The Ombudsman's final decision:
Summary: Mr X complains the Council has failed to protect or enhance the character and appearance of a conservation area near his home. He says this happened because it failed to put in place an updated local development scheme or plan which led to the approval of a planning application for a residential dwelling in the area. He also complains the Council has failed to take enforcement action after the dwelling was built higher than the level shown on the approved plans. Moreover, he complains about the way the Council handled his complaint about these matters. The Ombudsman has found the Council was at fault for not ensuring it had sufficient information about the base height of the dwelling before it decided to grant planning permission. However, we have not found fault in relation to any other part of Mr X’s complaint. The fault we identified did not cause him or his neighbours any significant injustice that requires remedial action. However, we have made a service improvement recommendation to the Council to prevent this fault from reoccurring, which it accepts.
What I have investigated
- I have investigated the way the Council considered the planning applications made by Mr X’s neighbour for a residential dwelling, rather than the adequacy of its local development scheme or plan. Regarding the other aspects of Mr X’s complaint, I have investigated these as reported.
The Ombudsman’s role and powers
- 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)
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
How I considered this complaint
- I have:
- Read Mr X’s complaint and the documents he submitted in support of it.
- Considered the Council’s comments about the complaint and the supporting documents it provided.
- Provided both parties with an opportunity to comment on the draft decision and considered the comments that were made.
What I found
- Planning permission is required for the development of land (including its material change of use) and may be granted subject to conditions relating to the development and use of land.
- All decisions on planning applications must be made in accordance with the local authority’s development plan, unless material planning considerations indicate otherwise. These considerations include issues such as: local, national and strategic planning policies; emerging new plans; impact on neighbouring amenity; potentially adverse impacts on nature conservation; and loss of trees.
- Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
- Where a local development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
- General planning policies may pull in different directions (for example, in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
- The purpose of the planning system is to contribute to the achievement of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs.
Plans and drawings
- The National Planning Policy Guidance states that applications, at a minimum, must contain a location plan which shows the proposed site in relation to the surrounding area. It says that additional plans and drawings will be required in most cases and it is up to local authorities to determine these requirements. It also states:
“Any plans or drawings must be drawn to an identified scale, and in the case of plans, must show the direction of north. Although not a requirement of legislation, the inclusion of a linear scale bar is also useful, particularly in the case of electronic submissions.”
- Guidance issued by St Albans City Council states that plans or drawings which are “necessary to describe the development which is the subject of the application” should be submitted. It adds that site section or level plans, floor plans, and plans containing elevations submitted should be at a scale of 1:50 or 1:100.
- Local authorities can take enforcement action if they find planning rules have been breached. However, they should not take enforcement action just because there has been a breach of planning control. The National Planning Policy Framework 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.”
- In May 2016, Mr X’s neighbour submitted a planning application to the Council proposing to build a four-bedroom dwelling. The application was withdrawn a month later.
- In December 2016, Mr X’s neighbour submitted a new, revised application. The design and access statement submitted in support of the application noted the previous application had been withdrawn at the suggestion of the planning officer, who advised that several design amendments were necessary. These amendments included the removal of loft rooms to reduce the height of the building, and the statement asserted that the new ridge height was comparable with the neighbouring buildings. In support of the application, the applicant submitted: a block plan; a plan showing the front, rear and side elevations; floor plans; a roof plan; and a site plan. This latter plan, or drawing, was drawn at a scale of 1:200 and it contained a proposed street scene drawing.
- In mid-April 2017, one of the Council’s planning officers decided to grant planning permission to the proposal, subject to a number of conditions. The officer concluded the principle of residential development was acceptable and the proposal was compatible with the scale and character of the street scene and conservation area. Seventeen conditions were imposed, including requirements to: adhere to the plans which had been approved; not commence development until a method statement for the protection of trees had been submitted and approved; and submit further details on landscaping stipulating the dimensions of the trees which should be planted.
- In mid-July 2017, Mr X’s neighbour submitted an application to the Council seeking approval to discharge five of the conditions that were attached to the permission. At the beginning of September 2017, it decided the application and discharged three of the conditions. The two conditions it did not discharge related to the submission of the protection of trees method statement, and the requirement to provide further details about proposed landscaping at the site.
- At the end of September 2017, Mr X’s neighbour submitted another planning application to the Council which sought material changes to the permission it had granted. On the advice of one of it’s planning officers, this application requested the removal of the conditions that were not discharged earlier that month. The applicant also sought to: amend the block plan showing the proposed tree layout; remove a report about the impact on trees; remove the design and access statement from the list of approved plans; and include a new method statement for tree protection. In support of the application, a revised plan showing the elevations and proposed street scene was submitted.
- The application was approved by the Council’s Planning Committee at the end of January 2018, subject to 13 conditions. It concluded the principle of residential development was acceptable and the proposal was compatible with the scale and character of the street scene and conservation area.
- In relation to the requested amendments, the committee’s report noted that one of the plans initially approved did not accord with the landscaping plans, as did some of the detail in the tree protection report. Similarly, it was reported that some of the conditions that were imposed did not accord with the condition requiring adherence to the plans that were approved. Therefore, to address these issues the report noted the applicant had amended the block plan so it accorded with the landscaping plan and submitted a tree protection plan, which was deemed acceptable by the landscape officer.
- At the beginning of March 2018, Mr X complained to the Council about these matters. Specifically, he complained it had failed to maintain an up-to-date local plan and this had led it to granting his neighbour planning permission. Similarly, he complained about the way the Council had handled his neighbour’s planning applications and stated it had failed to protect or enhance the amenity value of a local conservation area by granting planning permission. In relation to the way the applications were handled, he said the Council’s Planning department failed to advise local residents of the relevant processes and it should not have taken the initial decision to grant planning permission, asserting this decision should have been taken by the Planning Committee instead.
- Toward the end of the month the Council responded to Mr X’s complaint, which it did not uphold. It discussed the issues surrounding its local plan but it did not agree this led to its officers being pressurised into approving applications that would otherwise be rejected. It also disagreed that the approval of his neighbour’s application meant it had failed to protect or enhance the conservation area, highlighting it had approved similar applications and that its decisions were based on its plan and any material planning considerations, not the number of objections it received in response to a proposal.
- It also stated it was not the duty of officers to explain the planning process to residents, although it explained the officer in this case would have done so if asked. It also noted previous correspondence it had sent had directed him to the part of its website which provides details of the decision-making process. In addition, it explained the history of the various planning applications in the case, and stated the proposal was brought to the Planning Committee because the conditions attached to the permission conflicted with the landscape plan that was submitted. In conclusion, it did not uphold any part of Mr X’s complaint.
- At the end of April 2018, Mr X emailed the Council to escalate his complaint. He complained his concerns had been investigated by the Planning Service and felt they should have been considered by the Council’s Monitoring Officer. He reiterated that he felt the lack of an up-to-date local plan had adversely affected the decision and pointed out the Planning Committee did not review the whole proposal, which he said was asserted in the Council’s stage one response, and highlighted it merely considered the removal of the selected conditions.
- In mid-May 2018, the Council responded to Mr X’s stage two complaint, which it did not uphold. Regarding its complaint handling, it highlighted its Policy stipulated that officers at various levels in the Service concerned were required to investigate and respond, pointing out the Monitoring Officer only dealt with complaints about councillors. In relation to the conservation area issue, it said this did not prohibit development and noted that new housing was being built in similar areas across the district. Similarly, it stated the principle of residential development on the site was considered acceptable and complied with its local plan, legislation, and the National Planning Policy Framework. It accepted the point Mr X made about the matters that were considered by the Planning Committee, but said this did not mean the original decision itself was wrong.
- At the beginning of July 2018, Mr X wrote to the Council on behalf of himself and seven of his neighbours. He said several breaches of planning permission had occurred at the site, stating the dwelling was being built higher and wider than indicated on the approved plans. He referred to an investigation the Council had recently undertaken and disagreed with its assertion the street scene drawing which had been approved was “for illustrative purposes only” and “not drawn to scale”. He provided measurements he had taken and concluded there had been a significant overbuild at the site. He also said the Council had failed to address the concerns raised about the building width.
- In summary, he said the overbuild would have a considerable impact on the amenity value of the street scene and it was the duty of the Council to protect and enhance the amenity value of the conservation area. He asked it to stop the building work and take steps to ensure the planning permission and attached conditions were adhered to.
- In the period that followed, the Council investigated the concerns raised by Mr X and his neighbours. It visited the site in mid-July then concluded it was satisfied there was no breach of planning control. It said the height of the dwelling accorded with the approved elevations plan, adding the street scene drawing was illustrative only and it was not clear whether the height of the adjacent buildings on this drawing were correct or to scale.
- The Council then exchanged a large amount correspondence with Mr X, his neighbours, and several councillors he had previously contacted about these matters.
- Toward the end of August 2018, Mr X emailed the Council and stated he had not received a response to the stage two complaint he made at the end of April. The Council responded the same day and stated it had sent a response to him via email in mid-May, which it provided for reference.
- Later that same day, Mr X submitted a new complaint to the Council about the way it’s Planning Enforcement Team had dealt with his and his neighbours’ concerns. Specifically, he said it had failed to confirm whether the development complied with measurements on the approved block plans and questioned its assertion the street scene drawing was for illustrative purposes only. In addition, he said it had failed to deal with a breach relating to the erection of a parapet wall following its site visit in mid-July, and the Council had failed to ensure a site level plan was submitted with the initial planning application, despite its local procedures requiring this. To remedy the situation, he asked the Council to issue a temporary stop notice so it could take remedial action.
- In mid-September 2018, the Council responded to Mr X’s complaint. It stated that measurements had been taken during the site visit in mid-July and both the height and width were in accordance with the approved plans. Regarding the street scene drawing, it said this was “generally only illustrative” and not a requirement on its validation checklist, although it asserted the drawing in this case was to scale. It added that site level plans were not a requirement for every planning application and highlighted it would be exceeding its powers to request one for every application. In relation to the parapet wall, it said it was impossible to measure this at the time of the site visit but a photo taken on the day indicated the wall did not appear to be “huge and overbearing”.
- In summary, it accepted the street scene drawing was misleading but asserted the build complied with the dimensions in the approved plans. Consequently, it stated there had been no breach of planning control, although it stated it would undertake another site visit to ensure continued compliance.
- At the end of the month, Mr X wrote to the Council to escalate his complaint. He said it had failed to ensure site level plans or a datum point were submitted with the application and the only point of reference for assessing the dwelling in relation to neighbouring buildings was the street scene drawing. He said this was important as the street was on a steep hill and the drawing indicated the dwelling should be lower than it was. Likewise, he said the drawing indicated the builder should have excavated down to ensure the height relative to the neighbouring building was met, however he said this did not happen and the dwelling was built from a higher starting position.
- In addition, Mr X stated the dwelling’s chimney stack was larger than it should be and disagreed with the Council’s decision this only constituted a minor beach and did not require enforcement action. He reiterated his concerns about the adequacy of the plans that had been submitted, questioning how the Council could assess the height of the dwelling and decide whether to take enforcement, if it considered the street scene drawing as being merely illustrative. Again, he asked the Council to issue a temporary stop notice and take remedial action.
- By this point, Mr X had complained to the Ombudsman about some of these matters. He then proposed a meeting with the Council in an attempt to resolve his concerns out with the complaints procedure. This meeting took place at the beginning of December 2018.
- In the middle of the month, the Council responded in writing to Mr X’s stage two complaint and referred to the meeting that had taken place. It stated it had compared the street scene drawing against the elevation plans and found some small differences, but asserted the former was largely to scale. Regarding the height of the dwelling, it said it had surveyed the neighbouring properties and found the dwelling was in line with these other properties. It did accept the height of the dwelling was approximately 0.2 to 0.3 metres higher than indicated on the street scene drawing, but decided this constituted a minor breach of planning control and thus did not warrant enforcement. It stated it reached this conclusion after visiting the site and finding the breach did not have any significant impact on the neighbouring amenities.
- In relation to the height of the ground, it said it had not found any increase in the ground floor level during its visits. In addition, it stated it had measured the base level of the house and the figure it had obtained was slightly lower than the figure quoted on one of the plans that was submitted with planning application it had received at the beginning of July 2017. Furthermore, it said it could not find any:
“… reference within the applications to indicate that the ground levels would be excavated down to a new lower level below the former ground floor level apart from the proposed street scene. Based on the ‘proposed street scene’ the base level of the house would be approximately 0.5m below pavement level.”
- It subsequently discussed the street scene drawing in more detail and accepted that it had not been helpful. Consequently, it said:
“We have discussed this issue at one of our regular Development Management meetings and for future applications for new dwellings with properties on either side, we will request confirmation of the scale of street scenes and earlier details of proposed levels. However, if they are not forthcoming we cannot insist on them as they are not a national requirement. If a street scene picture cannot be confirmed as accurate, we will ensure that it is not included on the approved plans.”
- When addressing the other points made by Mr X, it reiterated the breach caused by the chimney stack was minor therefore it would not take enforcement action. Conversely, it highlighted it had visited the site in October and breaches it had identified in relation to the parapet wall and roof flues had been enforced. Consequently, it stated there were no significant breaches of planning control that were outstanding, meaning it did not need to take any remedial action.
- In his complaint to the Ombudsman, Mr X states the Council should have had an updated local plan in place offering guidance on garden development in conservation areas, and his neighbour’s application should not have been approved. Additionally, he says the Council failed to ensure an adequate site level plan or drawing was put in place before granting planning permission, and states that national guidance stipulates this should happen. Moreover, he says it did not adequately explain why it would not take enforcement action despite accepting that the street scene drawing it approved was not merely for illustrative purposes.
- He states the dwelling is approximately one to two metres higher than it should be and is significantly overbearing when viewed from his kitchen and front bedrooms. Consequently, he says this has resulted in a loss of amenity value to his property. He also says the Council’s failures have degraded the character and amenity value of the conservation area.
- To address these failings, he wants the Council to issue a temporary stop notice so all work on the dwelling is halted. Following this, he wants the Council to investigate the matter and confirm whether the drawing submitted by the applicant was wrong or whether the dwelling was not built according to this drawing. He also wants it to apologise to him, acknowledge its failures, and make service improvements to ensure these failures do not reoccur.
- Mr X’s complaint can essentially be divided into three parts: the first is about the way the Council considered his neighbour’s planning applications; the second is about the way it responded to the alleged breaches of planning control; and the final part concerns the way the Council handled his complaints about these matters. Consequently, I will deal with each part in turn.
The Council’s consideration of the planning applications and its decision to grant planning permission
- This part of Mr X’s complaint predominantly concerns the adequacy of the plans considered by the Council before it granted planning permission, and its decision to allow development in a conservation area. Regarding the latter point, the report written by the case officer who decided the first application in April 2017 clearly discusses the impact of the proposal on the conservation area. The officer concluded the principle of residential development was acceptable and imposed several conditions to protect the character and visual amenity of the area. Therefore, as the officer took all the relevant material planning considerations into account before making her decision, I cannot find the Council was at fault in relation to this specific aspect of Mr X’s complaint.
- I understand Mr X states the Council’s local plan was out-of-date and this affected the decision, but in these circumstances the National Planning Policy Framework states that applications should be determined in accordance with a ‘presumption in favour of sustainable development’. The Council did this and concluded the relevant material planning conditions did not affect this presumption to the extent that permission should be denied. I understand Mr X disagrees with this decision, but case law has shown that it is for local planning authorities to decide the amount of weight given to material planning considerations. Therefore, in this case I could only find the Council was at fault if it failed to consider the impact on the conservation area, which it did not.
- Following the Council’s decision, I see the applicant submitted a revised arboriculture report at the end of May 2017 in response to some of the conditions attached to the permission. Then, in July 2017 the applicant submitted some landscape plans in support of their application to discharge some of the conditions. Whilst considering this application, the Council discovered that one of the plans initially approved no longer accorded with the landscaping plans that had been submitted, and the submission of these plans had impacted upon some of the conditions attached to the permission. Consequently, it decided material amendments were needed to amend this situation and subsequently advised the applicant to submit a new, material planning application. The application was subsequently ‘called-in’ by a councillor, meaning it was decided by the Planning Committee rather than a planning officer. The councillor made this decision so full consideration could be given to the impact of the changes on the conservation area.
- Again, I cannot find the Council was at fault given what happened. When the applicant submitted revised landscaping plans, it decided a further material planning application was needed meaning the development faced fresh scrutiny. There is nothing wrong with this. The Planning Committee then provided this scrutiny and its report shows that all the relevant material planning considerations were taken into account. In addition, the Council’s Landscape Officer was involved throughout this process and provided specialist input when required.
- Turning to the plans that were submitted in support of the first application, Mr X is correct in asserting the street scene drawing was the only plan included which showed the development, at the elevation level, in relation to its neighbouring properties. I do not agree with the Council’s assertion that this drawing or plan was submitted for “illustrative purposes only”, as it contains a scale and is included on an architectural drawing with other scaled plans. If it was intended to be illustrative only, this should have been clearly marked on the drawing. However, it was not, therefore the Council should have fully considered the drawing alongside the other plans and information that had been submitted.
- I note that at the time, the Council did not have any concerns about the standard of the drawing given the application was validated. The key consideration therefore is whether the information it had was sufficient to enable it to decide the application, which it did in April 2017. The complaint response it sent Mr X in mid-December 2018 indicates this was not the case. Its response referred to a base level quoted on one of the plans the applicant submitted in July 2017, however this information was provided at the time the discharge of conditions application was made, not in support of the original application. I have reviewed the original application in detail and there is no reference anywhere to the exact base level at which the construction of the dwelling would start. The case officer did accept the eaves of the dwelling “would be higher than neighbouring properties” but she did not quantify or clarify the height difference.
- In addition, the complaint response stated there was no reference in the application “to indicate that the ground levels would be excavated down to a new lower level below the former ground floor level apart from the proposed street scene”. These comments show the street scene drawing indicated that excavation was needed to ensure the dwelling was build according to the plan. Given this drawing provided the only reference to the base level of the dwelling and the Council had previously raised concerns about the relative height of the development in response to previous applications, it should have requested more information from the applicant about this aspect of the proposal. Furthermore, the Council’s comment that in future, it “…will request confirmation of the scale of street scenes and earlier details of proposed levels” if submitted, indicates it tacitly accepts the drawing in this case did not provide sufficient information.
- Considering all these points, I have found the Council was at fault for not ensuring it had sufficient information about the base height of the dwelling before it decided to grant planning permission.
The Council’s response to the alleged breaches of planning control
- When the Council conducted its enforcement investigation, I note it visited the development site several times as the building work progressed. It measured the difference in height between the ridge of the dwelling and the property immediately adjacent to it, which it found to be 0.8 metres. It compared this with the difference in ridge height detailed in the street scene drawing, which was 0.6 metres, and found there had been a breach of approximately 0.2 to 0.3 metres. Similarly, its measurements indicated there had been a breach in relation to the erection of the chimney stack. I see it then concluded these breeches were minor before it decided not to take enforcement action.
- The National Planning Policy Framework states enforcement action is discretionary and “local planning authorities should act proportionately in responding to suspected breaches of planning control”. Similarly, the National Planning Policy Guidance states that local authorities should not normally take action when “there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area”. Consequently, the Ombudsman will generally only find a local authority was at fault if it fails to consider these factors before deciding whether or not to act.
- In this case, the Council used the street scene drawing when assessing whether there had been a breach of ridge height. This was the right thing to do given the drawing had been approved through the planning process, and that Mr X had asserted the dwelling had been built higher than the drawing had indicated. When it established there was a breach after taking its measurements, it assessed the impact of that breach on the area and the neighbouring amenities before deciding it was minor and no enforcement action was required. Likewise, it concluded the two-centimetre breach caused by the chimney stack was minor and did not require action.
- Consequently, I cannot find the Council was at fault as it properly considered the extent of the breaches before deciding not to take enforcement action. After reviewing photos of the dwelling, I accept it appears particularly large in relation to the neighbouring building. But, the Ombudsman is not an appeal body therefore I do not have the power to instruct the Council to change its decision. All I can do is check whether it followed the correct process, which I believe it has done so in this instance.
The Council’s complaint handling
- I have not found the Council was at fault for the way it handled Mr X’s two complaints. At each stage, it responded within the timeframes stipulated in its correspondence or its Complaint Policy, and it informed Mr X how he could escalate his concerns if he was not satisfied with the outcome. In addition, it held a meeting with him to try and resolve his concerns, which it was not required to do.
- In the correspondence, I see Mr X states he did not receive the stage two complaint response the Council sent in mid-May 2018. I have checked its records and note it attached its response to an email message which it sent to the address that Mr X was using at that time. Therefore, I am content there is no fault here.
- I have considered whether Mr X or his neighbours were caused any injustice by the fault I have identified in this statement, which relates to the Council’s failure to ensure it had sufficient information about the base height of the development before deciding the application. The Council’s enforcement investigation found the breaches caused no significant impact on the neighbouring amenities, therefore I cannot see how this fault caused any of the parties involved in this case a significant injustice. This is particularly true for Mr X as his property is located across the road from the development and is not directly adjacent to it. Therefore, material planning considerations relating to the impact on amenity, such as loss of privacy and overshadowing, do not apply to him.
- Nonetheless, I do believe the Council should take steps to ensure the fault does not reoccur so that residents can have faith in its planning system. Consequently, I have made a service improvement recommendation in the section that follows to address this issue, which it has agreed to undertake.
- The Council has agreed to start the process to amend the planning validation guidance documents available on its website, so they stipulate the submission of street scene drawings will normally be required when there is a notable difference in height between a proposed development and the neighbouring buildings. Ideally, these drawings should:
- contain a scale bar.
- be of a scale of 1:100 or 1:200.
- as a minimum, accurately show the height and outline of neighbouring dwell-ings/buildings and the position and size of windows/doors.
- accurately show any differences in levels, including dimensions.
- include written dimensions for gaps between buildings.
- The Council notes it must carry out a consultation and engage with the relevant stakeholders before it adopts these changes, which takes time. Therefore, it has agreed to complete all the necessary actions by 31 October 2019.
- The Council was at fault for not ensuring it had sufficient information about the base height of the dwelling before it decided to grant planning permission. However, this did not cause Mr X any injustice.
Parts of the complaint that I did not investigate
- I did not investigate whether the Council failed to protect or enhance the character and appearance of a conservation area near Mr X’s home because it failed to put in place an updated local development plan. This is because the Secretary of State for Housing, Communities and Local Government has written to the Council about its outdated local plan and is in the process of addressing the matter, therefore it would inappropriate for the Ombudsman to investigate this.
Investigator's decision on behalf of the Ombudsman