Summary: Miss X complained about the finished height of new houses built in front of her home. She said this has removed the visual aspect she used to enjoy and has resulted in loss of light, loss of privacy, and a sense of enclosure. The Ombudsman did not find evidence of fault by the Council.

The complaint

1. Miss X complained about the finished height of new houses built in front of her home. She said:
• The applicant’s plans were misleading and did not give the planning committee the full picture about the impact.
• The applicant changed the position and design of the windows on the new houses, meaning they are directly opposite her house.
• The Council acknowledged there were breaches of planning permission, but it will not act.
• The Council cannot say what the height of the new houses should be.
2. Miss X said the height of the new houses has removed the visual aspect she used to enjoy and has resulted in loss of light, loss of privacy, and a sense of enclosure.

Back to top

What I have investigated

3. I have investigated Miss X’s complaint that the new houses were not built in accordance with plans.
4. I have not investigated the planning committee’s original decision to grant planning permission. The Ombudsman has already investigated that decision.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’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)

Back to top

How I considered this complaint

7. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning Act 1990.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Guidance and legislation

9. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is needed for any development or change of use of land and may be granted by a Local Planning Authority.
10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations suggest they should not.
11. When the Council considers a planning application it must consider the impact a development will have on nearby properties. A Council can only consider 'material planning considerations' when looking at planning applications. The most common of these considerations are:
• Local and national planning policies
• Planning history of the site
• Overlooking and overshadowing
• Visual amenity (but not loss of private view)
12. The Council cannot consider matters which are sometimes raised but are not normally planning considerations such as:
• The perceived loss of property value
• Private disputes between neighbours
• The loss of a view.
13. When considering complaints about planning applications, we look for evidence the Council followed a proper process before making its decision. We expect to see evidence the Council has identified the material planning considerations raised by the application and properly considered them.
14. In deciding an application, councils must consider what people say about the proposals, but they do not have to agree with them.
15. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application. The Ombudsman will not come to a view on the merits of the planning application. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission.
16. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made. We cannot question the merits of the decision the Council has made or offer any opinion on whether we agree with the judgment of the Council’s officers.

Non-material Amendment Applications

17. Where planning permission is granted, it is sometimes necessary to make changes. Planning authorities may grant such an application and amend the original approval without the need to begin the planning process again, providing:
• It considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity to make representations they might want to make; and
• The nature of the application remains the same, i.e. the amended proposal is still substantially the same as the original.
18. Councils may also decide that some very minor changes are ‘de minimis’ and can be accepted without requiring a non-material amendment.

Planning Enforcement

19. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. This means councils can decide whether not it is ‘expedient’ (worth) enforcing a breach, having regard to its particular circumstances and potential impact on amenity.
20. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
21. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is ‘expedient’ to do so under s.172 of the Act. It is for the planning authority to decide whether it is ‘expedient’ to take action.
22. The Council has the power to take a range of actions, but it has no duty to do anything more than consider the position. If the breach is trivial, no action would be proper. The key issue is whether the alleged breach of control “would unacceptably affect public amenity or the existing use of land or buildings meriting protection in the public interest.”
23. Government policy in the National Planning Policy Framework says councils should “act proportionately” in responding to possible breaches. The Government’s Planning Practice Guidance also refers to “proportionate” council enforcement action.

What happened

24. I have detailed below some of the key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
25. The Council received an application for permission to build new homes on land in front of and near to Miss X’s home. The planning committee granted planning permission for the new development.
26. Miss X was unhappy about the impact the new homes would have on her outlook. She considered the development would be oppressive and block sunlight to her home, as well as causing a loss of privacy. She complained the Council did not consider these issues properly. I have not investigated the decision to grant planning permission, as it was previously investigated by the Ombudsman in 2018.
27. The new homes are now built, and Miss X considers the developer has breached their planning permission. She said the developer built new homes higher than planned, with an altered internal layout, different windows, and different coloured brickwork. She said this resulted in reduced light to her home and loss of privacy.
28. Miss X said construction workers on site told her the height of the new homes should not be greater than 120mm above the lowest aperture of the existing houses. However, they were built higher than originally planned.
29. Miss X raised this at a local residents meeting on 13 November 2019. She said the lowest aperture of her house was her front door. The construction company’s project manager told Miss X the plans had not changed, and the final height would not exceed the 120mm previously stated.
30. The developer wrote to Miss X on 18 December to clarify the intended height of the new homes it built. It gave Miss X copies of street elevations which it said showed it built the homes in line with plans. It said the homes in front of Miss X follow the gradient of the hill, so are at different heights. However, the parapet of the highest building is about level with the top of Miss X’s bay window. It also attached a daylight-sunlight report confirming residents would continue to enjoy enough light.
31. Miss X complained to the Council about breaches of planning control by the developer. She was supported by her local councillor. She was unhappy the Council agreed to let the developer make changes without making a new planning application.
32. The Council’s Head of Planning met Miss X on site in February 2020 to discuss the issues and to assess the development. After the meeting, the Head of Planning wrote to Miss X’s local councillor with his findings. He said:
• The plans clearly show the height of the new houses being equivalent to the ground floor living rooms of the existing houses behind.
• His visit confirmed this relationship, and he was satisfied the developer built the houses as planned.
• Miss X will continue to receive enough sunlight and daylight, and a reasonably open outlook.
• He saw no evidence the building materials (brick colour) changed significantly from the plans. Additionally, officers can make delegated decisions about choice of materials.
• The developer used non-material amendment applications to make some changes after receiving planning permission. The Council does not consult on them, and it is up to the Council to decide what constitutes non-material.
• The developer made a non-material amendment application to change the internal layout and vary the window openings slightly. These changes did not affect the previously stated position about overlooking.
• It appeared the flank elevation of the end semi-detached pair of new houses is slightly closer to the flank elevation of the neighbouring house compared to the approved plans. However, he found it hard to accept this harmed the amenity of neighbouring houses. A reasonable gap between the houses remains and the slightly narrower gap would not result in any significant loss of sunlight. This would not have been a sustainable reason to refuse planning permission.
• The Council properly considered the relationship between the new houses and existing houses was at the planning application stage and when considering amendments to the scheme.
33. Miss X complained to the Council on 18 May 2020. She was not happy with the response the Council’s head of planning sent to their local councillor, which gave Miss X no opportunity to reply. In Miss X’s view, the final heights of the new houses are greater than planned. She said this created an overbearing, dominant effect. She asked the Council to review the planning application and raised the following points:
• The planning committee only saw one small linear view of the development, not details of each plot.
• She was consistently told the finished height of the houses would not be more than 120mm above the bottom of her door. This is not what the developer has achieved.
• She recognised there is no right to a view in planning but said the chair of the planning committee used it as an argument in summing up.
• Her right to full free access to light and air is impeded by the dark high blocks directly in front of her home. The open air and green space previously enjoyed is gone.
• The head of planning accepted it may have been helpful to see a section through Miss X’s house to provide clarity on the height relationship between her house and the new ones.
• The cross-sectional drawings given to the planning committee are misleading, showing the new house to be at a lower ground level relative to her house.
• Construction workers on site told her the developer changed the heights from the original plans.
• The original approved plans show orange/yellow bricks. The developer later changed them to red/purple, reducing the light.
• The approved plans show small square windows, which are less intrusive, and in internal layout with a kitchen at the rear. The developer later changed this to a living room at the rear and large rectangular windows, impacting her privacy.
• The changes made by the applicant make the development very different to what the planning committee approved.
• Another resident complained the developer built one of the houses too close to them. The Head of Planning agreed.
34. The Council’s new Head of Planning responded to Miss X’s complaint on 27 October 2020. They said they saw no reason to disagree with the advice given by the previous Head of Planning. They made the following points:
• Planning committee members see the full plans 5 days in advance, including all online material. The officer’s report to the committee is to supplement this. The previous Head of Planning confirmed officers did not mislead the committee.
• The design and access statement documents Miss X referred to are an aid to decision-making, helping the Council understand the development, they do not form part of the planning permission.
• The development must accord with the approved drawings on the planning decision notice. As confirmed by the previous Head of Planning, the Council is satisfied the heights of the new houses accords with the approved drawings. The Council also reviewed more detailed elevations, which confirmed the developer built the houses in line with approved heights.
• The planning officer who prepared a report for the planning committee considered the impact on Miss X’s house. The developer also carried out a daylight and sunlight assessment. The officer appreciated there was a change to the setting of Miss X’s house but found the impact to be acceptable.
• There was no failure in not having a cross section drawing of Miss X’s house. The applicant had several plans and drawings including some cross sections and street scene elevations. This was more than enough to decide the application.
• The planning committee saw the proposed street elevations, as well as cross sections of the new houses relative to Miss X’s neighbour’s house.
• The Council cannot comment on statements made by construction workers. However, the site was the subject of an enforcement investigation and a detailed site visit which did not identify any breaches.
• When the plans received planning permission this included a condition about external facing materials. Any details in the plans about external materials was therefore illustrative only, with final details to be confirmed by officers later. While the brick is slightly different from the design and access statement the Council still considered it was acceptable and in line with the character of the area. The Council does not consider a change in brick colour to be a material change.
• The change to the windows is within the scope of the non-material amendment process and would not need a further application.
• There is no statutory definition of ‘non-material’. The non-material applications made in this case do not result in fundamental or substantial differences to the original application.
• When an applicant does not build a development to plan, the Council has discretion on whether to take enforcement action. In this case the Head of Planning considered the relationship between the houses to be acceptable and it was not expedient to take enforcement action.
35. Miss X asked the Council to escalate her complaint to stage two on 17 November. She was not satisfied with the answers given. She said the Council decided the height of the new houses is acceptable just on the say so of officers. She also said the Council accepted the developer did not build the houses to plan.
36. The Council sent its final response on 11 December 2020. It said the Ombudsman investigated some of Miss X’s points in 2018 and the Council would not re-investigate. It said:
• Miss X is entitled to her view the planning committee may not have read all application documents, but the Council disagreed.
• The Ombudsman found no fault in the way the planning committee made its decision.
• It is necessary to consider planning application documents as a whole, and there are street elevations showing the height of the buildings relative to the street scene including Miss X’s neighbour’s house.
• It saw no reason to disagree with the stage one finding that the new houses were built in accordance with approved drawings.
• The planning officer’s report from 2017 considered the distance between the existing houses and the new ones was to be not less than 16 metres. They did not consider this would materially affect the outlook and the difference in levels would limit any loss of light and overlooking.
• The separation distance of 18 metres which Miss X referred to was brought in by the Council two years after this application was determined. The Council considered the relationship in this case was acceptable even if the guidance at the time recommended an 18 metre gap, due to the difference in levels.
• The Council should not take enforcement action just because a breach has occurred. It must consider if it would be expedient. The head of planning considered the relationship between the houses is acceptable.
• Legislation and guidance do not say what a fundamental change would be, as all applications are different. The Council found the applicant’s changes in this case were within the scope of the non-material amendment process and did not require another application.
• The Council accepts there will be some impact on Miss X’s outlook and light, but not so significant to warrant refusing planning permission.
37. Miss X brought her complaint to the Ombudsman on 13 January 2021.

Response to my enquiries

38. The Council told me Miss X’s assertion that its Head of Planning agreed the developer build the new houses too high contradicts what he wrote in an email to a local councillor shortly after the visit. The Head of Planning has left the Council, so it could not obtain a statement from him.
39. The Council was unaware of anyone telling Miss X the roof height of the new houses would not be more than 120mm higher than the bottom of her front door. It said the plans showed the top of the new houses would be about at the height of the top of the ground floor level of Miss X’s home.
40. The Council said it has not surveyed the site, so it cannot say exactly what the finished height of the new houses is. It said it must spend its funds correctly. As above, it said the development was never intended to be 120mm above the bottom of Miss X’s front door.
41. The Council confirmed the finished height, and impact of, the new homes is in line with what it expected when it granted planning permission.

Back to top

Analysis

Non-material amendments

42. The developer made non-material amendment applications for permission to change the colour of the brickwork, the interior layout, and the design of the windows on the new houses in front of Miss X.
43. Relevant case law on further consultation (see R (Holborn Studios Ltd) v Hackney LBC [2017], R (Wandsworth LBC) v Secretary of State for Transport [2005] and Smith v East Kent Hospital NHS Trust [2002]) is clear that local planning authorities need to consider, on a case-by-case basis, the nature and extent of the difference between what was originally consulted on and the amended proposal they intend to grant when deciding whether fairness dictates there should be further consultation.
44. If an amendment is de minimis or minor and any further representations are unlikely to differ substantively from those already made, and the final development is a foreseeable result of the original consultation process, then councils will be justified in deciding not to reconsult on the basis that fairness does not dictate it is required.
45. Miss X had already commented on the plans, including specifically commenting on overlooking and privacy.
46. The Council did not consider the changes were material. As the Council told Ms X, material changes are not defined. It is up to the Council, using its professional judgment, to decide.
47. The Council also considered the changes would not cause a significantly different or worse impact on neighbouring amenity than it had already considered at the initial application stage.
48. I have not seen evidence of fault by the Council in deciding the impact of the changes was not material, or for not reconsulting on the non-material amendment applications.

Planning enforcement

49. Miss X said she was assured the new houses directly in front of her would not be greater than 120mm above the bottom of her front door. She also said the final build height should not exceed the height of the bottom of the lowest aperture of the existing building. Miss X said in this case that was her front door.
50. I have seen the drawings and plans which formed the planning application. I have also seen images of the built new houses and their relationship to Miss X’s home.
51. I have not seen any evidence showing the roof height of the new houses was planned to be 120mm above the height of Miss X’s front door. None of the plans, drawings, or reports I have seen state any figures or height measurements relative to neighbouring houses.
52. While I appreciate it appears the constructions company’s project manager gave Miss X assurances about the height of the new houses at a resident’s meeting, I do not know the context of their comments. Additionally, the Council did not make any such assurances. I also note that when Miss X wrote to the developer it did not give measurements for what the height of the new homes should be.
53. Miss X said the new houses should not be higher than her front aperture. She considered the relevant aperture was her front door. The Council does not share that view. It said it was Miss X’s ground floor bay window.
54. When local planning authorities consider whether a new development blocks light to an existing development they look at windows benefitting from a right to light.
55. The Council’s position is supported by the developer’s letter which refers to the height of the new houses being at about the same height as the top of Miss X’s bay window.
56. The drawings submitted by the developer shows the roofline of the new semi-detached houses directly in front of Miss X’s to sit at about the same height as the top of the ground floor windows of existing houses. The images I have seen of the finished new houses suggests this is in line with what has been achieved.
57. Based on this evidence, I do not consider it was fault by the Council to say the new houses were built to plan.
58. As to whether the relationship between Miss X’s home and the new houses negatively impacts Miss X’s amenity, that is a matter of professional judgment for the planning officers involved. It was the view of the officers who determined the application that, although there is an impact, the harm was not enough to warrant refusal. That was the decision reached by the planning committee.
59. This view was shared by the Council’s former Head of Planning, who visited Miss X’s house to assess the impact once the new houses were built.
60. Miss X said the Council’s former Head of Planning agreed the new houses were built too high. However, his email to a local councillor after the site visit and assessment confirms that was not his view.
61. I have not seen evidence of fault in the way the Council reached its decision. Nor have I seen evidence of any obvious detrimental impact on Miss X over and above what planning officers assessed.
62. It is not my role to re-consider the planning application and come to my own view on its merits. The impact was considered by planning officers and the planning committee. They were entitled to their professional view about the relationship and the impact on Miss X’s amenity.
63. The Council’s former Head of Planning acknowledged there may have been a small breach of planning permission by the developer, in terms of the size of the gap between some of the houses. However, the Council did not consider this resulted in any harmful impact on neighbouring amenity.
64. A breach of planning control is a mistake by the applicant, not fault by the Council. The Council does not have to take enforcement action if it does not consider it would be proportionate to do so. In this case, it decided no harm was caused by the possible breach, so enforcement action was not necessary. That was a merits decision and I have not seen evidence of fault.
65. The Council has not confirmed the finished height of the new houses. It does not consider it a reasonable use of public money to pay for a survey. Given the Council considers the new houses have been built in accordance with plans and have not caused any added detrimental impact to neighbouring amenity (over and above what officers first assessed), I do not consider the Council is at fault for not doing so.

Back to top

Final decision

66. I have completed my investigation. The Ombudsman did not find evidence of fault by the Council.

Back to top

Parts of the complaint that I did not investigate

67. As per paragraph 4 above, I have not investigated the planning committee’s original decision to grant planning permission.

Back to top

Investigator's decision on behalf of the Ombudsman