Preliminary Report, January 2008

XXXX 2008

Jerry White                       

Local Government Ombudsman      

Our ref: 06/B/02324/BM

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Dear Mr Edmunds

Complaint against Portsmouth City Council

I have now been able to consider the information that is available on your complaint, including your submissions, the Council's written comments, the information obtained from inspection of the authority's files and the interviews carried out with the planning case officer, the Council's specialist officer on daylight and sunlight assessments, the development control manager, the head of planning and Members of the Council's Planning Committee that considered in 1998, 2003, 2004 and 2005 the planning applications you have referred to. This letter sets out my provisional view and invites you to comment before I reach a conclusion.

Your complaint

You complain that when granting planning permission in 1 998, 2003 and 2005 for a new building on land near to your property, and those of your co-complainants, the Council gave inadequate consideration to your amenity and light. You consider that the Council disregarded a number of issues in a Planning Inspectorate appeal decision of 1994 and the Inspector's findings on loss of light, over-development, unacceptable height, un-neighbourliness and overwhelming sense of enclosure.

You also say 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 your property and those of your co-complainants; and about the height of the building proposed in 2005.

You further state that when the Council considered the application in 2003 to renew the 1998 consent, the planning officer again misrepresented the authority's assessment of the likely impact of the proposed development when he said that all the British Research Establishment (BRE) guidelines had been met. Finally, you say that comments by the Council's former Chief Executive that a window used for light calculations was the worst case scenario, were not true nor was his statement that, after modification, the proposed development complied with BRE guidelines.

You further complain that the Council disregarded a consultant's report that you commissioned in 2004 on the impact of the development on the daylight and sunlight available to your property and those of your co-complainants.

The development as approved by the Council in 2005 is now being built. You 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. You say the approved development breaches the 1994 appeal decision as it is partially four storeys high and un-neighbourly; and it has enclosed the site entirely, taking away a statutory right to light enjoyed under civil law.

The relevant events

For conciseness, I do not propose to re-state the relevant events that were set out in the draft key facts sent to you on 22 August 2007 by Vereena Jones, Assistant Ombudsman. I have noted your additional comments on the course of events and the Council's record.

Provisional view

My provisional view is that I have not seen evidence of maladministration by the Council that gives grounds for further investigation of your complaint.

I have carefully considered your comments on the Council's planning decisions prior to 2005 and, in particular, your view that the permissions granted by the authority in 1998 and 2003 were fundamentally flawed because of inadequate assessments by officers and misleading and inaccurate information and advice given to Members. The Council's assessments of the acceptability of the proposals in 1998, in 2003 for a renewal of the 1998 consent, and in 2004 for a fresh scheme, its regard for the appeal decision of 1994 by the Planning Inspectorate and the findings of the Inspector and its view of the impact of the development on the amenity, daylight, sunlight and outlook of existing properties were considered by me when I determined your previous complaints on 25 March 1999, 29 May 2003, 8 December 2003 and 26 August 2004.

I attach for your reference copies of the decision letters sent to you, with the exception of the decision of 25 March 1999 that is no longer held on our records.

Having reviewed the evidence that is available on the Council's earlier decision making in relation to the site and the information provided to this office, I have not found anything that leads me to conclude that my decisions of 25 March 1999, 29 May 2003, 8 December 2003 and 26 August 2004 should change. They must therefore stand.

The 2005 scheme

I have not found evidence that the Council's grant of planning permission in 2005 should be seen as tainted or flawed by any maladministration in respect of the authority's earlier planning decisions.

The Council was required to consider the 2005 application on its individual merits. I do not consider that the Council's refusal of planning permission in 2004 for the proposals as then submitted should lead me to conclude that its permission of 2005 was perverse or unreasonable given the differences noted between the 2004 and 2005 schemes and the officers' assessment, endorsed by Members, that the_2005 concerns identified with the 2004 plans.

Councillors had sufficient information before them about the application, the setting of the site and the likely effect of the development to enable them to reach their decision to grant conditional planning consent in a proper manner.

The officers' report noted that the main differences were 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 into 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. The officers' 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 report noted the concerns that you and your co-complainants had reiterated about the potential impact of the development on the daylight and sunlight available to existing properties. The report referred to the two measures of light acceptability mentioned in BRE guidance: actual light availability and the reduction compared to the existing situation. The report further commented that if both measures did not meet the levels set out in the guidance, a reduction in light would be noticeable. But it was additionally noted that the BRE numerical guidelines needed to be interpreted flexibly, as light was only one of many factors in site layout.

The report concluded that all the windows of the affected properties were already close to or below the recommended minimum daylight level and the proposed development would result in all windows brought below this level. But in all cases the reduction in daylight was assessed as either less than or only marginally greater than the recommended maximum reduction. Accordingly, it was considered that daylight levels would be acceptable.

The report further commented that sunlight levels to all but two windows would remain above the recommended minimum absolute levels and below the maximum reduction level. Only one of these windows would fall below the recommended winter level. Sunlight levels were therefore considered acceptable.

Councillors considered the submitted scheme in 2005 taking account of the written and oral advice of officers on the likely impact of the development and the requirements of the Council's planning policies. They were mindful of your objections and written and oral representations about the effect of the development and made their decision to grant planning permission following a Members' site visit on 14 June 2005. During their site inspection, Councillors visited your property and that of your co-complainant at number 17, as well as the application site. They saw the proposed scale of the new

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Mr K Edmunds

building physically represented by scaffolding that indicated its anticipated height and depth relative to existing properties.

I have not found evidence that the Council's officers gave misleading or inaccurate information to Members about the impact of the development on the sunlight and daylight available to your property and those of your co-complainants or on whether BRE guidelines had been met. Nor do I consider that officers improperly set out to misrepresent the likely impact of the development, especially in relation to the height of the building proposed in 2005.

I have carefully considered your views on the accuracy and integrity of the statements by the Council's former Chief Executive on the window used for light calculations, as the apparent worst case scenario, and his view that, after modification, the proposed development complied with the BRE guidelines. You question the Council's assessments that a window in the ground floor of the property at number 19 in your road was the worst affected. You consider that your property and those of your co-complainants are adversely affected by the development, as they all have ground floor rear windows and the worst affected property is the house at number 15.

I have noted your view that the Council ignored your consultant's report of 4 August 2004 on the daylight and sunlight available to your property and those of your co-complainants and your concern that it was not referred to by officers in their report and oral presentation to the Planning Committee when it considered the 2005 application.

But the extent of the reference made by officers to your consultant's submission of 2004 was a matter for their judgement. And the Council's records show that officers carefully considered your consultant's analysis in August 2004. But it was noted that,
while some information had been presented on solar shading throughout the year, the consultant had focused on sunlight for two specific days, while the BRE system looks at light availability throughout the year. The consultant had also referred to actual hours of available sunlight on those days, while the BRE looks at a percentage of probable sunlight hours across the year. Daylight availability was not assessed by the
consultant. I have not seen evidence that the Council disregarded your consultant's assessments when it reached its conclusions on the acceptability of the development proposed in 2005.

I understand the points you have put about the course of events since 1994 and the consequences of the development on your amenity. I also recognise that the site lies within an historic part of the Old Portsmouth Conservation Area and has afforded views of the entrance to Portsmouth harbour. But it is also located in an area characterised by close-knit development with limited separation distance between buildings. I see no reason to challenge the way the Council has reached its decisions concerning the proposals for the site or the reasonableness of these decisions given the factors that it had to take into account.

For the reasons I have given, I do not believe there are grounds on which I should pursue your complaint further, because I have not found maladministration by the Council causing you an injustice.

But before I reach a conclusion it would be helpful if you could send me your comments on this letter or any other information you would like me to take into account. Please send them to me by 15 February 2008. If you need more time, please let me know.

If I do not hear from you by then, this letter will stand as my decision. I shall discontinue my investigation and close your complaint. Also, as the 1974 Local Government Act requires me to inform the Council of the decision on your complaint, I will then write to let the Council's Chief Executive know the outcome.

I will return your papers in due course. Our policy is normally to destroy files 14 months after we have decided the complaint.

Yours sincerely

J R White

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