Summary: Mr X complains the Authority failed to consider ground levels and the raising of land when considering a planning application. The Authority knew the applicant would raise the ground levels but did not specify by how much and did not consider the impact of the raised levels when determining the application. While this is fault, the result, on balance, would have been the same and the Authority would have granted permission.

The complaint

1. Mr X complains the Authority failed to consider the ground levels on a planning application for a boathouse and dock resulting in the building being higher than the plans said. He also complains the Authority has failed to take enforcement action.
2. Mr X says the boathouse affects his residential amenity.

Back to top

The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an authority’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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Authority and considered the comments and documents the Authority provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Authority and the complainant and taken account of the Authority’s comments before making my final decision. I did not receive any comments from Mr X.

Back to top

What I found

6. Mr X lives next door to a vacant plot not previously developed. Mr X’s neighbour bought the plot and it became part of the curtilage of his property. The neighbour submitted an application to build a boathouse and dock on the land. The Authority sought amendments to the original application to reduce the size of the boathouse and remove some of the boardwalk around the site.
7. Mr X, and other neighbours, objected to the application. The Authority produced a report setting out the issues for consideration. The report included an assessment of how the development would affect Mr X’s residential amenity. It commented on the separation distances between Mr X’s property, the boundary and the proposed boathouse. The report noted the position of windows on Mr X’s property. It said the reduction in the length of the boathouse and amendment to is position, put it in line with Mr X’s property. It noted the development would change the outlook but it did not consider the boathouse would result in overbearing, overshadowing or loss of light to Mr X’s property to such an extent to justify refusal of the application.
8. The report also included a section on geodiversity and biodiversity. The development site is in area of peat soils. The applicant provided a boring survey which identified peat in the soil. The report stated the application proposes depositing the excavated material from the dock over the site. This proposal was considered acceptable to the Authority.
9. When work began on site, Mr X contacted the Authority. He raised concerns about the height of the piles installed. Mr X says the works showed the building would be significantly above the existing ground levels.
10. An enforcement officer visited the site and inspected the works. Following his visit he wrote to Mr X saying as the planning application did not provide details of ground levels, the Authority considered the application was built from existing ground levels. The Authority said the neighbour would need to reduce the height of the piles to address this or make a formal application to amend the scheme if they wished to construct it with raised levels. It also asked the neighbour to stop works while it investigated.
11. A week later, after correspondence between the authority and the applicant, three officers, including a planning manager, visited the site. The officers viewed the works. While no formal decision was made during the visit, the Authority’s response to my enquiries states the visiting officers took the view the construction was not in accordance with the approved plans. Officers then discussed the case with the Head of Planning who took the view the works were in accordance with the approved plans.
12. The Head of Planning wrote to Mr X explaining the decision taken in response to his concern about the height of the piles and finished building. The Authority said the plans do not show any ground levels but it is possible to determine the overall finished height of the building. It said the lack of ground levels means it can be assumed the measurements should be taken from the existing ground levels. It said it had information from the applicant which shows it had always intended to spread the material generated from the excavation of the dock across the plot to raise the levels.
13. The Authority went on to say it was clear on the site visit the ground levels would be raised to the height of the existing quay heading and so the height of the piles is correct. The Authority therefore decided there was no breach of planning control.

Analysis

14. Mr X complains the new boatshed has been built higher than was anticipated. He says the reduction in height negotiated by the Authority has been negated by the fact the ground levels have been raised. Mr X feels his residential amenity has been affected as a result. He says he brought this issue to the Authority’s attention at an early stage of the building works and feels it should have taken prompt action to resolve the issue.
15. There is no doubt the ground levels on the adjoining site have been raised. The Authority says the site was not completely level to begin with and accepts ground level has been raised by up to 400mm.
16. The plans did not show the existing ground levels. The Authority has said in response to Mr X’s complaint that including ground levels would have been helpful as part of the application process. When considering the application, while there was some mention of spreading the excavated material on the site, there was no detail provided of how this would affect ground levels.
17. The application was considered on the assumption the boathouse would be built from the existing ground levels but this is not what has happened. The Authority is satisfied the building has been constructed in accordance with the plans and that it was aware the ground levels would be raised when determining the application. While this may be correct, the facts presented for determination were incomplete. If it was known the ground levels would be raised then this should have been clearly stated in the delegated decision report. I am not persuaded the Authority properly considered the impact on Mr X’s property as it did not properly represent the position of the new boathouse as it provided no information about the raised ground levels. This is fault.
18. As I have found fault I have to consider how this has affected Mr X. It is arguable the finished boathouse is up to 400mm higher than it would have been if the ground levels had not been raised. I have therefore considered whether this difference in height would have changed the planning decision in this case. While I appreciate Mr X’s concerns about the development, I cannot say the application in this case would have been refused if the correct information had been considered. On balance, I consider the application would still have been granted as the difference in height would not have been considered so significant as to warrant refusal of the application.
19. Mr X has also complained about the Authority’s failure to take enforcement action. As the Authority has determined there is no breach of planning control, because the building dimensions are correct and it did know the land levels would be raised, I cannot criticise it for not taking enforcement action.

Agreed action

20. There is fault in this case as the ground levels should have been included and considered given to this when determining the application. I consider the Authority should apologise to Mr X for its failure to properly consider the application and the impact on his residential amenity.
21. The Authority should also review its procedures to ensure planning applications include details of ground levels to ensure similar problems do not occur in other cases.
22. The Authority should carry out these actions within one month of my final decision.

Back to top

Final decision

23. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Authority has agreed to implement the action I have recommended. These appropriately remedy the injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman