The Draft Key Facts, produced by the LGO, August 2007

Investigation into Complaint No 06/B/02324 against Portsmouth City Council

Key to names used: Mr Long, Mr Edmunds the Complainant. Officer A, Principal Planning Officer. Officer B, Planning Officer. Officer C, Development Control Manager. Officer D, Head of Planning

Report Summary

Planning

The complainant, Mr Long, (not his real name) says that the Council gave inadequate consideration to his amenity and light and that of his co-complainants and disregarded the findings of a planning inspector in 1994 on loss of light, overdevelopment, unacceptable four storey height, un-neighbourliness and overwhelming sense of enclosure, when it granted planning permission in 1998, 2003 and 2005 for a new building on land near to his home ('the site' - see Appendix 1: location plan).

He considers that Council officers gave misleading and inaccurate information to councillors in 1998, 2003 and 2005, and to my office, about the impact of the development on the sunlight and daylight available to existing properties and the height of the building proposed in 2005.   Finally, he says that the Council acted inconsistently and perversely in approving the 2005 application, when it refused planning permission in 2004 for similar development; and it has disregarded his statutory right to light and that of his co-complainants.

He states that the approved development will increase the height of buildings on the site from two to four storeys, cover almost all the land with a new building at this height and significantly reduce the already limited sunlight and daylight available to his home and those of his co-complainants.

Introduction

1. The complainant, Mr Long and his co-complainants say that, when granting planning permission in 1998, 2003 and 2005 for a new building on land near their homes in Ash Street, (not the real name), the Council gave inadequate consideration to their amenity and light. He and his co-complainants consider that the Council disregarded a Planning Inspectorate appeal decision of 1994 and the Inspector's findings on loss of light; overdevelopment; unacceptable height; un-neighbourliness and overwhelming sense of enclosure. The land the subject of the complaint is referred to in this Report as 'the site' - see Appendix 1: location plan.   The complainants' properties are also shown on the location plan.

2. Mr Long and his co-complainants also state that an officer gave misleading and inaccurate information to the Council's Planning Committee in 1998, 2003 and 2005 about the impact of the development on the sunlight and daylight available to existing affected properties; and about the height of the building proposed in 2005.

3. They believe that the Council reached its decision in 1998 to grant planning permission in an unlawful manner as a planning officer, Officer A, lied to the Planning Committee when he stated that the application met all the Building Research Establishment (BRE) guidelines on light when this was not the case; and because officers and councillors ignored the findings of the Planning Inspectorate in the appeal decision of 1994.

4. They further state that when the Council considered the application in 2003 to renew the 1998 consent, Officer A again lied to the Planning Committee when he said that all the BRE guidelines had been met.

5. Finally, they say that statements made by the former Chief Executive of the authority that the window of number 19 Ash Street was used for light calculations, as it was the worst case, were not true nor was the former Chief Executive's statement that, after modification, the proposed development complied with the BRE guidelines. They consider that all their properties are affected as they all have ground floor rear windows and that the worst affected property is number 15 Ash Street.

6. They consider that the Council acted inconsistently and perversely in approving the 2005 application, given its refusal of planning permission in 2004 for a similar scheme; and as the development approved breached the 1994 appeal decision and was partially four storeys high, un-neighbourly and enclosed the site entirely, taking away their statutory right to light enjoyed under the 1832 Prescription Act.

7. They further complain that a consultant's report of 4 August 2004 on the impact of the development on the day light and sunlight of existing properties, privately commissioned at their expense for the 2004 refused application and costing over £1000, was not referred to by officers in their written report and oral presentation to the Planning Committee when it considered the 2005 application, despite its continued relevance to the assessment of the acceptability of the 2005 proposals.

15. The rear elevations of Mr Long's terraced house and those of his co-complainants look southwards towards the back of the site. All of the land referred to in the complaint is within the Old Portsmouth Conservation Area, close to the historic Portsmouth waterfront and entrance to Portsmouth Harbour. The area is characterised by tight knit development, dating back to the 18^th century. The site suffered war time bombing and was in use as an open commercial yard, with a two storey building occupying a limited area to the west side.

16. During the period referred to in the complaint, the Council received some 15 applications for planning permission and Conservation Area consent to redevelop the site for residential purposes and provide flats or a detached dwelling house in a new three or four storey building.

17.    A part three storey/part two storey detached house, with a basement and associated car parking, approved by the Council in 2005, is currently being built at the site.

Key events before 1993

18. On 20 December 1991 and 22 January 1992, applications for conservation area consent for demolition works and the construction of a four storey building to
provide six flats on the site were submitted to the Council, references A*14689/AA  and A*1468S/AB (applications 1 and 2).   On 16 March 1992, the Council's Planning Committee refused consent for both applications, following a number of objections and representations.

19. On 13 April 1992, the Council received a planning application reference A*35137/AA, for a three storey detached house on adjoining land. Conditional planning permission was granted for this proposal on 10 November 1992, following design changes.

Events in 1993 and 1994

20. On 21 January 1993, the Council received applications for planning permission and conservation consent, references A* 14689/AC and A*14689/AD (applications
3 and 4) for a new three storey building at the site with accommodation in a mansard roof and parking.

21."color: black; letter-spacing: -.1pt; font-weight: normal"> On 2 July 1993, applications 3 and 4 were refused by the Council's Planning Committee against officers' recommendations for conditional permission and
consent. On 29 December 2003, the applicant lodged appeals with the Planning Inspectorate.

22.  On 24 March 1994, the Planning Inspectorate rejected appeals against the Council's refusal of planning permission and conservation area consent for applications 3 and 4 to construct a 'four' storey building to provide five flats and parking at the site and carry out demolition works within the Conservation Area. The proposal involved third floor accommodation in a mansard roof. The Inspector concluded that there were architectural merits in turning the corner of the site with a new building, But these were outweighed by the vertical scale and massing of the envisaged scheme.

4 TCPA s65 and the General Development Procedure Order 1995, Article 8

23. The Inspector further commented that there would be a dominating and oppressive impact on residents at the rear of the site and the terrace of properties occupied by the complainants would stand to lose sunlight and daylight. Their lighting derived in part from the gap in the building frontage at the site and from over the roof of properties to the immediate side of the land.   He considered that the proposal would be un-neighbourly, cause undesirable shadowing, loss of amenity and a strongly enclosing effect that militated against the grant of planning permission.

Events in 1997 and 1998

24.  On 1 October 1997, the Council received a planning application reference A*35137/AC to renew the conditional planning permission of 1992 for a three storey detached house on the land immediately adjoining the site.   The submitted elevation was the same as that approved in 1992. On 30 October 1997, the "Council's Planning Committee granted conditional planning permission for renewal of the consent.

25. On 17 and 29 November 1997, Mr Long complained to the Council that it had illegally granted planning permission in October 1997 for the proposed house. On 1 December 1997, the Council's former City Planning Officer replied to Mr Long, refuting his claims. On 13 January 1998, the Council's former Chief Executive received a letter from Mr Long stating that the City Planning Officer had ignored issues of privacy and light.

26. On 14 January 1998, the Council received applications for planning permission and conservation consent for a new three storey building with a roof terrace and integral parking at the site, references A*14689/AE and A*14689/AF (applications 5 and 6).   On 19 January 1998, Mr Long asked the Council's Chief Executive and City Planning Officer to provide him with information on these applications. He repeated his request on 26 January 1998. On 27 January 1998, the Chief Executive replied to Mr Long's letters of 13 and 19 January 1998.

27. Also on 27 January 1998, the Council's then case officer wrote to Mr Long about applications 5 and 6. The same day, she visited the site with the Council's former special projects officer and viewed the land from a neighbouring property, number 17 Ash Street, now occupied by one of the co-complainants. Her site notes referred to her consideration of the impact of the development on adjacent residential occupiers.

28. During February 1998, the Council received amended plans for applications 5 and 6, showing a private roof terrace and a gable to a stairwell. The special projects officer carried out an assessment of the impact of the proposed development on sunlight and daylight. Mr Long made two separate requests for additional information about the applications, and the case officer responded, Mr Long says that a development control worksheet commented that the amended plans did not overcome the problems with the impact of the development on the light of nearby properties.   He adds that planning officers advised the Committee at the time and later my office that BRE criteria on light had been met when this was not the case.

On 7 February 1998, the special projects officer submitted detailed comments to the applicant's architects on sunlight and daylight issues and the impact of the 1998 application. As the planning department's specialist on light issues, he advised councillors on this subject during their visit to the site on 9 March 1998 and at the Committee meeting on 11 March 1998.

On 12 February 1998, the Council received further amended plans, omitting the roof terrace and altering the roof design. On 18 February 1998, the case officer carried out a further site visit. On 27 February 1998, the Council received amended plans that altered the external appearance to reflect the conservation area. A three storey flat roofed building was now proposed. On 2 March 1998, the Council re-notified neighbours and objectors.

After receiving corrected dimensions and additional objections, the case officer visited the site again to check the accuracy of the re-submitted plans. A Members' site visit took place on 9 March 1998. On 11 March 1998, the Council's Committee resolved to grant conditional planning permission for the three storey building, to form four flats. The Committee heard deputations from Mr Long and other objectors and noted that one letter of support had been received, together with six objections.

32.     On 14 April 1998, Mr Long complained to the Council's Chief Executive that the City Planning Officer had colluded with the developer of the site and the adjoining land.   On 1 May 1998, the Chief Executive rebutted Mr Long's allegations. On 4 June 1998, Mr Long requested confirmation of the status of the officer who carried out the sunlight and daylight assessment of applications 5 and 6. He also asked for a copy of the assessment.

33.     In his present complaint, Mr Long says that the Council failed to consider the light that would be available to his property or those of his co-complainants at numbers 15, 17 and 27 Ash Street as only the light available to the first floor window of 19 Ash Street was assessed.

Events in 2003

34.     Conditional planning permission for renewal of the 1998 consent for a three storey building to form four flats with parking was granted under officers' delegated powers on 13 March 2003 (planning application reference A*14689/AM - application 7).   The application was considered to be essentially the same <as that approved in 1998. Issues concerning loss of light had been considered in 1998. No grounds were seen for refusal.

35.     Mr Long says that a letter of 25 June 2003 to my office, signed by the Council's former Chief Executive wrongly stated that: "The analysis has not been carried out on all habitable rooms. It has been carried out in respect of the windows judged to be the worst case scenario. This is not Mr Long's property but 19/21 Ash Street."

36. Mr Long further states that a letter of 17 September 2003 from the former Chief Executive to my office also wrongly commented that: "Although I accept that the proposed development will result in some reduction to light levels to properties along Ash Street, I am satisfied that the modifications have greatly limited light reduction and are in compliance with the BRE guide." He considers that his subsequent enquiries to the Council have shown that all the windows assessed in properties affected in Ash Street by the development of the site have failed every test applied.

Events in 2004

37. Following a Members' site visit on 10 August 2004, the Council's Development Control Committee refused planning permission on 11 August 2004 for planning application reference A*14689/AN, for a part two/part three storey dwelling house (application 8).   The Council's record is that Officer A drew the Committee's attention to Mr Long's representations and his consultant's assessment of the light that would be available to his property and those of his co-complainants. The reasons for refusal were that: a) the proposal would have a detrimental impact on the amenity of nearby properties by reason of diminished daylight and sunlight penetration, an unacceptable sense of enclosure and increased overlooking, and be contrary to Council policies; and b) the overtly contemporary design would be discordant and have a detrimental effect on the character and appearance of the conservation area, breaching Council policies.

Events in 2005

38. On 7 March 2005, the Council received planning application A*14689/AP (application 9) that referred to a proposed part two/part three storey dwelling house and basement at Site A.

39. On 16 March 2005, Mr Long received the Council's notification letter informing of the further planning application for the site. The same day, he complained to the Council's Chief Executive that Officer A had been appointed as the case officer. He requested that Officer A be removed from the case while his further complaint to me about the officer's previous handling of proposals for the site was being investigated. He also asked the Council for an assurance that it would provide details of light assessments at least seven days before any Committee hearing on the application.

On 5 April 2005, Mr Long objected to application 9. He said there were outstanding permissions for the site for 'a three storey dwelling house' and 'a three storey block of flats'.   These permissions had counted the ground floor as the first floor and the subsequent two floors as second and third floors. Application 9 was stated as being for a three storey dwelling when in fact it was for a part three and part four storey dwelling, in the same way as the extant consents. More than two thirds of the development proposed in application 9 would be at four storeys and mostly one storey above the height permitted previously. He considered that the way the development had been described was potential subterfuge.

Mr Long added that the developer's architect had wrongly stated that the land had been occupied by a building with three floors. There had been a two storey building with a pitched roof, occupying less than a third of the site. The application did not overcome the Inspector's reasons for turning down the appeal for the 1993 scheme, which had been at a similar height. The proposal was over development; with an overwhelming sense of enclosure. It was neighbourly and would result in increased overlooking and an unacceptable loss of suniight, daylight and outlook for affected properties. He referred to the Council's grounds for refusal of application 8 in August 2004. Application 9 did not meet BRE Good Practice Guide criteria on sunlight and daylight, particularly winter sunlight.

Finally, he mentioned likely flooding of the basement due to the local geology. He requested that the Council calculate the expected sunlight and day light loss for ground and/or first floor windows at his property and the properties of his co-complainants at numbers 15, 17, 19 and 27 Ash Street; and asked for a site visit by the Council's Committee. He also intended to make a deputation to the Committee.

On 29 April 2005, the Council's former Chief Executive apologised for her delay in replying. There had been errors by the Council in its previous consideration of light data that had been acknowledged. But assessments of sunlight and daylight impact were carried out by specialist officers who advised the case officer. Light readings would be available at least five days before the relevant Committee. Officer A was very experienced, with a detailed knowledge and understanding of the sensitive location of the site within the Old Portsmouth Conservation Area. His assessment would take into account the technical advice of other officers. It was not for residents or applicants to dictate to the Council which officers it assigned to cases, Officer A's skills and experience were appropriate. There was no conflict of interest.

44. During a Members' site inspection on 14 June 2005, councillors visited Mr Long's property and number 17 Ash Street. When they visited the site, councillors noted scaffolding erected on the site by the applicant to give them an impression of the height of the proposed development.

45. On 16 June 2005, the Council's Development Control Committee considered application 9 and heard deputations from Mr Long and two other objectors. After being advised by officers on differences between the submitted scheme and the proposal refused in 2004, the Committee resolved to grant conditional planning permission. The main differences were stated as being that the height of the glazed projecting bay fronting the road had been reduced from 11 metres to 9.9 metres and more vertical emphasis had been introduced in the front elevations. Additional windows were proposed in the rear elevation, but these would be obscure glazed to prevent overlooking.   Other design changes involved sloping roof lines away from the properties to the rear and towards the street and the
repositioning of the new dwelling further into the site, away from the rear boundary.

46. It was not considered that there was a basis for withholding consent. The Council's assessment was that the revised proposal, with its reduced height, significantly addressed the neighbourly aspects of the form of development rejected by the Inspector. The Committee decided that its concerns in refusing the 2004 application had been overcome.

Events from 2006

47. On 26 March 2007, the Council's new Chief Executive replied to Mr Long's letter of 13 March 2007and correspondence of 9 March 2007 that had not been received by his office. Building control inspections of the development were being dealt with by a private sector approved building inspector. The Council received an initial building notice on 25 November 2005. A valid planning permission existed for one dwelling on the site and construction appeared to have re-commenced. The continuation of the development was not something the Council could influence. Notices of temporary road closures for building works would have been dealt with by its highways contractor.

48. On 1 April 2007, Mr Long complained further to his MP about the Council's consideration of the development of the site, following the MP's replies of 19 and 30 March 2007. He said: the Council had ignored the Inspector's appeal refusal in granting planning permission. Planning officers lied to Committee about light readings in the original permission and renewal. They misrepresented the facts in both the 2004 refusal and 2005 approval and the differences between the scheme refused in 2004 and approved in 2005 were negligible and insignificant. He recalled that the MP had told him that officers had lied about light readings. He asked the MP what action he would take to eradicate abuses of the planning system, given his additional role as the Council's portfolio holder for planning. He also said the MP's dual responsibilities were a blatant conflict of interest,

The Council's comments

49. In her written comments on the complaint, the Council's former Acting Chief Executive said that in considering the planning applications submitted for the site, daylight and sunlight assessments were carried out for the ground and first floor windows of 15 and 17 Ash Street, the first floor windows at 19 and 21 Ash Street and the ground and first floor windows of Mr Long's house at 23 Ash Street. The Council noted the two measures of light acceptability that were stated in the BRE guidance: a) actual light availability and b) the reduction in light compared with the existing situation. If both a) and b) did not meet the levels specified in the guide, the BRE guidance was that a reduction in light would be noticeable. The guidance was also clear that the numerical guidelines should be interpreted flexibly. Light was only one of many factors in site layout that needed to be taken into account in assessing the acceptability of development.

50. The Council's assessment was that all the windows considered were currently close to or below the recommended minimum level of receiving 27% of available light. With the proposed development, all windows would be brought below this level. But, in all cases, the reduction would be either less than or only very marginally greater then the recommended maximum reductions. On this basis the daylight impact of the development proposals for the site had been considered acceptable.

51. The Council's further conclusion was that sunlight levels to all but two of the windows considered would remain above the recommended minimum absolute levels and below the maximum reduction level. Only one window was assessed as likely to suffer a fall in sunlight below the recommended winter level of 5%. Sunlight levels were therefore considered acceptable.

52. The Council noted Mr Long's reference to a right to light and entitlements under the Prescription Act 1832. Claimed private rights to light or other private interests were not a material planning consideration under the planning system.

53. The Council's view was that it had given appropriate regard to the Planning Inspectorate's findings of 24 March 1994 in considering the later planning applications for the site. The proposal refused by the Inspector had been a four storey building with third floor accommodation in a mansard roof. The Council's interpretation of the appeal decision had been that the mass of the proposal in 1994 had been dismissed, not the principle of the development of the site. Development of the site would result in some reduction of light to properties in Ash Street. But the planning permissions subsequently granted by the Council had reflected its assessment that the later amended proposals, with a reduction in height, had greatly limited the likely reduction in light that would result and had
addressed the un-neighbourly aspects identified by the Inspector.

54. The Acting Chief Executive Council further commented that she did not believe there had been any attempt by officers to give misleading or inaccurate information to councillors. She was satisfied that the applications submitted in 2004 and 2005 were different and that the differences had been explained in the officers' reports and commented on orally by Officer A at the Committee meetings when they were determined. Members of the Development Control Committee had reached the view that the concerns expressed in the 2004 refusal decision had been overcome in the 2005 proposal.

At interview, Officer A, the case officer refuted Mr Long's view that he had misinformed or misled the Committee or my office about the impact of the various submitted schemes on the sunlight and daylight of nearby occupiers. His assessments of the applications submitted and advice to councillors had followed a careful analysis on each occasion of the proposals put forward and been based on technical advice given by the Council's former special projects officer and, most recently, the advice of Officer B who had taken on a role as the planning department's lead officer on sunlight and daylight issues.

Officer B, a planning officer with a lead responsibility for sunlight and daylight assessments, said she could not speak for the former special projects officer. But she had no reason to question his previous assessments of the development or the acceptability of the proposals approved by the Council in 2005. The rejected 1993 scheme had involved a greater building height across the full extent of the site and a design that maximised development potential, to the detriment of the relationship of the -development with its surroundings. The 1998 approved scheme, as renewed in 2003, overcame earlier concerns about the impact of the proposals. There would be a reduction in available sunlight and daylight to nearby properties but not such that would have given grounds for refusing the scheme approved in 2005.

Officer B added that Mr Long's consultant had used a different methodology from that used by the BRE. The Council relied on the BRE's technical approach and criteria, as was the case with most councils. It was not possible to make a like for like comparison of the Council's assessments with that made by Mr Long's consultant as they had a completely different technical basis.

Officer C, the Council's new Development Control Manager, said she had not been involved directly with the case and the applications referred to. But her examination of the files had not revealed any concerns on her part about how the Council had dealt with the applications or assessed the impact of the development. She commented that Officer A was a very competent and experienced planning officer who had extensive knowledge and understanding of the site and its setting in the Old Portsmouth area.

Officer D, the Council's Head of Planning, said that he was satisfied that officers had correctly advised councillors on the impact of the development. The Committee had carried out site visits and seen the site and its setting for themselves. Councillors- had viewed the site from the properties of objectors, including Mr Long's house. Officers had consistently recommended approval of the proposals submitted after the appeal decision. Members had gone against officers' advice when the application was rejected in 2004,

Officer D further commented that he was concerned at the almost vexatious aspect of Mr Long's complaints. He said Mr Long's concerns had been considered carefully by the Council and officers were becoming exhausted in attempting to address his enquiries and reiterated complaints.

The councillors interviewed were supportive of the development, as approved. They said it was not an easy site. But the development was much needed regeneration. They had been satisfied with the accuracy and sufficiency of the advice given by officers to the Committee. One councillor said that it might have been better if officers had perhaps been less categoric in their advice on the impact of the development.

Several councillors questioned the persistence of Mr Long in his complaints and what injustice he had really suffered or would suffer given the factors in the Council's influence.

Photographic evidence

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