Summary: The Council failed to keep planning control over a development, which permanently adversely affected the complainant’s enjoyment of his home. The Council has agreed a payment to correct the injustice caused to the complainant. The Council reached a decision not to take enforcement action through due process and had no duty to inspect the development afterwards, as it had not been the inspector for Building Regulations.

The complaint

1. Mr X complained about the Council actions in response to his concerns about a retaining wall built by a developer to the rear of his property in 2015.
2. Specifically, Mr X complained the Council failed to properly investigate his concerns in 2015 about the height and proximity of the wall to his home, and overshadowing and drainage issues related to it. Mr X says the Council provided him with conflicting information on whether the wall had planning permission or was in breach of the relevant conditions imposed on the development sited on the land behind the wall.
3. Mr X complained the Council failed to act in 2015 when he raised his concerns before any houses had been built on the site. He says the Council’s delays allowed the development to continue without addressing the wall and resulted in the Council using the argument of proportionality to decide not to take further enforcement action against the developer.
4. Mr X said the wall is much higher than shown on the development plans (at a maximum of 4.5 metres) and is around 3.7 metres from the rear of his property. It is overbearing, causes a loss of light and he has experienced drainage problems since it was built, with flooding onto his property. Mr X considers the wall has had an adverse impact on the value of his property as a result.

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What I have investigated

5. I have exercised the Ombudsman’s discretion to go back more than the usual twelve-month period in this case. Mr X first raised his concerns in 2015 and has complained continuously since then, before bringing matters to the Ombudsman.
6. In order to understand the context of the development and the reasons why the wall was built I have looked back to the original planning permissions in 2005 and 2008 and at subsequent applications to discharge conditions on the 2008 application from 2012.

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The Ombudsman’s role and powers

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. 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)

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How I considered this complaint

10. I have spoken with Mr X and his solicitor and considered written information and photographs they have provided.
11. I have considered comments and information provided by the Council, including file records containing correspondence between the Council and the developer.
12. I have considered the relevant planning applications and related applications to discharge conditions for the development on the land behind Mr X’s home, available on the Council’s website and provided by the Council.
13. I have considered the 2008 Joint Circular from the Department for the Environment, Circular 11/95: ‘Use of conditions in planning permission’, superseded in March 2014 by Government Guidance on the Use of planning conditions.
14. I have considered the National Planning Policy Framework (2012) on enforcement.
15. I have considered the Council’s own planning Design Guidance (2008) on separation distances.
16. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

17. In 2008 the Council approved a planning application for 100 houses to be built on land to the rear of Mr X’s property. He did not live there at the time (but I will refer to it as ‘Mr X’s house’ in my statement). The development site rises up from the rear of the property, and at that time formed a grassy bank gently sloping away from the rear windows.
18. The Council received objections from the existing owner of Mr X’s home at the time, based on the proposed height of the new development in relation to the existing property and with concerns about drainage from the site, again due to the height above the adjoining properties.
19. The planning permission was conditioned, requiring the developer to provide further details for approval relating to matters such as ground levels and boundary treatments.
20. In 2010 the developer applied to discharge the conditions.
21. In 2013 Mr X bought his property, fully aware of the planning permission on the land behind his house.
22. In 2015 the developer approached Mr X in order to build a retaining wall behind his house. It was at this point Mr X became aware of the scale of the proposed wall (4.5 metres at the highest point, reducing slightly) and the likely impact on his amenity. Houses had not at this point been built on the land above the wall.
23. Mr X contacted the Council with his concerns about the wall and asked it to confirm the wall, as proposed, had full planning permission.
24. Mr X says the Council, since 2015, has confirmed the wall as now built did not have planning permission but, that as houses were built while the Council responded to Mr X, it would not now be fair or suitable to take enforcement action against the developer, due to the significant engineering work that would imply and related costs, plus the impact on the properties on the development site.
25. In 2016 Mr X engaged a solicitor to help him pursue these matters. He complained about flooding on his patio, which he said had been caused by the development, and later complained that the wall was showing signs of structural defects. He asked the Council to inspect it, which it declined to do.
26. Mr X remained dissatisfied with the Council’s responses to his complaints and so brought them to the Ombudsman.

National guidance on planning conditions and enforcement

27. Circular 11/95: Use of conditions in planning permission (2008) (the Circular) was applicable at the time the Council approved the relevant planning application in this case.
28. The Circular says: “The power to impose conditions when granting planning permission is very wide. If used properly, conditions can enhance the quality of development and enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. The objectives of planning, however, are best served when that power is exercised in such a way that conditions are clearly seen to be fair, reasonable and practicable.”
29. “Conditions should only be imposed where they are both necessary and reasonable, as well as enforceable, precise and relevant both to planning and to the development to be permitted.”
30. “In considering whether a condition is necessary authorities should ask themselves whether planning permission would have to be refused if the requirements of that condition were not imposed.”
31. The Circular provides some example conditions for landscape design proposals, boundary treatments and their implementation. These examples all ensure the condition states that full design plans should be submitted to the local planning authority for approval and that the development then must be built in line with that approval.
32. The National Planning Policy Framework (2012) (NPPF) says of enforcement: “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.”
33. The Council has a Local Development Plan. As part of this it has supplementary guidance, including on building houses and extensions. Within this is guidance on separation distances between houses, windows and blank walls.
34. Where the Council departs from national and its own local guidance, it should have clear and evidenced reasons for doing so.

What the Council did

35. The 2008 planning permission contained a number of conditions.
36. Condition 2 covered ground levels relative to ground levels adjoining the site to be approved and the development to conform to that approval, to protect the amenities of local residents.
37. Conditions 3 and 4 required a scheme for the disposal of foul and surface water to be approved and completed in accordance with that approval, to ensure a satisfactory means of drainage.
38. Condition 6 required a scheme of landscaping and boundary treatment to be approved, including changes in ground level or landform. The condition did not specify construction should comply with the approval.
39. In 2010 the developer made applications to discharge Condition 2 for specific plots on the development, including those directly behind Mr X’s house.
40. In early 2011 the Council approved some of the plots but specifically did not with reference to the plots behind Mr X’s property. The Council said “the submission lacks adequate information on this matter [rear garden levels]. Furthermore, I will only be able to deal with this matter if I have before me at the same time details of the intended landscaping/boundary treatment for these rear gardens.”
41. In March 2012 the Council issued the developer with Breach of Condition Notices covering these specific conditions.
42. The Notices required the developer to submit full details of existing and proposed ground levels and proposed building slab levels, submit a scheme for the disposal of foul and surface waters and submit a scheme for landscape/boundary treatment.
43. The developer stated the Council had been in receipt of this information ‘for many months’, the most recent being landscape drawings submitted in mid-December 2011.
44. The Council wrote to the developer again in early May 2012, requesting a further elevational drawing for the retaining wall for the plots behind Mr X’s house. It also asked for more detail on the drainage scheme, due to concerns that what the developer had provided did not protect properties to the south of the site (where Mr X’s house was).
45. The developer responded at the end of May. He said: “I would rather keep the retaining wall to give elevation to the fence which will provide a screen from mutual overlooking from the garden and the existing neighbours. Can you give that some further consideration – it can be changed if that is what you want. Does the existing neighbour have a preference?”
46. The developer said that relevant details on the retaining wall had previously been submitted within the landscape scheme. He provided a photograph of a similar retaining wall and fence located elsewhere on the site, to show what he proposed in the location behind Mr X’s house. The height of the wall was significantly lower that what was eventually built.
47. The developer sought a response from the Council on his query and was confident then the condition could be discharged.
48. In June 2012 the Council received an application from the developer, to discharge the conditions. In August the developer wrote to the Council with drawings of a revised drainage proposal and details of the retaining wall. This showed a wall of 1.5 metres ‘maximum retained height’. The email said this would be the final information needed to discharge the conditions.
49. The developer told Mr X’s solicitor in 2016 that the application from June 2012 had never been determined by the Council. The developer further chased the Council in July 2012 for its response and said it was finding the Council’s delayed/lack of responses difficult.
50. Mr X moved into his property in 2013. In 2015 the developer approached him about building the retaining wall behind his property.
51. Mr X contacted the Council with concerns about the height of the wall and the impact on his amenity. The wall would be no more than 4.5 metres from his rear house wall and 3.7 metres in height at the highest point. Mr X said this would have an adverse impact on his light and outlook.
52. The Council investigated his concerns and advised Mr X that the wall did not have planning permission. At that point Mr X says the houses above the wall had not been built. Mr X urged the Council to take action to reduce or remove the wall before the houses were built.
53. Mr X complained in January 2016 about flooding in his rear yard and sought clarification from the Council that the developer was responsible for maintaining the retaining wall.
54. Later in 2016 Mr X employed a solicitor to try and resolve matters, before the developer started to build the houses. The Council again confirmed to the solicitor the wall had no planning permission.
55. In protracted correspondence between the Council and Mr X and his solicitor from 2016 to 2018, the Council reached the view that it would not be proportionate or expedient to take enforcement action against the developer for a breach of planning control on the wall. Such action would involve significant engineering works which would have cost implications for the Council. It would have a significant impact on the new houses on the development that would be materially affected by such works.
56. The Council also said it had not discharged the drainage condition and sought information from the utility company who would have approved the drainage scheme for the developer to implement. There is no evidence it received, or chased that information so never provided a definitive response to Mr X.
57. In its final responses to Mr X and his solicitor the Council said it had not been involved in the inspection of the retaining wall under Building Regulations as the developer had employed an independent Inspector. The Council would therefore not agree to inspect the wall for structural integrity.

Analysis

58. In 2008 the Planning Officer’s report for the development contained specific reference to the objections made by the owner of Mr X’s house at that time. Concerns about the height of the new houses in relation to the existing properties and about drainage from the site were recorded.
59. The Officer’s report in dealing with these points said both issues could be addressed by appropriate conditions and so would not provide reasons to refuse the application.
60. The Council then set conditions on the planning permission it granted. The condition on ground levels was clear that the developer needed to submit plans to be approved and then should build in accordance with those.
61. The drainage conditions also required plans to be approved and then development to take place in accordance with those.
62. However, the condition for boundary treatments, including changes in ground levels, did not contain the requirement for development to take place in line with the plans approved by the Council.
63. The Council was therefore at fault in failing to ensure planning control on that aspect of the development at that point.
64. In 2011 the Council responded to the developer’s application to discharge these conditions. It assessed the application and separated out different plots on the site. It approved some but specifically sought more information for the plots behind Mr X’s house.
65. In 2012 the Council served Breach of Condition Notices on the developer because it said he had not provided the detail to enable these conditions relating to this part of the site to be discharged. The developer disputed this and in June 2012 he says he submitted the necessary plans.
66. The Council has been unable to evidence to the Ombudsman, Mr X or his solicitor that it determined that application to discharge these specific conditions. That is fault.
67. The Council has told Mr X and his solicitor that the wall does not have any planning permission as it stands.
68. Therefore, the Council lost control of the development, specifically the retaining wall behind Mr X’s property, in 2012. That was fault.
69. I have seen no evidence that it tried to restore planning control on that part of the site, despite Mr X alerting it to the issues in 2015, before houses were built above it. That was fault and a missed opportunity to regularise the development.
70. On balance I consider that, had the Council considered the issues in detail in 2015, it would have had the option to seek an alternative design and possibly a reduced height retaining wall that may have had a lesser impact on Mr X’s home. The plans it had showed a 1.5 metre retaining wall, yet the developer built one of 4.5 metres in height.
71. The result is that Mr X has a wall 4.5 metres from his main rear windows to his kitchen, that takes light and has affected his outlook. He overlooked a gently sloping grass bank but now has a steeply sloping timber, Permacrib wall, currently with no vegetation softening the aspect.
72. The Council’s design guidance says development should maintain a minimum distance of 6.5m between a principal window and a single story blank wall of a neighbouring property. Therefore, this wall does not conform to the Council’s own design standards and it has not provided any evidence to explain why it considers that to be acceptable. That is fault.
73. The Council may have still granted planning permission for a retaining wall of the same height set further back from Mr X’s property to comply with its design guidance. The wall is 2.8 metres closer to Mr X’s property than allowed for in the guidance and so Mr X has suffered a permanent loss of amenity.
74. The Council has set out its position on enforcement action to Mr X. It says that, given the likely scale of engineering works needed to alter the wall’s impact on Mr X’s amenity, the impact on the houses that would be affected in the development and the costs associated with these factors, it would not be in proportion to the benefits to require the developer to carry out such work.
75. Enforcement in planning is a discretionary power. The Council must investigate a complaint about a possible breach of planning control but then it has wide discretion on what action to take. It must consider what public harm is being caused by the breach (not private rights) and whether enforcement action would be in proportion to the reduction/removal of that harm.
76. In this case, the Council has investigated the complaint made by Mr X, although it took a long time to reach a view. Its view that it would not be appropriate to take formal action was one it was entitled to reach, having considered the public harm and the likely scale of the work needed. The Council was also entitled to consider the costs to it of formal action. (R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin)).
77. The Council has been unable to evidence to the Ombudsman or Mr X that it discharged the conditions on drainage or that it had confirmation from the relevant utility company that the drainage scheme installed by the developer met the necessary requirements. That is fault.
78. However, I am not able to say that this fault directly caused the flooding Mr X complained of. But the lack of clear evidence of proper process has been an unnecessary anxiety placed on Mr X which could have been avoided.
79. The Council has declined to inspect the retaining wall which Mr X says is starting to fail in places. The Council says the developer used an independent Building Regulations Inspector, therefore it had no role in ensuring the wall was built to the required standards.
80. I have seen evidence that supports the Council’s comments. The developer was entitled to use an independent Inspector rather than the Council for Building Regulations. I therefore do not find fault in the Council’s position on this point of Mr X’s complaint.
81. Mr X may wish to take specialist legal advice on whether he could approach the developer to inspect the wall, or seek an independent assessment.
82. The Council does not have to consider the value of property in reaching planning or enforcement decisions. It is also not something the Ombudsman would consider in this case.

Findings

83. The Council failed to ensure it retained planning control of the development from a lack of precise and enforceable conditions in 2008 and a failure to determine the discharge of conditions application in 2012.
84. It also failed to consider appropriate action in 2015 when Mr X first raised his concerns, before houses were built on the site.
85. This fault resulted in the construction of a high wall that impacts adversely on Mr X’s amenity, taking light and obscuring his outlook at a distance of no more than 3.7 metres.
86. The Council decision not to take enforcement action against the developer was a decision it was entitled to reach.
87. The Council failed to ensure the drainage plans were approved and that these met the requirements of the local utility company. The lack of proper process to allow Mr X an understanding that the drainage system complied with requirements caused him unnecessary anxiety. However, I cannot say the drainage system itself was responsible for the flooding Mr X reported.
88. The Council did not carry out building regulations inspections for the development therefore has no duty to inspect the structural integrity of the wall.

Agreed action

89. Mr X has suffered permanent harm to his amenity from the Council’s failure to retain planning control.
90. I recommend the Council:
• apologises to Mr X for the faults identified above and the consequences on Mr X’s enjoyment of his home;
• pays Mr X £5,000 to recognise the impact of its actions on his amenity and the anxiety caused over the drainage.
91. The Council should complete these actions within one month of my final decision.
92. I recommend the Council:
• reviews its enforcement processes to ensure investigations are timely and, where decisions may be time-critical, as in the construction of houses in this case, reaches its decision on what action to take without delay and keeps the complainant informed of key steps in the process;
• undertakes a review of its planning application processes to ensure officers are fully aware of the current Government guidance on use of conditions and the six tests they should apply; and
• undertakes a review of its planning and enforcement records to ensure they provide a clear audit trail of decision-making through complete decision records, case officer notes and relevant correspondence, to comply where necessary with the Openness in Local Government Regulations 2014 and good practice as set out in the Ombudsman’s September 2018 Guidance ‘Recording planning Decisions’.
93. The Council should provide evidence of these reviews and any actions taken within three months of my final decision.

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Final decision

94. The Council failed to ensure it retained planning control on the development behind Mr X’s house. It missed an opportunity to regularise the development in 2015 before houses were built on the site, when Mr X first raised his concerns. This caused permanent harm to Mr X’s amenity.
95. The Council failed to provide evidence to Mr X that the drainage system met requirements but cannot say the system has been the cause of the flooding on Mr X’s property.
96. The Council reached its decision on enforcement action appropriately and had no duty to inspect the wall when Mr X requested that.
97. The Council has agreed to my recommendations so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman