King's Lynn & West Norfolk Council (18 015 413)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 16 Apr 2019

The Ombudsman's final decision:

Summary: There is no evidence of injustice arising from the Council’s handling of a planning enforcement matter. For this reason, the Ombudsman has discontinued his investigation.

The complaint

  1. The complainant, to whom I will refer as Dr N, says the Council has refused to take enforcement action against a large-scale development near his home. He complains the development will now overlook his property, and that there is an increased risk of flooding because of the unauthorised changes made by the developer.

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The Ombudsman’s role and powers

  1. 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)
  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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained …

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I reviewed the Council’s correspondence with Dr N, and the documents available on the Council’s planning website.
  2. I also sent a draft copy of this decision to both parties for their comments.

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What I found

  1. Dr N purchased a bungalow and moved into it in February 2016. Prior to this, the Council had granted a planning application for a major housing development in an open space behind Dr N’s new home.
  2. Dr N said he was aware of the planning application while he was in the process of buying his home. He researched the application and the plans, and noted that some of the proposed buildings were directly behind his property.
  3. These were two-storey buildings, but due to a difference in land levels, it appeared their roofline would be approximately the same height as Dr N’s bungalow. As a result, Dr N’s garden fence would be sufficient to obscure the view from the new properties into Dr N’s home.
  4. However, the developer then proceeded to raise the level of the land by approximately two metres. This meant the first-floor windows at the rear of the completed properties would now have a direct line-of-sight over the fence and into the rear of Dr N’s property.
  5. Dr N reported this to the Council as a planning enforcement matter. He also raised concerns that the change in land level increased the risk of flooding to his property. The Council decided it would not take enforcement action against the developer.
  6. Dr N raised a complaint with the Council, to which it responded on 12 October 2018. It said it had spoken to the developer, which had explained it had always intended to level off some of the land during the build. The Council said there had been no clear plan about land levels during the application process, and it would “arguably have been helpful” for a condition about land levels to have been included with the original consent.
  7. However, the Council did not consider there to have been an unacceptable effect on Dr N’s amenity. This is because there was a separation distance of approximately 70m between the rear of his bungalow and the rear of the new buildings directly behind. It did not consider this to represent a material impact. However, the Council also said it had control over boundary treatments to be placed at the end of the new properties’ gardens, and it would consider the need to prevent overlooking when discharging the relevant condition.
  8. The Council did not accept there was any increased risk of flooding. It said surface water would flow down a gap between the rear of Dr N’s and the new properties as part of a planned system. It also said it had control over this through conditions, and would consult with the relevant drainage authorities when considering whether to discharge the condition.
  9. Dr N submitted a second stage complaint to the Council on 21 October. He reiterated his concerns about the loss of privacy caused by the raise in land levels, and said that the level of the land (as it had been) was a key consideration in his decision to purchase the property.
  10. He said that, as a gay couple, he and his partner were at enhanced risk of hate crime, and so the privacy was a particularly important factor for them. He also alleged the Council was discriminating against him and his partner on this basis.
  11. Dr N also reiterated his concerns about flooding. He said he had not been consulted about the developer’s plan to channel surface water between their properties, and asked who would be responsible for maintaining the drainage system to prevent flooding.
  12. The Council responded on 15 November. It said it had invited the developer to submit a new plan to regularise the change in land levels, but it had declined to do so as it felt it was building in accordance with the approved plans.
  13. The Council explained to Dr N this meant it was required to consider taking enforcement action instead. However, enforcement action is discretionary, and the Council was required to consider the expediency and proportionality of doing so. Because of the distance between Dr N’s property and the development, the Council maintained its view that it was not appropriate to take enforcement action in this case.
  14. The Council again stated there was no increased risk of flooding, and explained that water would drain south away from the properties.
  15. The Council rejected Dr N’s allegations of discrimination, and pointed out that it approved the planning application before Dr N had purchased his property.
  16. Dr N sent a response to the Council on 30 November. He reiterated the points he had made previously, and included a new complaint about the Council’s handling of a potential planning enforcement matter against him.
  17. Dr N then referred his complaint to the Ombudsman on 11 January 2019.

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Legislative background

  1. 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. 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 July 2018, paragraph 58)

  1. Councils generally expect minimum separation distances of 21 metres between directly facing habitable room windows, though may vary that distance to take account of the landscape.

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Analysis

  1. Dr N has raised several points of complaint about the Council’s decisions in this case, but the crux of the matter is that it has not taken enforcement action against the developer for raising the levels of the land behind his property.
  2. Local planning authorities can take enforcement action against developments under a number of circumstances. These include development which does not have the appropriate permission, or which is in breach of a condition. But authorities’ enforcement powers are discretionary, and they do not have to use them if they do not consider it appropriate.
  3. In this case, it is not clear whether the developer’s decision to raise land levels could be subject to enforcement action. The Council has accepted there was some ambiguity about land levels in the original planning permission, which adds weight to the developer’s argument it was not acting in breach of the permission. The Council concedes it may have been “helpful” if it had included a specific condition about this.
  4. It is possible, therefore, that the Council would not have had the power to take enforcement action against the developer here anyway.
  5. However, I do not consider this is necessarily indicative of fault. Planning decision-making is not intended to be a forensic process, and cannot be expected to foresee all possible eventualities. While it has become clear that more detail on this point would have been useful, this is with the benefit of hindsight. It does not mean the Council made an error during the planning process.
  6. On the information before me, I cannot conclude whether there was fault by the Council here or not. But, even if there were fault, I cannot say it has caused Dr N a significant injustice.
  7. In planning, there is a general principle that there should be a separation distance of at least 21 metres between directly facing habitable rooms. Beyond this, neighbours’ ability to see directly into each other’s properties is not considered to represent a serious material impact on their amenity.
  8. In this case, there appears to be approximately 70 metres between the rear of Dr N’s property and that of the new properties. Dr N disputes whether this is accurate, but whatever the exact distance, it is clearly well beyond the generally accepted threshold of 21 metres.
  9. The Council has explained that, because of this distance, it does not consider the impact on Dr N’s amenity by the change in land level to warrant enforcement action. The Council’s enforcement powers are discretionary, and so it is entitled to make this decision.
  10. The Ombudsman’s role is to review authorities’ adherence to procedure when making decisions. It is not to replace the authority’s decisions with his own. If the authority has followed the correct procedure when making a decision, and taken all relevant information into account, then the Ombudsman cannot generally criticise it. That a person may disagree with the decision is not, in itself, evidence of fault.
  11. As I have said, it is possible the Council would not have the power to take enforcement action anyway – and, if so, this may be the result of fault.
  12. But even if the Council had explicitly set out the land levels in the planning permission, its reasons for not taking enforcement action here would remain valid; and so it appears likely the Council would have made the same decision either way. There is no reason to believe the outcome would be any different for Dr N, regardless of any finding on fault I might make by completing my investigation.
  13. I have therefore discontinued my investigation of this aspect of Dr N’s complaint. While I cannot safely conclude there was no fault, I am satisfied there is no evidence of injustice.
  14. Dr N also considers there is now an increased risk of flooding to his property because of the change in land levels. He acknowledges the Council’s comment that surface water will run in a channel between the rear of his garden and that of the new properties, but says his property will flood if this becomes blocked.
  15. The Council says it retains control over the drainage issue because of conditions on the planning permission, and that it will consult with the relevant bodies before deciding whether to discharge the condition. It does not consider there is any reason to be concerned about flooding.
  16. Dr N has presented no material evidence to support his claim about an increased risk of flooding. While he refers to the potential the drainage channel could become blocked, it appears highly speculative to suggest this, alone, could lead to his property flooding.
  17. In any case, as the Council is yet to discharge the relevant condition, it remains to be seen whether it considers the drainage arrangements to be adequate. I could not, therefore, make any finding on this aspect of Dr N’s complaint, and so I must also discontinue my investigation here.
  18. If Dr N remains concerned with the drainage arrangements once the condition has been discharged, it will be open to him to make a new complaint about it, first to the Council, and then to the Ombudsman if necessary.
  19. Dr N considers the Council to be institutionally discriminatory towards him and his partner as a gay couple. He says the Council has failed to consider the increased risk of abuse he and his partner face when deciding whether to take enforcement action.
  20. The Council can only take account of material planning considerations when making decisions about planning matters. While privacy is a material planning consideration, I find no reason to criticise the Council’s decision that the separation distance means there was no serious impact on Dr N’s amenity in this respect. I do not consider this is altered by the existence of protected characteristics.
  21. In any event, the Ombudsman has no power to pass judgement on allegations of discrimination, as this is a matter for the courts.
  22. Dr N has also complained about technical difficulties he had with the Council’s online planning portal, meaning he was unable to ascertain the intended topography of the site before committing to a purchase of his property.
  23. The Council’s planning portal appears to be a generic system common to many local planning authorities. There is nothing which suggests it does not function as intended.
  24. It is possible that the plans and drawings uploaded for this particular application did not contain the exact data which Dr N sought, but if so, this would be an issue with the plans themselves and not the system.
  25. As I have said, it is possible fault the Council did not specify land levels in the planning permission, but for the reasons given I cannot find this has caused an injustice to Dr N. And so I also do not consider it proportionate to investigate this point further.
  26. I note that Dr N also raised a new complaint about a different enforcement matter, relating to his own property, as an ‘addendum’ to his final letter to the Council.
  27. This letter was in response to the Council’s stage 2 complaint response. As this represented its final comments on the matter, the Council does not appear to have responded further. I would not criticise the Council for not accepting an entirely new complaint, on a separate matter, at this point.
  28. If Dr N wishes to pursue this matter, I would recommend he raises it as a separate complaint.

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Final decision

  1. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman

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