Summary: Mr X complained about how the Council handled his report of a breach of planning on land behind his property. We have found the Council at fault for a delayed and inadequate investigation resulting in the new development overlooking Mr X’s property. The Council has agreed to take action to remedy Mr X’s injustice.

The complaint

1. Mr X complained about how the Council dealt with a breach of planning control. He said the development to the rear of his property has increased the land levels and therefore the houses are much higher than originally given planning permission for. He said it has caused him loss of privacy. He said the Council has not considered the breach properly and has not taken action against the developer.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered Mr X’s complaint and have spoken to him about it.
5. I have also considered the Coucnl’s response to Mr X and to my enquiries.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation

Increase in land levels

7. Any significant increase in ground levels would normally require planning permission. Under permitted development rights, you may increase levels by up to 30cm. Enforcement of any land raising over 30cm without planning permission would be at the discretion of the local planning authority.

Planning enforcement

8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
11. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)
12. Section 73 of the Town and Country Planning Act 1990 allows applications to be made for permission to develop without complying with a condition previously imposed on a planning permission.

What happened

13. In 2019, the Council approved a planning application for 453 houses on land to the rear of Mr X’s property. In June 2020, when the development commenced on site, Mr X said he noticed the height of the land had been increased by approximately 1m. He raised his concerns with the Council.
14. The Council said the developer confirmed that the land levels had been altered. The developer went on the says that as the decision notice did not reference land height, there was no breach.
15. In September 2022, the Council commissioned a topographical survey as part of its investigation in land levels. This concluded that overall, the land had been raised by 50cm (20cm at the lowest and 70cm at the highest point).
16. After the Council assessed the topographical survey, it concluded that no enforcement action could be taken as the planning permission did not contain a condition regarding levels.
17. Between March and July 2023, the Council was in contact with the developer. The Council informed the developer that they were in fact in breach of planning control and the raising of land levels required a Section 73 application. The Council suggested that the developer erect higher fences and pay for work already done by residents as mitigation for the breach, or the alternative would be to reduce the height of the land the houses are built on.
18. The developer agreed to increase the height of the boundary fencing between the new development and the existing houses. The developer specifically identified that the fencing to the rear of Mr X’s garden was too low and suggested they added trellis to give Mr X sufficient privacy. This work was continuing when Mr X brought his complaint to us.

My findings

Delay establishing breach

19. The Council was at fault for telling Mr X that it could not take enforcement action against the developer because no breach had occurred. A breach had occurred.
20. The Council confirmed that once a senior manager became involved in the case, they established there had been a breach of planning control. They began negotiations with the developer with the aim of remedying the situation.

Enforcement action

21. I questioned why the Council did not take enforcement action against the developer. The Council said that the developer did not agree that a breach had occurred. However, the Council and the developer agreed that rather than spend time defending their respective cases, they would work together to look at mitigation for those existing properties affected by the unauthorised rising of site levels.
22. Given that enforcement action is discretionary, I cannot question the Council’s decision to negotiate with the developer rather than take more informal action.

Level of injustice

23. The Council delayed establishing that there had been a breach of planning control. I cannot say with certainty that if the Council had involved senior parties when Mr X first raised the issue in 2020, the outcome of this matter would have been any different.
24. There were always going to be new houses developed behind Mr X’s property. These houses are now higher than those approved. The Council has negotiated with the developer to increase the heights of the fences between the existing and new development. I have also seen evidence that the developer agreed to add privacy trellis to the top of the fence to the ear of Mr X’s property.
25. While the fence would mitigate the overlooking element that Mr X complains about, it means Mr X is left with a nearly 3m fence towering at the end of his garden. Had it not been for the fault, the fence would have only needed to be 2m to provide adequate screening.
26. The Council has agreed to pay Mr X a sum of money to use as he sees fit towards the cost of planting mature screening trees or hedges in his garden. This should soften the boundary treatment and provide a more attractive backdrop to his garden in the short term. In the longer term, it should increase the level of privacy enjoyed in Mr X’s property.

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Agreed action

27. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mr X for delays to its enforcement investigation.
2. Pay Mr X £1000 for to use as he sees fit towards screening plants/trees to mitigate the impact of the raised ground levels.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I have found the Council at fault for how it investigated and reached a conclusion on Mr X’s report of a breach of planning.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman