Summary: We found no fault on Mr K’s complaint of the Council approving a neighbour’s planning application for an extension similar to the one it refused him consent for. The applications were not the same and Mr K changed his property by the time his neighbour applied.

The complaint

1. Mr K complains the Council acted unfairly when it approved a neighbour’s planning application for an extension as it failed to take account of, and apply, the same considerations it did when refusing his application for a similar scheme: as a result, his amenities have been affected as he lost a view, light, and is left feeling enclosed.

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The Ombudsman’s role and powers

2. 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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

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

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What I found

7. Mr K lives in a terraced house. He sent the Council a planning application for a single storey rear extension. His neighbour made representations about the impact it would have on her ground floor rear window near the boundary. She also expressed concern about the sense of enclosure it would create. The Council refused it because of the impact on his neighbour’s amenities.
8. Shortly afterwards, he amended the proposed plans to take account of her concerns and reapplied. The amendments meant the single storey rear extension did not extend the full width of his house but left a gap between it and the boundary. The Council approved this application and Mr K built his extension.
9. Several years later, the neighbour sent the Council a planning application for a single storey rear extension. This went the full width up to the boundary with Mr K. He made representations using similar arguments she made against his first application. He now had a narrow window to a room at the side of his extension to allow light into it. He argued her extension would affect light to this room and create a sense of enclosure. The Council approved the application.
10. Mr K was unhappy with the Council’s decision because of the impact the extension would have on his amenities. He complained the Council treated his initial application, and his neighbour’s application, inconsistently. This was because it allowed the neighbour to build up to the boundary which not only created a sense of enclosure, but reduced light to his room. He also considered the planning officer should have visited his property to assess the possible impact on it.
11. The Council explained:

• The three decisions were made over a period of several years by three different planning officers. While this explained the difference in style and approach in their reports, all were assessed on design and impact on neighbour amenity.
• Planning considerations include daylight and sunlight impact. This was different from ‘right to light’ which was not considered under the planning process as it was a private right. As a private right, this was ultimately for the courts to decide. It assessed the impact on daylight and sunlight to his property but decided there was no significant harm to him.
• Many extensions breach the horizontal 45-degree rule from neighbouring habitable windows. This rule is used to decide whether a development will block sunlight and obscure how much can enter neighbouring windows. Looking out of a window, a 45-degree angle on either side is considered both vertically and horizontally. Any development outside of this angle is acceptable.
• Its own Supplementary Planning Document 2019 (SPD) allows this type of breach up to certain depths but, deeper extensions are also allowed flexibility even though not set out in the Local plan. This allows a reasonable right to extend and takes account where neighbours already have extensions.
• The SPD states it is important single storey rear extensions do not dominate an applicant’s property or project too far into the garden. This is to avoid it being overbearing and causing a significant loss of outlook, light, or an increased sense of enclosure. For a terraced house, the maximum depth is about 3.5m. This is a ‘general rule of thumb for household extensions’. The 45-degree rule is used to assess applications.
• There was no legal requirement for the planning officer to do a site visit. The officer had enough information to make an assessment. The officer visited the site during the assessment and had the plans reduce the extension’s size. When it received Mr K’s applications, it was the start of the most restrictive COVID-19 travel restrictions where only essential travel was allowed. The officer had enough information from aerial images and neighbours’ comments to make a recommendation. When the neighbour applied, an officer visited because travel restrictions were no longer in place.
• The neighbour’s plans were reduced in length at the rear to save costs and avoid moving a manhole access. The planning officer’s request for smaller plans was based on planning issues raised in the report. It also noted the officer found the neighbour provided inconsistent plans with two options shown. The officer suggested the smaller proposal would have less impact. The Council sent no evidence in support of these claims.
• It also refused Mr K’s first application because of its impact on the neighbour’s rear door access onto a patio area which faced his property. Now, Mr K has no rear door facing the neighbour’s property as the doors on his extension face down his garden on the other side from his neighbour.
• His neighbour’s proposal had less impact as it was of a similar depth but not as high, with a shallower roof to eaves height than his.

12. I have seen the documents for all three planning applications on the Council’s website:

• Refused application (Mr K): This increased the width of the existing extended building to the full width of the plot. When refusing it, the planning officer’s report noted: the neighbour had a window to a habitable room within 1 metre of the proposed extension wall; it failed the 45-degree rule when applied to the vertical and horizontal planes; at this distance, it would significantly impact on daylight and outlook to the window; at the height at this distance, Mr K’s neighbour’s property would feel increasingly enclosed.
• Approved application (Mr K): Mr K moved the proposed wall to the extension back away from the boundary by 1m. The officer decided setting it back reduced its impact on the neighbouring property. Under this consent, the rear door, which had been facing the neighbour’s property, was removed. The rear patio doors would face down the garden.
• Approved application (Neighbour): This went out from the existing rear extension towards Mr K’s property. While it would go to the boundary, it had a sloping roof down towards it which meant it was not as high at this position as the existing extension. The proposed plans show the top of the neighbour’s extension at its nearest point to the boundary being below that of the top of Mr K’s window. The new extension’s roof at this location sloped up and away from the boundary towards the new wall. The report noted the separation distance between Mr K’s rear wall on his new extension and the narrow window at the rear which served a dining room. It also noted his own extension already overshadowed his new narrow window close to the boundary. It considered the main aspect from the property was from the kitchen extension down towards the garden.

My findings

13. I found no fault on this complaint for the following reasons:
1. Mr K believed the Council acted inconsistently when it assessed his refused application and that received from the neighbour. It is worth noting the two applications were different and the circumstances surrounding them had also changed in terms of the two properties.
2. The neighbour's application built to the boundary but, it was not as high as that proposed by Mr K in his initial application. It also had a roof which sloped up and away from the boundary.
3. When Mr K initially applied, the neighbour had one window on her rear wall which served a habitable room and was her main outlook. When the neighbour applied, Mr K had a narrow window on his rear wall which served a habitable room. He had patio doors on the rear wall of the extension which faced down his garden. His main outlook was now from these patio doors, not the narrow window. This meant the narrow window was not the only light source or outlook for this room. His extension was built up to his narrow window which, therefore, reduced the amount of light reaching it.
4. When Mr K applied initially, his neighbour had a rear door facing his property. Mr K had the same on his property. When the neighbour applied, Mr K no longer had this door.
5. I am satisfied this was not a simple case of the Council deciding two very similar applications for two very similar properties. The position of the neighbour and Mr K were different at the point they each made their applications. Mr K changed his property by the time the neighbour applied. The Council had to consider the changes he had made when it considered and assessed his application.
6. I am satisfied the planning officer reports show the Council considered relevant material planning considerations on each application.
7. Council officers and planning committees are not obliged to carry out site visits before deciding a planning application. Officers and 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.
8. There were restrictions on travel and social mixing because of COVID-19 when Mr K applied for consent.

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Final decision

14. I found no fault on Mr K’s complaint against the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman