Summary: Mrs X complained about the Council's decision to approve a planning application for a two-story extension on a nearby property. There was fault in how the Council notified Mrs X of the planning application. This caused Mrs X avoidable frustration. The Council will apologise and remind its staff they must publicise planning applications in accordance with its Statement of Community Involvement.

The complaint

1. Mrs X complained about the Council's decision to approve a planning application for a large two-storey extension to a nearby property. She said the extension would overlook her property, cause light pollution and devalue her home.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I read the complaint and spoke to Mrs X. I read the Council’s response to Mrs X’s complaint, considered documents from its planning files and spoke to a tree officer.
5. Mrs 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

Relevant law and guidance

6. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
7. Planning considerations include things like loss of privacy and overshadowing. They do not include the impact of development on private rights and property value.
8. Some councils issue guidance on how they would normally apply planning policy. The Council's guidance on overlooking says it will likely consider development acceptable if:
• there is 7 metres between a first floor (or above) habitable room window of an extension and a boundary which adjoins a neighbour’s garden; and
• there is 17 metres between the first floor habitable room windows of the extension and the habitable room windows of a neighbour’s property.
9. A habitable room is a room such as a bedroom, kitchen, dining room or conservatory. It does not include bathrooms or hallways.
10. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations before they decide applications.
11. Regulations set out the minimum requirements for how councils publicise planning applications. For applications which would affect the setting of a listed building, the council is required to publish the details in a newspaper and on its website and to put up a site notice.
12. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
13. The Council's SCI says that for commercial planning applications, it will, where relevant, send neighbour notification letters to nearby residential properties to supplement site notices. It will “normally notify the owners/occupiers of residential properties adjoining the application site. Other residential properties will generally only be consulted where they will be materially affected”.
14. Following consultations, a planning case officer will produce a report recommending the council accept or reject an application. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.

Tree Preservation Orders

15. A council may own trees, for example on the highway or in public open spaces.  A Tree Preservation Order (TPO) makes it an offence to cut down, top, lop, uproot or willfully damage a tree without the Local Planning Authority’s (LPA’s) permission. The purpose of a TPO is to preserve public amenity, not the rights or interests of private individuals.

What happened

16. Mrs X’s garden backs onto a commercial property. Mature trees and hedges surround the commercial property, and some screened Mrs X’s home and those of her neighbours from the property. There is a single TPO covering the trees.
17. The owner of the commercial property put in a planning application to extend the building. It involved removal of some large trees within the group between the property and Mrs X’s neighbours. The application included plans to plant trees to replace those that would be felled as well as a tree impact report and method statement.
18. The Council consulted with its tree department. The tree officer initially said they could not support the proposals because the trees provided significant amenity value and screening for Mrs X’s street. They also raised concerns about the impact of proposal on the remaining trees and how the owner would manage them in future. They considered the owner’s proposed replanting plan was acceptable. Council records show that following the consultation, the developer submitted an updated method statement and tree impact report and clarified some points. The tree officer subsequently decided that the plans to protect the trees in future were “broadly acceptable”.
19. The Council approved the application. The case officer’s report recommending approval of the application said:
• there was a distance of 6 metres to the boundary of the nearest properties and at least 23 metres to their homes. The homes were also on a different level to the extension, which would minimise the impact of the works. The officer did not consider therefore the extension would cause a material loss of amenity;
• it had not received any objections from its tree department following review of the tree method statement and impact assessment;
• the case officer accepted, as they had before, that the loss of the trees was a reasonable compromise for the benefit of the development;
• the case officer was satisfied the method statement detailed how the developer would minimise damage to the remaining trees during construction. They nonetheless recommended conditions to ensure the developer would protect the remaining trees before and during construction work; and
• the case officer noted there were reservations about the impact the development would have on the remaining trees in the long term but felt the actions the developer had proposed to protect them were suitable.
20. In 2021, Mrs X became aware of the development after she woke to see the trees felled. She complained to the Council. She said:
• the Council had not told her or other residents in her street of the planning application and they had therefore lost their opportunity to object to the plans; and
• she felt the Council had wrongly ‘over-ruled’ its tree specialist.
21. The Council responded in August to say it was satisfied it had advertised the planning application in accordance with the regulations and its SCI by placing a notice near the commercial property, writing to residents nearest the extension (this did not include Mrs X), and posting an advert in a local newspaper. The Council also published the application on its website.
22. Mrs X then complained to the Ombudsman. She said:
• the Council had not sent notification letters to the residents of her street;
• the location of the site notice was poor as it was at the road entrance to the home, which had little foot traffic;
• the notice the Council placed in the newspaper was inadequate as the paper had low readership and people more often use social media now;
• the tree department’s consultation response argued against the felling the trees; and
• the works combined with the loss of the screening provided by the trees would meant the extension would overlook her home, cause light pollution and devalue it.
23. As part of my investigation, the Council sent me evidence which confirmed it sent notification letters to some of the Mrs X’s neighbours whose properties adjoined the development site.

My findings

Notification of the planning application

24. The Council has to comply with legal and policy requirements in publicising planning applications. The Council placed a notice near the commercial property, in a local newspaper and online. This was in line with the regulatory requirements.
25. However, the Council's SCI says that it will, where relevant, send neighbour notification letters to nearby residents adjoining the application site. The Council sent letters to those residents closest to the site. This shows it accepted it was necessary to send notification letters those properties adjoining the development. However, Mrs X’s property adjoins the site, and the Council did not send her a letter; this was fault. It caused Mrs X frustration as she missed a further opportunity to send a response to the consultation.

Approval of the application

26. The Ombudsman cannot question a council's decision if it is made without fault. We expect case officer reports to show the Council took proper account of the relevant information. The report shows the case officer properly considered the effect of the extension on the properties on Mrs X’s street in terms of overlooking and loss of light. It decided that given the distance between the houses and the extension and the variation in height, the development would not cause an undue loss of amenity. The Council was not at fault.
27. Mrs X complained the Council ‘overruled’ its tree department. Records show the tree officer raised some concerns about the proposals but after further information they agreed the plans were acceptable. The case officer’s report reflects this. It also appropriately addressed the concerns the tree officer raised about the loss of amenity caused by cutting down the trees and the impact of the development on the remaining trees and their future management. The case officer ultimately decided the benefits of the development outweighed the loss of the trees and recommended conditions in place to ensure the remaining trees would be protected. The Council considered the relevant information in coming to its decision so was not at fault.

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Agreed actions

28. Within one month of the date of my final decision, the Council will apologise to Mrs X for the frustration caused by its failure to publicise the planning application in accordance with its Statement of Community Involvement.
29. Within three months of the date of my final decision, the Council will remind its officers that they must publicise planning applications in accordance with its Statement of Community Involvement.

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Final decision

30. I have completed my investigation. I have found evidence of fault causing injustice. I have made recommendations to remedy that injustice and prevent the fault occurring again in future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman