Summary: Mr C complains the Council failed to properly consider a planning application for an extension at a neighbouring property which he says will harm his residential amenity. We have found evidence of fault by the Council but consider the agreed actions of an apology, payment and review of guidance provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to properly consider a planning application for a first floor side extension at a neighbouring property.
2. Mr C says because of the Council’s fault, he suffers from an overbearing development which has a harmful impact on the privacy and light levels to his home and has reduced its value.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and the documents on its planning portal. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
9. 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.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. An application can be amended after it has been submitted. Government guidance sets out that where an application has been amended it is up to the LPA to decide whether further publicity and consultation is necessary in the interests of fairness. It goes on to say that in deciding what further steps may be required LPAs should consider whether, without re-consultation, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended.

Key events

12. The Council received a planning application to build a first floor side extension and to make changes to the material finish of a property. The rear of Mr C’s property and part of his garden face towards the application site.
13. Mr C made representations to the Council about the application. Mr C’s initial objection included concern the proposals would cause overshadowing to his listed property which was in a conservation area and a loss of privacy, daylight and sunlight. Mr C noted the extension and balcony would be within feet of his boundary and would increase noise and disturbance. Mr C also noted the proposals were not in keeping with other properties in the area and would impact the countryside. In a second objection Mr C noted the proposals would be within 10 metres of his property and the balcony was just 1 metre away which would cause a loss of privacy, reduce daylight and be overbearing. Mr C raised concern the development would not meet the relevant rules relating to daylight and sunlight and would harm the character of the conservation area. Another resident also objected and raised concerns about overlooking to a garden and conservatory. This representation also raised concerns about the existing use of outdoor lights. The Town Council was in favour of the proposals.
14. The case officer’s report for the application set out the material planning considerations and provided a summary of the representations received which included both the objections received from Mr C and the objection from another resident.
15. The report also noted the Council had received revised plans during the course of the application to remove a proposed balcony. The case officer set out in the report that the revised plans were assessed as limited in scale and seeking to reduce any impact on residential amenity and so had decided further publicity was not necessary.
16. The case officer provided a detailed assessment of the material considerations and referred directly to Mr C’s property. It was specifically noted that the modest increase in bulk given the separation distance between the application site and rear of Mr C’s property would not be ‘overly harmful’. The case officer assessed there was no overbearing impact, overshadowing or loss of light to adjacent properties given their relationship and separation distance to the proposals. The reports outlines there was no notable difference in levels and the proposals met the 25 degree rule set out in the Council’s Design Guide Supplementary Planning Document (SPG). The report further noted there was enough distance to all other adjacent properties and amenity land.
17. The case officer considered the issues of overlooking and loss of privacy raised in the representations received. It was noted there were no rear facing windows in the proposed extension and the two rooflights would be set a sufficient distance above floor level to avoid any detrimental impacts on residential amenity. It was further noted that the proposed window to the east elevation provided a separation distance of about 4.1 metres to the boundary and there was an existing window in this elevation. The report noted there may be a level of increased views to the rear garden of another property but considered the total separation distance of 11 metres between the extension and boundary of this property was acceptable. There is no direct reference to Mr C’s garden although I note he had not raised this as a specific issue in his representation. It was also noted that a condition would be attached to the permission to ensure the remaining flat roof must not be used as a platform for recreational purposes. It was considered this would also address the representations about the potential for increased disturbance and noise.
18. The case officer concluded the development was acceptable in terms of overshadowing, overbearing impact, overlooking, loss of privacy, loss of light and would not have a significant detrimental impact on residential amenity of neighbours to warrant refusal. The Council granted planning permission subject to conditions. The decision notice for the planning permission included a condition preventing the use of the flat roof area as a balcony area.
19. Mr C complained to the Council at the end of December 2021. The Council provided a response at the first stage of its complaint procedure towards the end of January and apologised for the delay in responding. The Council noted there had been two site visits to the application site. The Council accepted there was a difference in levels between the application site and Mr C’s property which Mr C had estimated as being 1 metre. The Council reassessed the 25 degree line set out in its SPG and noted that although there was a partial failure of this test taking into account the difference in levels it was not significant and given the orientation of the affected windows would not have provided grounds to justify a refusal.
20. The Council visited Mr C’s property towards the end of January and provided an updated response to his complaint. This found the difference in site levels to be 0.5 metres and reiterated its assessment this would not have affected the outcome of the application. Mr C remained unhappy with the outcome and escalated the matter at the end of January. The Council provided a final response to Mr C in early March and apologised for the delay.
21. In Mr C’s subsequent complaint to the Ombudsman, he raised particular concern about not being reconsulted on the amended plans and the case officer not visiting his property or responding to his representations. Mr C considered the Council had failed to properly consider the impact of the proposals on his amenity as it had not taken into account the difference of levels between the two properties or the layout of his garden.

My consideration

22. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.

Consultation

23. As fairness informs the manner in which a statutory duty to consult is carried out, in the absence of a statutory duty fairness may nevertheless require consultation, depending on the particular circumstances of the case. As a general rule we would always expect a LPA to consider whether a duty to reconsult is triggered in any case which it has decided at the outset that publication or consultation on the proposal was warranted. That will involve clear evidence the LPA had considered whether it ought to reconsult on the amended application and the reasons for reaching its decision either way. If the LPA has documented that it considered the amendment and had a logical basis for its decision not to reconsult we would generally not consider the LPA acted with fault.
24. The Council has provided evidence it considered whether to reconsult on the amended plans and the case officer’s report sets out the reasons for not doing so. However, I do not consider the reasoning provided addresses the key issue of fairness. The Council’s reasons concentrate on the limited scale of the changes and their intention to mitigate any impact on residential amenity. The case officer’s report later refers to the removal of the use of the balcony as addressing amenity issues relating to noise and disturbance. This does not provide evidence of consideration to fairness to those who may have previously made representations and may have wished to do so again. This is a finely balanced decision but in the particular circumstances of this application I consider this is fault.
25. I have taken into account Mr C’s comments that the original plans included the use of privacy screens around the balcony and although he was against the use of the balcony for the reasons he set out in his objection, he would have wanted the privacy screening to remain. However, it is also clear the Council did not consider the retention of the balcony and screening would be acceptable in wider planning terms. On balance, I do not consider there was injustice to Mr C in terms of the outcome of the application itself but I do consider there is a procedural injustice as a result of Mr C not having his voice heard.

Consideration of Mr C’s amenity

26. Site visits can form an important part of the planning process as they allow officers the opportunity to visualise how a development might impact on the surrounding area. However, there is no legal requirement for a site visit to be completed. Officers and (where appropriate) members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview. It was not fault for the case officer to decide a further visit to assess the application from Mr C’s property was not necessary.
27. Councils receive a large volume of planning applications and there is also no expectation that officers will respond to individual representations during the planning process. Their role is to consider any representations received and provide an assessment of the material planning considerations. I do not consider there was any fault by the Council in not responding to Mr C’s representations directly.
28. 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. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

29. The case officer’s report refers to there being no notable difference in levels between the application site and Mr C’s property. Mr C estimated the difference as being 1 metres and the Council at its subsequent visit found this to be 0.5 metres. This meant there was a marginal failure of the 25 degree line which the Council has assessed as not being material to its decision to approve the application. On balance, I accept this would not have affected the outcome of the application.
30. The case officer’s report did not refer to the overlooking of part of Mr C’s garden area directly. The report does set out that there was an existing window in this elevation. Mr C makes the point the new window openings are significantly larger and provide a direct view onto his patio area. As the case officer’s report addresses overlooking to a different garden at a further distance it would have been preferable for it to also directly consider the impact to Mr C’s garden area given its closer relationship to the increased size of windows proposed.
31. I do not consider, but for the identified fault, there would have been a different outcome to the application. The case officer had enough relevant information to reach a view on the impact on the residential amenity of near neighbours including Mr C and it is clear the case officer considered there would be some impact but it was assessed as acceptable in planning terms.
32. However, the combination of not having the opportunity to comment on the amended plans and the case officer’s report not providing accurate information about levels or direct reference to overlooking affecting Mr C’s garden has caused him unnecessary time and trouble trying to understand how the Council had considered the impact of the development on his home.

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Agreed action

33. The Council will take the following action to provide a suitable remedy to Mr C:
1. write to Mr C to apologise for the fault identified in my statement above within one month of my final decision;
2. pay Mr C £200 to reflect the uncertainty and his time and trouble in making a complaint within one month of my final decision; and
3. review its guidance to case officers to ensure it provides evidence it has properly considered whether to reconsult on amended plans included the wider issue of fairness to those who may wish to make additional representations on the application as amended within three months of my final decision.

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Final decision

34. I have completed my investigation as I have found evidence of fault by the Council but consider the agreed actions above provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman