Summary: Mr X said the Council’s failure to correctly apply its planning policy meant nearby development reduced light to his home. The Council accepted the development breached planning policy and acted to reduce its impact on Mr X’s home. We found fault in how the Council reached its decision to grant planning permission for the development. But the steps it took to put matters right, including its offer to pay £7,650, suitably addressed Mr X’s injustice.

The complaint

1. Mr X said the Council ignored his representations about the impact of proposed development on his home and refused his request for a site visit. Then, after granting planning permission, the Council visited the site, and agreed the development would cause an unacceptable loss of light to his home.
2. Mr X said what happened caused much stress and had a tremendous impact on him and his family. Mr X wanted the Council to fully compensate him for the loss of value to his home and the stress caused by its planning decision.

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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. 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

5. I:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

6. Councils must publicise planning applications to give people an opportunity to comment on development proposals. And all decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise. Planning policies may pull in different directions, for example, promoting new housing and protecting existing residential amenities. It is for the decision maker to determine what weight is placed on relevant policies (and other material planning considerations).
7. Material considerations concern the use and development of land in the public interest but not private considerations such as the developer’s behaviour or changes to property prices. Material considerations include issues such as overlooking, traffic generation and noise.
8. Council officers do not have to carry out site visits before deciding a planning application. They often have local knowledge of an area and can identify the impact of proposed development using ariel photographs and other Internet images.
9. Developers may change their planning permissions by applying for either ‘minor material’ or ‘nonmaterial’ alterations to the approved development. Councils must publicise applications for minor material changes before deciding them but do not have to publicise nonmaterial changes. There is no statutory definition of what is or is not a nonmaterial amendment. The question is one of fact and degree and a matter for the council to decide having considered the development approved by the original planning permission.

What happened

10. The Council received planning applications to develop a site near Mr X’s home. This complaint concerned the planning application (‘the Application’) received, and publicised, after substantive demolition work took place on the site. When deciding the Application, the Council’s planning policies included The 45° Code (‘the Code’). The Code concerned development that might affect the outlook from or daylight to existing nearby buildings. The Code said, to protect outlook and daylight, development should not cross an imaginary line drawn at a 45° angle from specified windows in nearby buildings.
11. Mr X objected to the Application saying the proposed development would reduce light to his home and breached the 45-degree rule. Mr X asked the Council’s planning officer to visit the site before it decided the Application. In considering earlier development proposals, the Council’s planning officers had made visits to the site and decided not to make a further visit. The Council assessed the Application against relevant planning policies and other material planning considerations. It found no breach of the Code or other planning reason to justify refusal and so granted the proposals planning permission (‘the Development’).
12. The Development started on the site and Mr X continued to contact the Council about its impact on his home. A Council planning officer then visited the site and confirmed there was a breach of the Code. The Council accepted it would have identified the breach if it had visited the site before deciding the Application. The Council apologised to Mr X and opened discussions with the developer seeking changes to the Development.
13. In the months that followed, the developer made both ‘minor material’ and ‘nonmaterial’ applications to change the Development. The Council granted planning permission for the changes, which addressed, in part, the breach of the Code.
14. The Council then decided to find out if the remaining breach of the Code affected the value of Mr X’s home. In discussions with Mr X, the Council agreed to value Mr X’s home. One valuation would be with the Development, as changed and built, but not complying with the Code, and a second valuation would assume built development not breaching the Code. And, if the two valuations showed the breach reduced the value, the Council would pay Mr X the difference between the two valuations. The Council then commissioned two companies to carry out the valuations. Mr X agreed to two separate visits to his home by registered chartered surveyors from the two companies. In their resulting reports, one company found the breach of the Code reduced the value of Mr X’s home by £7,000 and the other by £7,500. The Council, after sending Mr X a copy of the two valuation reports, offered to pay him £7,250 (the mid-point of the two valuations). The Council also offered Mr X £400 for his time and trouble.
15. Mr X was “insulted” by the offer and said compensation of £30,000 to £40,000, was appropriate so he could extend his home and regain lost daylight and privacy. The Council offered to get a third valuation from another company. Mr X declined the offer as any further survey would also only consider the impact of the breach of the Code on the value of his home. The Council reviewed the matter. It again sincerely apologised to Mr X but said it had acted to minimise the impact that breach of the Code had on his home and would not increase its offer of £7,650. The Council signposted Mr X to the Ombudsman should he decide not to accept the offer.

Consideration

16. There was no dispute the Development did not comply with the Code, which was part of the Council’s adopted planning policies. However, the Council, in assessing the Development, did not identify a breach of the Code and granted the Application planning permission. After granting planning permission, the Council accepted it had not correctly assessed the Development against the Code. I agreed, and the failure to correctly apply the Code was fault.
17. The information I saw showed the Development’s non-compliance with the Code was substantive. This would likely result in a significant adverse impact on Mr X’s residential amenities. The Council would have refused planning permission for the Application and Development if it had correctly applied the Code. So, Mr X now lived near development, which ought not have received planning permission, and that reduced light to his home. The Council’s fault therefore caused Mr X injustice. The Council also agreed a pre decision site visit would have prevented its error in applying the Code. So, Mr X had the added frustration of knowing he had pointed to the breach of the Code and repeatedly asked for such a visit before the Council decided the Application.
18. Once the Council recognised its error, it responded positively and engaged with the developer to reduce the impact of the Development on Mr X’s home. While I recognised this would likely be of little comfort to Mr X, changes did bring parts of the Development in line with the Code. However, the Council could not negotiate changes to secure full compliance with the Code. Part of the Development continued to have a significant adverse effect on light to a room in Mr X’s home. The Council then sought to address the remaining injustice to Mr X by making a financial payment. Essentially, this complaint came to the Ombudsman because Mr X and the Council could not agree on what that payment should be.
19. The main outstanding injustice to Mr X concerned the loss of light to one room because the Development, as changed, did not fully comply with the Code. Our approach to addressing such a permanent loss of residential amenity, is to ask councils to take remedial and mitigating actions. And, where such steps cannot or do not address the identified injustice, we may suggest a symbolic financial payment to recognise the loss of amenity. Depending on the circumstances of a case, such a payment will rarely exceed £5,000. In those rare cases where we might suggest a sum greater than £5,000, we will have found a significant loss of amenity due to council fault. A significant loss of amenity may be reflected in lost property value. So, we may recommend a council compares the value of a complainant’s property based on development built with and without fault. We would then consider those valuations in deciding what financial payment would be appropriate.
20. Here, the Council’s response to what happened reflected our approach to addressing the loss of residential amenity caused by fault. It had some success securing changes to the Development that mitigated the breach of the Code on Mr X’s home. And, when it could not secure full compliance with the Code, it sought valuations to address the remaining adverse impact for a room in Mr X’s home. While we may recommend the district valuer carry out, where appropriate, such valuations, the Council used two professional firms regulated by the Royal Institution of Chartered Surveyors. And the resulting valuation reports showed an assessment of the impact of the breach of the Code on the value of Mr X’s home. While Mr X may find that basis unsatisfactory, we may ask councils to remedy injustice caused by fault. The fault here concerned the incorrect application of the Code. And the injustice the Council sought to address was the impact breach of the Code had on Mr X’s home. I saw no grounds to question the Council’s approach to putting right Mr X’s injustice. And, having considered the valuation reports and all other information before me, I found no good reason or grounds to question the Council’s offer to pay £7,650 to address Mr X’s remaining injustice.

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Agreed action

21. I found fault by the Council in how it assessed the Application and resulting injustice to Mr X (see paragraphs 17 and 18). To put matters rights, the Council took steps that secured changes to the Development; apologised to Mr X; and offered him financial redress totalling £7,650. I found the actions both taken and proposed by the Council provided a proportionate, appropriate and reasonable remedy for Mr X’s injustice.
22. The Council agreed, within 30 working days of this statement, to pay Mr X £7,650. The payment to be in recognition of both Mr X’s avoidable distress and frustration, and loss of residential amenity due to the Development, as modified, not fully complying with the Code.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. I completed my investigation on the Council agreeing to comply with the actions set out at paragraph 23. I found the Council’s offer of £7,650 suitably addressed the remaining injustice to Mr X arising from the fault I identified in its planning decision making.

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Investigator's decision on behalf of the Ombudsman