The Ombudsman's final decision
Summary: Mr X complained about the Council’s decision to grant planning permission for a neighbour’s extension, resulting in a loss of light to his property. We do not find fault in the Council’s decision making.
The complaint
Mr X complains about the Council’s decision to grant planning permission for an extension to the rear of a neighbouring property. Mr X says the Council has failed to follow its own policies and best practice. Specifically, Mr X feels the Council should have applied the 45-degree rule and the Council’s decision to grant planning permission will result in a loss of light to his property.
The Ombudsman’s role and powers
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) 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) 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)
How I considered this complaint
I spoke to Mr X’s representative and considered information he provided. I also considered: The Town and Country Planning Act 1990 Mr X’s complaint letters and the Council’s responses The Council’s local development plan The Council’s supplementary planning document The planning application documents Mr X and the Council had the opportunity to respond to a draft decision, and I considered any comments before making a final decision.
What I found
Permitted development Not all development needs planning permission. Certain developments are deemed permitted, providing they fall within limits set out in regulations. This is known as a ‘permitted development’.
When a proposal falls within the parameters of a permitted development it will not need planning permission. A council therefore has no basis to refuse it.
Relevant to this case, a single storey rear extension will not need planning permission if: It does not extend beyond the rear wall of the original house by more than four metres for a detached house, or three metres for any other house.
It does not exceed four metres in height. If the extension is within two metres of the boundary, the height of the eaves cannot exceed three metres.
Decision making and material considerations Where planning permission is required, a council must decide on planning applications in accordance with its development plan unless material considerations indicate otherwise.
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 loss of light or overshadowing.
Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded on valid material planning reasons.
Government statements of planning policy are material considerations.
General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities).
It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.
The Council’s local development plan The Council publishes its local development plan on its website, and this sets out how it considers issues of potential overshadowing when it comes to new planning applications.
The plan explains new developments should be designed to minimise their impact on existing neighbouring properties.
The Council’s supplementary planning document Planning officers often use a rule of thumb, known as the ‘45-degree rule’ when considering loss of light or the overbearing impact of a new development. To do this, they imagine a 45-degree line from the mid-point of the nearest habitable room window on the neighbour’s property. If the new building or extension crosses the 45-degree line, it is likely to affect the outlook and daylight of the neighbour. However, that does not necessarily mean a council should refuse a planning application. A council would also assess the significance and impact of any potential loss of daylight or overshadowing.
Not all councils take this approach; it is up to each council to decide its own policy including whether to apply this rule. The Council’s supplementary planning document refers to how the Council considers the 45-degree rule.
The document explains a new development next to an existing residential property should not normally project beyond a 45-degree line taken from the centre of the nearest habitable window.
The document does not specify whether the Council considers this rule applies to ground floor extensions, but the illustrative diagram is for a two-storey rear extension.
What happened Mr X’s neighbour, Mr Y, made a planning application to extend an existing single storey rear extension on his property.
Mr X objected to the plans, saying: The proposed extension would severely reduce the light received through the only window of his dining room and goes against the 45-degree rule.
The proposed black render of the wall facing his property would also severely reduce the light received through his window.
He had concerns about how his neighbour intended to build all the way up to his boundary without removing his fence panels or posts or encroaching on his property during the build.
Mr Y submitted revised drawings with the black render removed from the plans.
The Council’s case officer’s report on the application outlines the relevant local plan and policies; summarises objections received, including Mr X’s concerns and sets out the officer’s consideration of whether the development impacts on residential amenity. The report said: It is generally accepted ground floor projections are commonplace, so the 45-degree rule is only used to assess loss of light to second storey windows.
Ground floor extensions like this one are usually granted as permitted developments. It would not be reasonable to apply the 45-degree rule when it is not needed. The case officer did not consider the proposal would result in any adverse overbearing or overshadowing.
The development would be closer to the neighbouring property, but the height of the proposed extension was only slightly above permitted development limits. It explained this development, an infill extension, would not extend beyond the ground floor projection that was already there. On balance, the case officer considered there would be no overbearing impact beyond what already existed between the properties.
The removal of the black render from the original plan would reduce any potential overbearing impact.
The proposal did not represent a significant unacceptable impact to overshadowing, overbearing or overlooking and was in accordance with the Council’s local plan and supplementary planning document.
The Council approved planning permission based on the case officer’s report.
Through a representative, Mr X complained to the Council in August 2021. Mr X said: The width of the extension is currently 62cm longer than planned for and listed in the case officer’s report and would be significantly more impactful than the existing property.
Mr X’s property is South of Mr Y’s, meaning it is in the shadow of his neighbour’s property for most of the day and the proposed extension would create even more shadowing.
Although the proposed extension is only 10cm higher than permitted development limits, it would have a real impact on shadowing in Mr X’s garden.
As this is not a true permitted development, the Council would need to notify Mr X and give him the opportunity to object which would trigger an assessment by the Council to assess the impact on his amenity.
The 45-degree rule applies to any adjacent habitable room window, not just first floor windows, and should have been applied to this planning application.
The Council responded to Mr X’s complaint later that month. It explained: The 45-degree rule is a ‘rule of thumb’ and there is no fixed standard to how it is applied.
While the 45-degree rule is commonly used for single storey developments, the Council’s supplementary planning document’s diagram indicates a two-storey development. This being the case, the Council’s policy does not require the rule to be applied to single storey extensions.
The officer’s report was a sound assessment of the issues and the overall planning balance, and it would be difficult to reach a different overall conclusion.
The Council would review how it applies the 45-degree rule going forward to ensure a more robust approach.
In November 2021 Mr X asked the Council to reconsider his complaint. He explained: Regardless of the illustrative diagram, the Council’s supplementary planning document does not differentiate between single or two storey developments. The case officer ought to have applied the 45-degree rule to this development.
Approving this development caused real damage to Mr X’s amenities.
The Council responded to Mr X later that month. It said: Its original complaint response accepted it ought to have applied the 45-degree rule to this planning application and the Council was now reviewing its approach.
Having reviewed the approved plans and the case officer’s assessment, the Council was satisfied with the conclusions reached. Despite the mistake in not applying the 45-degree rule, the proposed extension is acceptable in planning terms and has not resulted in any adverse impact on the amenities of Mr X’s property.
Mr X brought his complaint to the Ombudsman in April 2022.
In response to enquiries the Council said: The 45-degree rule is not applied religiously, and it is unlikely to refuse planning permission where there is an insignificant infringement. It explained it also considers things such as the existing relationship between properties.
The case officer considered that the height of the proposed extension was only 0.9m above the permitted development limits, and that this was an infill extension which would not project beyond the rear of the existing property. They decided the impact to Mr X’s property would be limited and not significantly greater than the existing arrangement.
The case officer’s report explains they did not consider there would be any adverse overbearing or overshadowing to the neighbouring properties.
It considers each planning application on its own merits in line with the relevant guidance.
Analysis The Ombudsman is not an appeal body. This means our role is not to consider whether a planning application should have been approved or not. Rather, we consider whether the Council decided on the application properly, having regard for the key factors and policies which are relevant.
If we consider the Council followed processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
The 45-degree rule The 45-degree rule is a rule of thumb, and it is up to the Council to decide whether to use it. The Council’s published policy does not specify this applies to ground floor development. And, the case officer’s report shows the case officer considered the 45-degree rule but decided the Council’s guidance was to apply it for first floors upwards.
I appreciate Mr X disagreed with the case officer, but there appears to be no fault with how the Council made its decision. The case officer made a judgement taking into account relevant policy, I cannot otherwise question whether it was right or wrong. I find no fault in the Council’s decision-making process.
Although the Council accepted it erred in not applying the 45-degree rule, in its final complaint response to Mr X, on my own review I find no fault in its decision making here.
Overshadowing I have considered the steps the Council took to consider the issue of overshadowing as a material consideration when looking at this application.
The case officer’s report shows they considered and applied relevant policy, they considered whether there was an impact on Mr X’s amenity, including overshadowing, and they decided there was not. The officer does not give any specific reason for this decision other than this is their judgment. That itself is not fault.
The report reads as though the judgment is based solely on the fact the 45-degree rule does not apply, which would appear arbitrary. However, in considering the Council’s response to our enquiries and the report as a whole, I do not consider that this is the case. I find no fault with the decision-making process.
Final decision
I do not find fault with how the Council considered the 45-degree rule or the issue of overshadowing when deciding to approve this planning application.
I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman