylight and sunlight testing as a result; and
• Not following the Council’s own local plan.

18. Mr F, at a cost of £900, instructed his own light surveyor who reported his right to light would be infringed. I have not seen a copy of this report.
19. The Council told Mr F it considered the impact of the development on neighbours. For him this included its impact on his outlook and levels of sunlight/daylight to his windows which were the nearest of those potentially affected. It explained it was guided by the BRE guidance about daylight and sunlight.
20. In response to my enquiries, the Council noted the planning officer’s report had a section entitled ‘Neighbouring Amenity’ which quoted Development Management Policy DM2.1 from its local plan. This states development should not have an adverse impact on neighbouring amenities in terms of overshadowing, overlooking, privacy, direct sunlight/daylight, dominance, and the sense of enclosure or outlook.
21. The report noted the height of the extension along his boundary and decided it was unlikely to be overbearing or result in overlooking. Nor would the 45-degree rule under the BRE guidance be breached when looking at the elevation plan. It went on to note the external staircase already impacts on Mr F’s outlook and a ground floor pitched roof along the boundary would not make the situation worse. What this meant was while the roof of the new development was pitched, and marginally breached the 45-degree rule on the elevation drawing, the rule was fully breached on the plan drawing showing the development within the 45-degree angle from Mr F’s window.
22. In response to my enquiries, the Council accepted the BRE guidance tests were not applied properly. This was because for the elevation test, a 45-degree line needed taking from a height of 1.6 metres on Mr F’s window. When alerted to the ground level difference between the 2 properties, the Council adjusted its calculations to take this into account. This found the angle was just under 45 degrees. This Council pointed out even if it had done the tests accurately, taking account of the correct height measurement, it would still have found the extension acceptable in terms of daylight/sunlight.

Analysis

23. The introduction to the BRE guidance, ‘Site Layout Planning for Daylight and Sunlight’, states:

• the guide is not mandatory and is not, ‘an instrument of planning policy’;
• the aim is to help rather than constrain the designer;
• although it gives numerical guidelines, these ‘should be interpreted flexibly because natural lighting is only one of many factors in site layout design’;
• in an historic city centre, for example, a higher degree of obstruction may be unavoidable if new developments are to match the height and proportions of existing buildings; and
• numerical values are purely advisory.

24. I make the following findings on this complaint:
1. Outlook: I am satisfied the Council considered the impact on Mr F’s outlook. The planning officer’s report noted the existing stairwell in front of his window which already affects it. The report decided the ground floor extension at the side, with its pitched roof along the boundary, would not worsen the existing situation. The officer was entitled to reach the view she took about its impact on outlook. This means we cannot question the view the Council reached on this as it followed the right steps and considered relevant evidence. I found no fault on this complaint.
2. Local Plan: I am also satisfied the officer took account of the Council’s Local Plan. The report refers to Policy DM2.1, for example, and considered each element it set out. What weight to give each element of this policy was again for the officer to decide. This means we cannot question the view the Council reached on this where it followed the right steps and considered relevant evidence. I found no fault on this complaint.
3. Sunlight/daylight and plan drawing: The Council accepted the report failed to carry out the BRE assessments correctly. The assessment for the 45-degree line from the plan drawing was done correctly as this clearly showed the extension would breach it.

As the BRE guidance states, its numbers are advisory, they need flexible interpretation, and there are circumstances where obstruction might be greater than normal. In addition, I also note Mr F, or the neighbour, could have affected his general outlook from his window by erecting a fence along the boundary subject to necessary consents if the Council removed permitted development rights.

I am also satisfied the photograph at the start of the planning officer’s report shows ground floor side extensions running along the length of a boundary existed along the same road which inevitably impacts on neighbouring properties’ outlook and light, for example. There was, therefore, previous examples where it had granted consent in similar circumstances.

4. Sunlight/daylight and elevation drawing: The Council accepts making an error on the elevation plan assessment. The error meant the calculation of the 45-degree line was not done from the required height of 1.6 metres but from 1.3 metres. This is fault.

I am not satisfied this caused Mr F an injustice. This is because the recalculation shows even if it had been done properly, it would not have been a ground for refusing consent.

5. Height difference: The evidence does not show the Council considered the height difference between the 2 properties when it assessed the application. I consider this is fault. Links to photographs Mr F sent confirms there is a height difference between the 2 properties.

While fault, I am not satisfied this caused Mr F an injustice. This is because the recalculated figures show the angle is under 45 degrees both at 1.6 metres and 1.4 metres when done to take account of the claimed ground level difference between the 2 properties. This means neither the assessment of the application nor the outcome of the application would have differed.

Complaint c): identify errors

25. Mr F complained to the Council about inaccuracies both in the application and the planning officer’s report. For example, he pointed out measurements quoted in both do not take account of the neighbouring property being at a higher level than his property. He says his neighbour’s property is about 20 cms higher than his.
26. He also queried the Council’s calculations of the 45-degree rule. He argued the Council’s calculations were incorrect. He gave examples of the measurement from the centre of the window was wrong, the 45-degree line was drawn in the wrong place, and it failed to comply with the BRE’s guidance of interpreting the rule flexibly.

Analysis

27. As already noted, there was fault in the way the Council considered the development’s impact on Mr F’s property in terms of sunlight and daylight as well as the height differential between the 2 properties.
28. As also noted, I am not satisfied these errors caused Mr F an injustice for the reasons already set out.

Complaint d): response to correspondence

29. The Council accepts it failed to send a promised full response to a detailed email from Mr F due to work pressures. In response to my draft decision, it did send a copy of an email reply it sent to his earlier email. It accepted it could have given him a more thorough response.

Analysis

30. While the Council provided a copy of its November 2020 email it sent in response to the email Mr F sent the month before, I note it accepts it failed to provide a full response to him by the end of the week as promised in the email. It also accepted Mr F would have an expectation of a more thorough response than the one sent. I consider this is fault and caused Mr F some injustice (frustration and inconvenience).

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Agreed action

31. I considered our guidance about remedies.
32. The Council agreed to carry out the following actions within 4 weeks of the final decision on this complaint:
1. Send Mr F a written apology for the failure to respond to his last complaint email; and
2. Remind officers of the need to reply to complaint correspondence.

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Final decision

33. I make the following findings on Mr F’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman