Public Service and Local Government




OMBUDSMAN WATCHERS RESOURCE CENTRE

Annex 1: Key Facts

Complaint ref: 10 000 639 Council: Portsmouth City Council

The land and buildings referred to in the complaint

1. The land referred to, 'the site', is occupied by a three storey, mid-terrace house completed in 2002. The site is in a conservation area and adjacent to a grade II listed building.

2. Mr A's property is situated to the rear and north. A roof terrace of Mr A's property and side windows of his house face the site.

7776 planning permission of 2002 for the site

3. On 1 May 2002, planning permission was granted to retain a new three storey building constructed at the site, with a pediment feature to the south elevation and a roof terrace enclosed by 1.1 metre high safety rails. Condition 1 required the provision and retention of an obscure glazed screen to part of the north facing edge of the roof terrace.

The Breach of Condition Notice of June 2002 for the non-installation of the screen

4. On 18/20 June 2002, the Council served a Breach of Condition Notice for non-compliance with the condition as the screen had not been installed. Subsequently, it was fitted. On 18 July 2002, the Council confirmed that the Notice had been complied with.

Mr A's report in January 2007 that the screen had been removed

5. On 16 January 2007, Mr A reported that the screen had been removed the previous day, in breach of the planning condition. He said that the screen had been built to prevent direct overlooking into the bedrooms of neighbouring properties and asked the Council take immediate enforcement action to have it replaced.

6. On 17 January 2007, the Council carried out a site visit. On 18 January 2007, the Council acknowledged his e mail about the matter. On 30 January 2007, the Council wrote to the owner of the property, 'the owner', advising that the screen needed to be replaced within 28 days, with a failure to do so resulting in the commencement of legal action.

7. On 5 and 7 March 2007, the Council carried out further site visits. Also on 7 March 2007, the Council received a letter from the owner stating that the screen had been removed due to storm damage in January 2007 and that the occupier of the adjoining property had expressed a preference for the rails to remain as this allowed uninterrupted views. The owner suggested that a natural screen might offer less wind resistance and be more appropriate. The metal frame of the screen had been retained, but the glass was beyond repair and its weight had damaged the roof.

8. On 10 March 2007, Mr A submitted a Freedom of Information Act request to the Council.

9. On 19 March 2007, the Council reiterated to the owner the requirements of the Breach of Condition Notice and the planning permission. On 20 March 2007, the Council confirmed to Mr A that it had advised the owner of the need to comply with the requirements of the planning permission and that its investigation was continuing.

10. On 25 April 2007, the Council served a Section 16 Requisition for Information Notice on the owner, as a preliminary step to possible enforcement. The Notice requested details of the interest or that of any other parties in the land.

The enforcement notice of June 2007

11. On 6 June 2007, the Council served an enforcement notice for the removal, without planning permission, of the obscure glazed screen. The notice required the removal of the rails on the north edge of the roof terrace and the full installation of the obscure glazed screen in accordance with the approved plans for the planning permission of 2002.

The owner's appeal against the enforcement notice

12. The owner's appeal of 8 July 2007 against the enforcement notice was dismissed by the Planning Inspectorate on 18 January 2008. The Inspector concluded that screen would not eliminate overlooking of other properties and it was not intended to do so. But she found that the occupiers of the property immediately adjacent and at a right angle would suffer particular unacceptable overlooking and a loss of privacy without the screen in place, given the relationship and proximity of that property to the site.

Events following the upholding of the enforcement notice

13. On 25 February 2008, the Council advised the owner that the period of 28 days for compliance with the upheld enforcement notice had expired.

14. On 3 April 2008, planning services informed legal services that the owner not had been in contact about compliance with the notice. A site visit on 2 April 2008 had confirmed that the screen had not been reinstated.

15. On 15 September 2008, legal services officers informed the owner that the Council intended to commence proceedings. On 10 October 2008, the owner stated, in a telephone conversation with a legal services' officer, that he was selling the site. The property was on the market and the rails would be removed after its sale had been agreed. He added that the occupants of the immediate neighbouring property were content with the situation.

16. On 17 October 2008, the Council agreed to take no further action at that time, having regard to the owner's stated position and intentions, the lack of objection from the adjoining occupier, the fact that the site was on the market with the prospect of a new owner and the impending winter period when the roof would have very limited use. On 24 October 2008, the Council received a letter from the owner confirming his comments of 10 October 2008. On 18 November 2008, the Council received a further letter from the owner stating that he intended to replace the screen as soon as the-sale of the site had progressed.

The first planning application by the new owner of the site

17. On 10 September 2009, an initial planning application by the new owner for works at the site was considered invalid on receipt. On 15 September 2009, the Council stated to the applicant that information was lacking on flood risk.

18. On 17 September 2009, the application was resubmitted and registered. Also on 17 September 2009, a revised design and access statement and flood risk assessment were received. The application proposed a single storey, semi-circular extension to part of the roof of the property at the site, with a new steel and glass screen balustrade around the roof terrace, the removal of the existing two storey front projecting bay windows and their replacement with floor to ceiling picture windows at first and second floor. At the time of receipt of the planning application, the upheld enforcement notice requiring the reinstatement of the obscure glazed screen to the roof remained extant.

19. On 21 September 2009, neighbour notification letters were sent, including to Mr A's address. The following day, a press advertisement was placed and on 23 September 2009 a site notice was posted. The planning case officer visited the site that day.

20. On 29 September 2009, a conservation and design officer raised no objection to the general form of the development. But he was concerned about the proposed changes to the bay windows and their effect on the appearance of the front elevation of the building.

21. On 13 October 2009, Mr A submitted an objection and a deputation request. He said that the site had been developed without loss of light calculations carried out. Later assessments had shown that the new building did not meet BRE requirements on loss of light. Subsequently, planning permission had been given to create three storeys with a flat roof. Consent had been given on the basis that the flat roof was not to be used as a roof terrace. After the building had been completed, railings had been placed around the roof and a glass portico added, without planning permission. Following residents' complaints, retrospective planning permission had been given for the further changes.

22. He considered that the events represented additional evidence of planning abuse and incompetent/corruption by the planning service. Mr A requested that full light loss calculations be undertaken and asked that the conservation officer had no involvement with the case, given his role in the consideration of the earlier proposals.

23. During October 2009, the Council received further objections and a new deputation request.

24. On 20 October 2009, the case officer carried out a light test, recording that the test was carried out by reference to the nearest south facing window at Mr A's property. The officer noted the concerns of residents about loss of light and that the rear elevation of the building at the site faced north onto a courtyard providing light and outlook for a number of properties.  It was considered that few properties had windows that directly faced onto the rear elevation of the building and there were already obstructions between the site and Mr A's property, including walls and single storey flat roof projections.
 
25. Calculations for a window at Mr A's house, referred to as ground floor, showed 31% of daylight already available. The proposed extension would increase the height of the existing building, but not such to reduce available daylight to the window in question that would retain 31% of available daylight and was considered suitable for a sunlight assessment as it was within 18 degrees of due south. Calculations showed that currently 66% of sunlight was available to the window and that while the roof extension would increase the height of the building at the site, Mr A's window would retain 66% of available sunlight. The officer
concluded that, based on the site, its setting and the calculations carried out, the proposed roof extension would not result in a material loss of daylight or sunlight to nearby occupiers.

26. On 23 October 2009, a local councillor objected to the development on the grounds of its appearance and likely impact on the light and privacy of adjoining properties. On 26 October 2009, the applicant's agent advised of proposed internal alterations. On 29 October 2009, another councillor put an objection. On 2 November 2009, the Council informed Mr A and other objectors of the date when the application would be heard.

27 On 4 November 2009, the Council wrote to the new owner of the site about the outstanding requirements of the enforcement notice and seeking confirmation of his position.

28. On 9 November 2009, the chief executive noted Mr A's letter of 8 November. It was not appropriate for members of the public or developers to determine who dealt with particular planning applications. The allocation of work was the responsibility of the head of service.

The Planning Committee meeting on 11 November 2009

29. On 11 November 2009, the planning application was submitted to the Planning Committee with an officers' recommendation for refusal. The proposal had not been assessed as likely to result in a significant loss of light or outlook to adjoining dwellings or likely to have a significant impact on the amenity and privacy of nearby occupiers from the changes to the roof terrace, nowithstanding the potential for more convenient access to and use of the terrace than the previous roof hatch. But it was considered that the alterations to the front elevation would not preserve or enhance the character of the conservation area, respect the
character and appearance of existing buildings or preserve the setting of the adjoining listed building. Members deferred consideration of the application.

30. On 12 November 2009, the applicant's agent wrote to the case officer about revised drawings proposing the reinstatement of the bay windows and noting that the authority apparently considered the roof extension element acceptable.  In his view, the roof extension overcame the issue of the obscure glazed privacy screen that was still the subject of an enforcement notice. On 17 November 2009, the application was withdrawn.

Events following the new owner's second planning application

31. On 18 November 2009, the Council received a further planning application for a new single storey roof extension with new steel and glass balustrading around the roof terrace at the site. The application was described as a re-submission.

32. On 18 November 2009, Mr A wrote to the portfolio holder, noting his letter of 16 November 2009. He said the Council had an active anti-fraud and corruption policy and a statutory duty to investigate the allegations of planning corruption and the misrepresentation by officers, most recently at the committee on 11 November 2009. He intended to make a formal complaint to the Police after receiving the results of the Council's investigation.

33. On 19 November 2009, the portfolio holder replied to Mr A. He had passed on the information supplied and had asked officers to investigate. But the allegations were of a potentially criminal nature and needed to be considered by the Police. He invited Mr A to confirm that he had contacted the Police. On 19 November 2009, the portfolio holder copied to the city solicitor Mr A's letter of 18 November 2009 and his reply.

34. On 19 November 2009, the Council received a response from the new owner of the site stating that he intended to comply with the enforcement notice as soon as the planning application was determined.

35. On 23 November 2009, Mr A said that he was not prepared to make a formal complaint to the Police until his complaints of alleged corruption had been investigated by the Council's fraud and corruption investigation unit. He noted that the earlier application had been withdrawn. If any further application were made, he wished to make a deputation.

36. On 24 November 2009, the Council confirmed receipt of the further planning application and issued neighbour notification letters, with a letter sent to Mr A's address. On 25 November 2009, another third party requested a light test of the impact of the development.

Mr A's objection of 26 November 2009

37. On 26 November 2009, Mr A submitted an objection and deputation request. He said that allegations of planning corruption had been made by a member of the public at the committee when the first planning application by the new owner had been deferred. He considered that the resubmitted application should not be brought before Members until the allegations had been properly investigated by the Council's fraud and corruption investigation unit in line with the policies and procedures for alleged fraud and corruption.

38. He also referred to the extant enforcement notice requiring the installation of the obscure glazed screen that had been unlawfully removed and had been intended to stop unacceptable overlooking into the bedrooms of neighbouring properties from the roof terrace also built illegally and granted retrospective consent. Almost two years had passed since the owner's appeal had been turned down in January 2008. The Council had done nothing to enforce the order. He requested immediate action to enforce the extant notice.

39. Mr A further stated that the resubmitted proposal would exacerbate overlooking and a loss of light, amenity and outlook for neighbouring properties already affected by nearby development. He asked the Council to confirm whether the former assistant city planning officer, and now head of the planning service, who had absented himself from the Planning Committee on the grounds of a conflict of interest, still had that conflict of interest.

40. His record also was that in the case report for the committee on 11 November 2009, officers had given misleading and inaccurate information on the true height of the proposed roof extension. That needed to be measured from the existing flat roof and not the apex of a false gable at the front of the building. He was critical of the role and involvement of the conservation officer and asked that the officer had nothing further to do with the application.

41. Also on 26 November 2009, the result of the first light test was sent to the other party.  By return, he replied asking the Council to explain the basis of the calculation to arrive at the figure of 31% before and after the proposed extension and whether this assumed an overall increase in the maximum height of the building by one metre.

42. The case officer further commented that the assessment of the impact on sunlight and daylight had been taken from the skylight and sunlight indicators in the BRE document 'Site layout planning for daylight and sunlight: a guide for good practice'. Account had been taken of any obstructions, including the existing north facing parapet wall at the property, at a height of 8.5 metres, and the proposed roof extension at a height of 10.4 metres.

43. On 27 November 2009, the re-submitted planning application was publicised by a press notice. On 2 December 2009, the Council carried out a second light test, on this occasion including a nearby tower block. Also on 2 December 2009, the planning case officer explained how the 31% figure had been arrived at. On 4 December 2009, the result of the second light test was sent to Mr A.

44. On 1 December 2009, the portfolio holder wrote to the head of planning and city solicitor, enclosing a copy of Mr A's letter of 23 November 2009 and noting that Mr A would be away until 23 December 2009. He asked that account be taken of this and a proper opportunity be given to objectors to make their views known.

45. On 10 December 2009, the other third party asked the case officer if light calculations had been carried out for other adjoining properties between the site and Mr A's house. By return, the case officer commented on why this step had not been considered appropriate as a number of the windows to the rear of these properties did not serve habitable rooms and on account of the angle of the development relative to the position of the windows. It had therefore been concluded that, based on the BRE guidance, the proposed extension would not have a significant effect on the available sunlight and daylight to the properties. It had not been considered appropriate to carry out the light loss calculations for these properties.

46. On 11 December 2009, the local councillor objected to the re-submitted planning application, requesting that residents' concerns about loss of light and privacy be taken into account and drawn to the Planning Committee's attention.

The Council's initial response to Mr A's submissions

47. On 11 December 2009, the city solicitor responded to Mr A's deputation and written submission to the Planning Committee. There had never been a planning application for a two storey house at the site. All the planning applications received had been for 3 storey dwellings. Planning permission had been granted in 1997 for a three storey property, as a renewal of a permission of 1992 for a 3 storey town house. The case report on the 1997 application had referred to the appeal decision for a nearby site. That had considered the acceptability of a 4 storey dwelling and found that, in that instance, the protection of amenity outweighed the potential for enhancement of the conservation area. The case report concluded that the proposals were different. Planning permission was granted by Members,
notwithstanding objections on the grounds of loss of amenity.

48. The principle of a three storey development had been established for some 8 years when the application Mr A had referred to had been received. He had been content that the flat roof would not be used as a garden but had remained concerned about a loss of light. The change to a flat roof had lowered the overall height of the building.

49. The retrospective application for the property as constructed at the site followed an investigation of reports that the building was not being built in accordance with the approved plans. The application had been recommended for approval, with the screen and pediment features, after considering the relationship of the development to adjoining properties and a conclusion that unacceptable overlooking would not result.

50. Light readings were only a guide. The 1992 application had been assessed as not giving rise to an additional loss of daylight or sunlight. Later proposals had been at a reduced height, with no greater likely impact in terms of loss of daylight or sunlight.

51. The city solicitor added that the report to the committee in November 2009 had referred to the enforcement notice. The notice had not been complied with in part due to the change in the ownership of the property and the previous owner being declared bankrupt. The Council was pursuing the new owner for compliance. The light readings obtained in 1997 were considered. These found no more loss of daylight or sunlight to Mr A's property than already experienced from the nearby tower block. The reference to the increase in the maximum height was correct. Predetermination could not be evident. But it was not wrong for a Member to discuss an application with an officer prior to a committee meeting. The committee had listened to Mr A's concerns but had not agreed with him.

52 The city solicitor further remarked that Mr A's allegations of corruption were extremely serious. Following discussion with the internal audit manager, it was not considered appropriate for the Council to investigate the claims. Evidence to support the claims needed to be put to the Police.

53. Also on 11 December 2009, the city solicitor replied to the portfolio holder, noting his letter of 19 November 2009 enclosing Mr A's letter of 18 November 2009.  Following his review, the allegations were such that it was not appropriate for them to be investigated by the Council. If he had evidence, this needed to be given to the Police. He enclosed a copy of his letter to Mr A of the same date.

54. Subsequently, the Council received a number of objections to the re-submitted planning application and two further deputation requests. On 18 December 2009, the conservation and design officer commented that the further application removed his main concern with the withdrawn application. That had centred on the removal and replacement of the bay windows. The design change left the bay windows in place and had removed the main objection from a conservation area viewpoint. The impact of the roof extension on the conservation area was seen as limited because of the narrowness of adjoining streets and the general character of the area.

55. Also on 18 December 2009, the Council responded to a complaint by the other third party about the handling of the proposed development. On 21/22 December 2009, the Council stated to Mr A and other objectors that the new owner's second planning application would be considered by the Planning Committee on 6 January 2010, confirming that his name had been added to the list of those wishing to make deputations.

Mr A !s formal complaints of 27 December 2009 about the handling of the planning applications for the site and alleged corruption

56. On 27 December 2009, Mr A submitted complaints to the portfolio holder and the chief executive about the handling of the planning applications for the site and alleged corruption in the Council's decision making on planning matters. Statements by planning officers to the Planning Committee had been misleading, incorrect and partial, in favour of the applicant and to the disadvantage of objectors. No enforcement had been undertaken since the owner's rights of appeal had been exhausted in January 2008. There appeared to have been deliberate inaction by the Council, with the planning applications seen as a means of
implementing the enforcement process.

57.    Mr A added that the figures cited in the report to the committee on 11 November 2009 for the height of the proposed extension had been revised in the report for the January committee. The light calculations that he had received belatedly and at short notice had been done for just one window, the furthest away and least affected, with no calculations done for the windows most affected, on the ground and first floors of three immediately adjoining properties.  Objectors' concerns about overlooking had been completely ignored and retrospective permission for the unlawfully built property had been given wrongly and improperly.  He wanted a full investigation and deferral of the further application.

The Council's response of 30 December 2009 to Mr A

58. On 30 December 2009, the chief executive stated to Mr A that his complaint would be forwarded to the case officer for attention, insofar as it related to his objections to the proposed development.  If he had any evidence of corruption, he needed to produce that evidence, without delay, to the Police. On 31 December 2009, the portfolio holder wrote to the chief executive, strategic director and city solicitor and the head of planning services asking for a decision to be made about the allegations of corruption.  In a separate letter, the portfolio holder suggested to the chief executive and the strategic director and city solicitor that a formal investigation of the claims made by Mr A might be desirable, to resolve the allegations of planning corruption once and for all.

59. On 2 January 2010, Mr A wrote again to the portfolio holder. On 5 January 2010, he submitted a further objection and deputation request, immediately prior to the committee meeting due to hear the re-submitted planning application for the roof extension and other works at the site.

60. On 6 January 2010, Mr A stated to the portfolio holder that he had not received a reply to his letter of 2 January 2010 or been supplied with the light calculations requested. Nothing had been done to investigate the complaint of corruption.

61. On 8 January 2010, the portfolio holder stated to Mr A that his allegations were very serious and potentially a matter for the Police. He intended to ask officers to consider his points, but his understanding was that the chief executive and city solicitor had not seen grounds for the investigation sought. He urged Mr A to put any evidence he had to the Police.

62. Also on 8 January 2010, the portfolio holder wrote to the chief executive and city solicitor, expressing concern at the content and implication of Mr A's letter of 6 January 2010.

63. On 12 January 2010, the city solicitor stated to the portfolio holder that he had discussed his letter of 8 January and Mr A's letter of 6 January with the chief executive. He enclosed copies of his letters of 11 and 30 December 2009. The allegations of corruption were matters for the Police.  It was considered that-Mr A had not produced any evidence so far to support the claims made, but any such evidence supplied would be immediately passed to the Police. The city solicitor added that he would be meeting the chair of the standards committee and would make available to the chair the relevant file papers.

The Planning Committee meeting on 13 January 2010

64.    On 13 January 2010, a re-scheduled meeting of the Planning Committee considered a report on outstanding enforcement action concerning the site. Members resolved to pursuea prosecution for non-compliance with the extant notice and deferred consideration of the re-submitted planning application pending a site visit.

Events following the committee meeting

65. Also on 13 January 2010, the city solicitor advised the portfolio holder that he had arranged to meet the chair of the standards committee on 18 January 2010 to discuss the complaints.

66. On 14 January 2010, planning services instructed legal services to pursue a prosecution for non-compliance with the extant enforcement notice.

67. On 15 January 2010, the development control manager confirmed that a legal services' attendance note, created on 15/17 October 2008 following the telephone conversation with the former owner of the site on 10 October 2008, had been placed on the enforcement file. She requested that no further action was taken by legal in the matter, for the present.

MrA's further formal complaint of 17 January 2010

68. On 17 January 2010, Mr A stated to the chief executive that the planning application had been deferred after he and others had demonstrated that officers had made false statements to the committee on 11 November 2009 about the proposed development at the site and its likely impact, repeated on 13 January 2010, and that indicated a lack of impartiality, malfeasance in public office and corruption. He requested immediate enforcement action against the owner of the site, an inquiry into the actions of officers and a site visit before the application came back to the committee.

69. Mr A further highlighted issues that he said were contentious. A site visit requested by the portfolio holder had not been undertaken. Statements by the head of development control and the monitoring officer about the owner's personal circumstances, as the grounds for not taking enforcement action, had not been true. An individual insolvency register search found no records matching the names of the owner(s) of the property. Misleading and incorrect information had been given about the height of the roof extension that had been revised in the case report from one to 2.2 metres. Statements about light and the BRE guide had been incorrect and misleading, referring to a window that did not exist. A plan submitted with the application had not shown the worst affected property, in terms of
overlooking and light loss.

70. He considered that the chief executive's reply of 30 December had ignored his serious complaints and demonstrated a serious management failure. The letter of 11 December 2009 from the monitoring officer had contained false and misleading statements, in terms of light loss to a window that was furthest away and least affected, with no reference to the worst affected window that failed his calculations and those by the Council in 1997.

71. Mr A additionally said that at the Planning Committee on 13 January 2010, officers had made false and misleading statements to Members about another planning application. He restated his concern at the grant of retrospective planning permission for the original roof
terrace despite assurances that he felt had been given previously.

72. On 18 January 2010, the chief executive acknowledged MrA's letter. On 25 January 2010, the planning case officer and the assistant head of planning visited the site.

MrA's additional statement of complaint of 7 February 2010

73. On 7 February 2010, Mr A stated to the chief executive that he wished to add to his complaints. Despite an instruction by councillor X on 13 January 2010, proceedings to require the replacement of the glass screen had not commenced. A request by the councillor for an investigation of alleged lying and false information to Members had not been acted on. The owner of the site had not been made bankrupt. The alleged new owner might not exist. As of 14 January 2010 and according to the Land Registry, he was not the owner.  It was still registered with the original owner(s).   Mr A said that the chief executive and monitoring officer had shown dereliction of duty in failing to investigate serious allegations of fraud and corruption. It was not his responsibility to call in the Police. Neither had he received the promised substantive reply to his complaint of 17 January 2010.

74. Also on 7 February 2010, Mr A stated to the portfolio holder that he had not answered the points made. He asked the portfolio holder to act on the serious allegations of corruption.

75. On 8 February 2010, the portfolio holder wrote to councillor X, noting that Mr A had said that the councillor had apparently requested that officers begin enforcement action and that the chairman of the Planning Committee instigate an investigation of alleged misinformation and lying by officers. The enforcement action was fine if agreed by committee. But the portfolio holder requested that any evidence to substantiate the very serious allegations be supplied to the chief executive, monitoring officer and head of planning.

76. Also on 8 February 2010, the portfolio holder wrote to Mr A, commenting that it was for the chief executive to decide what internal investigation, if any, needed to be undertaken and that potentially criminal matters were for the Police.  In a separate letter of the same date, the portfolio holder copied to the city solicitor his letters to councillor X and Mr A, inviting observations and confirmation of whether councillor X had put forward any information.

77. By return on 8 February 2010, councillor X stated to the portfolio holder that enforcement proceedings needed to commence, with the committee's agreement, in relation to the site and an internal investigation launched into the alleged corruption. He had spoken to the chairman, who had confirmed his recollection of the meeting.

The Council's response of 15 February 2010 to Mr A

78. On 15 February 2010, the chief executive replied to MrA's letters of 17 January and 7 February 2010. The planning application had been deferred for a site visit, so that Members could consider the issues of overlooking and loss of light. Members had also requested a meeting with officers to discuss issues raised by the application and the points in MrA's letter of 27 December 2009, to which the portfolio holder had been invited. The meeting was not an inquiry and Members had not requested his presence.

79. Members had requested the head of the planning service to instruct legal services to commence a prosecution for non-compliance with the enforcement notice. The file had previously been passed to legal services. The owner had stated that he was in financial difficulty.  It had not been considered expedient to take enforcement action. Following the decision of the committee, legal services had now been instructed to pursue prosecution.

80. The height of the roof extension was unaltered, with measurements correct. But the case report had been amended to compare the height of the flat roof and the extension ratherthan the pediment feature on the front elevation. It was for Members to view his property and assess whether windows cited by officers existed. The block and location plans had shown the other property he had mentioned, but they had not given the house number.

81 The chief executive noted Mr A's disagreement with the light calculations by the Council. Officers had exercised their professional judgement. The appeal inspector had previously considered the issue of overlooking in his report. The Council had sought to address Mr A's questions on why the roof terrace had originally been granted permission in 2002. The former chief executive had stated on 26 April 2002 that he could not add further, a view endorsed as still applying. Finally, the chief executive confirmed that the Members' site visit would take place on 2 March 2010, prior to the committee on 3 March 2010.

82. On 17 February 2010, the city solicitor stated to the owner of the site that if he did not comply with the enforcement notice within 14 days, proceedings would be issued in the Magistrate's Court that could result in a summary conviction and fine of up to £20,000.

83. On 19 February 2010, a briefing meeting for Members, arranged by the assistant head of planning, noted the planning history of the site and the background to the planning application for the roof extension and other works.

84. Between 19 and 23 February 2010, the Council sent letters to Mr A and other objectors confirming that the application would be heard by the Planning Committee in March 2010.

85. On 21 February 2010, Mr A stated to the chief executive that his reply of 15 February 2010 contained many inaccuracies and false statements. As of 14 January 2010 and as advised on 7 February 2010, the owner of the site had not sold the property.  In late February 2010, he had moved back in. The height of the roof extension, as stated in the case report, had been revised from one metre to 2.2 metres after complaints from residents. That was evidence of bias and duplicity by officers. The light readings had been described as taken from a window that did not exist. Readings needed to be taken from all affected windows, with the results provided seven days before the committee. The extent of the light readings obtained indicated a lack of impartiality and corruption by officers. The Council had failed to explain why, despite assurances to the contrary, planning permission had been given for the roof terrace.

86. Mr A further said that: the head of planning had declared an interest in the site when the earlier application to alter the roof of the property to a flat roof had been made. When that application had been considered, officers had given written assurances to Members and residents that that the flat roof, if allowed, would not be permitted to be used as a roof terrace. Planning officers had recommended approval of a subsequent application for a roof terrace built unlawfully, with the application granted consent. The Council had not taken enforcement for two years after the glazed screen was removed and an enforcement notice upheld. The Council had accepted a new application for an extension of the roof, from an alleged new owner, when the building was still owned by the original owner. Officers had
made false statements and lied to the committee on two occasions, to try to get the development approved.

87. On 28 February 2010, the case report for the March committee on the re-submitted planning application for the site was signed off by officers. The report recommended approval of the application. On 2 March 2010, Members visited the site and Mr A's property.

The Planning Committee meeting on 3 March 2010

88. On 3 March 2010, the Planning Committee considered the re-submitted planning application. The case report noted the planning history of the site, including: the
retrospective permission of 2002 for the retention of the property as built, with the condition for the installation and retention of an obscure glazed screen to the north edge of the roof terrace; the breach of condition notice served after the screen had not been installed; the decision of July 2002 that the condition had been complied with; and the enforcement notice of 2007, upheld on appeal and remaining extant for the reinstatement of the screen.

89. It was further noted that the previous, withdrawn application for the roof extension and other works had been recommended for refusal because of the proposal to remove existing two-storey front bay windows and form floor-to-ceiling picture windows that were seen as excessive in scale and proportion and unsympathetic. Planning permission was sought for a single storey roof extension with a new steel and glass balustrade around the roof terrace. The intention to remove the front bay windows had been deleted from the scheme.

90. The report referred to the objections received to the impact of the development on the light, amenity and outlook of neighbouring properties, the complaint of alleged corruption and the request for the application not to be considered by Members until the allegation had been fully investigated and the extant enforcement notice complied with. The strategic director and city solicitor had written to the complainant about the allegation of corruption, having discussed the matter with the internal audit manager. It was not considered appropriate for the Council to investigate the claims made. Any evidence needed to be presented directly
to the Police as a potential criminal matter.

91. The determining issues were whether the alterations were acceptable in design terms and would preserve or enhance the character and appearance of the conservation area and if they would have a significant impact on nearby occupiers. The proposals were acceptable in design terms and would preserve the character and appearance of the conservation area and the setting of the adjoining grade II listed building. The roof extension would replace the existing roof terrace accessed by a hatch. The new feature would increase the use of the roof. But it was not considered that this would result in a significant adverse impact on
adjoining occupiers through a loss of privacy or increased overlooking.

92. Neither was it considered that the proposal would result in a significant loss of sunlight, daylight or outlook to adjoining dwellings, having regard to the impact of the roof extension on available light, the increased maximum height of the building to 10.4 metres facing the front of the site and 10.4 metres to the rear/north and the fact that the roof extension would be 2.2 metres higher than the existing flat roof. The reinstatement of the obscure glazed screen had been pursued. The outcome of the planning application would be awaited before further action was taken.

93. The Planning Committee resolved to grant planning permission for the roof extension and other works at the site, subject to a condition requiring the provision of an obscure glazed screen on the roof immediately prior to the commencement of development.

Events following the committee meeting

94. Also on 3 March 2010, Mr A stated to the Council that he intended to apply for a judicial review of the committee's decision to grant planning permission for the further development been erected that morning, but the panels had gaps in between. Neither was the screen of the height and width required by the enforcement notice. Users of the roof terrace could look directly into the bedrooms of immediately adjoining properties and onto his roof terrace.

at the site. He also requested that the Council inform the applicant that construction could not commence until the judicial review process had been completed.

95. On 4 March 2010, the applicant's agent confirmed that the owner would commence the approved development and install the glazed screen after the period for legal challenge had expired. On 5 March 2010, the planning permission was issued. A condition specified that immediately prior to the commencement of the approved development, an obscure glazed screen was to be installed in accordance with the permission and retained thereafter.

96. On 6 March 2010, Mr A asked for further details of sunlight and daylight testing.

MrA's further formal complaint of 7 March 2010

97. On 7 March 2010, Mr A put a further formal complaint that officers had failed to act on the instructions of the Planning Committee to pursue a prosecution. He asked for answers to questions on: the non-availability of the green supplementary sheet in the public gallery of the committee room on 3 March 2010; the non-availability to the public prior, to the committee meeting, of the annex on light loss calculations; the reason for the re-allocation of the case to another officer; why it had been stated to Members that light readings had been taken from a first floor window of his house when papers from the Council had shown that this was not the case; and why the head of development control had wrongly said that a decision by the Ombudsman had concerned the site.

98. On 8 March 2010, the Council sent Mr A the sunlight and daylight test results.

99. On 25 March 2010, the applicant's agent enclosed a drawing of a proposed obscure glazed screen, in three panels, two metres high and two and a half metres wide. The agent asked if the design was acceptable to the Council, so that it could be fabricated and erected.

100. On 26 April 2010, Mr A complained that work had started on the roof of the site without the prior installation of the obscure glazed screen. On 29 April 2010, the chief executive stated that some works to the roof had begun, but work on the extension had yet to start.

The Council's response of 12 May 2010 to Mr A

101. On 12 May 2010, the chief executive stated to Mr A that an enforcement officer had revisited the site. The situation had not changed.  In the summer of 2008, the previous owner had said that he intended to sell the site. The Council believed that he was a person without the means to carry out the work required by the enforcement notice. The Council had reasonably delayed prosecution until a new owner had taken up occupation.

102. There had been no material change in the Council's position or interpretation of the height of the development. Members had visited the site and updated information on light readings had been given to the committee. Legal services had been instructed to pursue a prosecution and evidence was being examined. He acknowledged that Members had wrongly been advised that an Ombudsman's decision had related to the site.

The re-instatement of the obscure glazed screen

103. On 14 May 2010, an obscure glazed screen was re-fitted to the roof terrace at the site. Also on 14 May 2010, Mr A complained to the Council that a screen with three panels had

104. On 17 May 2010, Mr A stated that work had continued on the roof terrace where the approved extension was to be situated. The Council had not responded to his report of breaches of planning control.

105. On 18 May 2010, the Council's chief executive commented that the gaps in the screen had not been shown on the original drawing, but the design was considered acceptable. The Council did not consider it expedient to take enforcement action in relation to the screen as built or the other works to the roof. By return, Mr A said that the Council had not addressed the issue of the height and length of the screen and the gaps defeated the object of preventing overlooking.

The consideration given to other works at the site

106. On 30 November 2010, Mr A asked the chief executive why work had begun to construct a room sized ground floor extension at the site without an apparent grant of planning permission. Mr A requested an immediate investigation.

107. On 9 December 2010, the assistant head of planning stated to Mr A that the work related to the construction of a small rear extension of a size that did not require planning permission. The work required building regulations approval and an application had been submitted. The work to date had been inspected and found satisfactory.

108. By return, Mr A asked why the structure did not need planning permission, given a further loss of light that would result to the properties nearest to the site.

109. On 13 December 2010, the assistant head of planning referred Mr A to the planning portal web site and nationally applying permitted development rights under the Town and Country Planning (General Permitted Development) Order, as amended, and that allowed certain works to be carried out without the need for planning permission.

110. On 15 December 2010, Mr A stated to the assistant head of planning that, following his research on the planning portal web site, there appeared to be no precedent for the further extension being built. He conjectured whether the Council may have deliberately reached an incorrect assessment of the need for planning permission.