Summary: Ms C complains about how the Council dealt with development next door to her home which has an impact on her amenity. The Ombudsman finds no fault with the Council’s actions in this matter.

The complaint

1. The complainant, Ms C, complains the Council permitted inappropriate development next to her home. She also complains the Council failed to ensure compliance with conditions and failed to take action in respect of the development as built, which is not in accord with the approved plans.

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What I have investigated

2. I have investigated the actions of the Council after Ms C complained about the development in 2018, once building was underway.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. I considered the information provided by Ms C about her complaint. I made written enquiries of the Council and took account of the information it submitted in response. I provided Ms C and the Council with a draft of this decision and took account of all comments received in reply.

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What I found

Background – the planning application

7. In 2017 the Council received an application for planning permission for a two-storey detached house and a detached garage on land which shares a boundary with Ms C’s property. Ms C was notified of the application but lodged no objection.
8. The planning case officer visited the site, took photographs and then prepared a report. The report noted the positioning of properties surrounding the proposed development site and relative to the siting of the proposed dwelling on the plot, including a terrace of 4 homes to the west, which includes Ms C’s home at the southern end. The report also noted the proposed development would not be directly in tandem with any of the neighbouring dwellings. The officer noted that the ground level rises gently from northeast to southwest, so Ms C’s property is on slightly higher ground. Overall the case officer’s view was that there were no undue concerns in respect of impact on residential amenity. Approval was recommended and planning permission was subsequently granted.

What happened next – Ms C’s concerns

9. Once development was underway, Ms C became concerned about the impact of the property on her amenity and in mid-2018 contacted the Council about this. She was concerned about the height of the new build which she thought was unacceptable, and its proximity to her home. She also considered the house was not being built in the correct position on the plot, when compared to the plans, and that therefore it overlapped more than it should with her property. She said the new house would obscure the sky from her living room and block morning sunlight from the front of her home in winter. She also raised concerns about non-compliance with pre-commencement conditions which included the submission and approval of a landscaping plan.
10. The Council advised Ms C that it was following up with the developer the matter of the two conditions which had not yet been discharged. It subsequently received what was required from the developer and was able to discharge the conditions.
11. On the matter of the development itself, the Council confirmed an inspection had been to check dimensions and positioning on the plot. The height was in accord with the planning permission. Regarding size and location on the plot, the Council said there were limited deviations from the plans, ranging from 18cm to 40cm, attributed to building and boundary tolerances. The Council considered that discrepancies did not have a material impact on the overall development or result in significant planning harm to warrant formal enforcement action.
12. In further correspondence after Ms C made her formal complaint, the Council having re-visited the site said the separation distance of 19m between Ms C’s home and the new development was within acceptable standards for two storey dwellings, having regard to privacy and potential impact on daylight and sunlight. Overlooking of the garden area was to the front garden, which would generally have lower levels of privacy than rear gardens in any case. The Council accepted there was some overlapping of frontages but no significant deviation from the approved plan. The Council considered there were no grounds for enforcement action.
13. Ms C remains dissatisfied. In addition to points raised with the Council she has referred to a loss of view and loss of value in her property: these however are not material planning considerations. She considers the property is three-storey not two, but this is not correct: it is a two-storey house with Velux windows in the roof. She is unhappy that the Council did not view the property from her home, but this is not something the Council’s officers needed to do in order to reach a view on the planning merits of the case or to decide on expediency of enforcement action.

Analysis

14. It is clear from the evidence that when the Council approved this development in 2017 it did not do so in ignorance of material facts: the records show the planning officer had noted the position of surrounding properties and considered relevant impacts.
15. If the Council finds planning rules have been breached, they can take enforcement action. However, enforcement action is discretionary, and it is for the Council to decide if enforcement action is expedient in the public interest. councils should not take enforcement action just because there has been a breach of planning control.
16. The evidence in this case shows that the Council responded appropriately to Ms C’s concerns about the development. It made site visits to assess whether there had been a breach of planning control and decided that while the development was not wholly in accord with the plans and therefore the permission, the discrepancy was not so significant as to warrant enforcement action.
17. It is acknowledged that the new development has some impact on Ms C’s amenity, and that she does not agree with the Council’s decision that enforcement action is not warranted. There was however no fault in how that decision was reached and it is not the Ombudsman’s role to substitute his views for the professional judgment of the Council’s officers, where this has been exercised without fault.

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Final decision

18. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

19. I did not investigate how the Council dealt with the planning application in 2017. This is because Ms C was notified of the application at that time. She could therefore have complained sooner if she was unhappy with the way the Council made the decision to approve the development. I have referred to the Council’s consideration of the planning application to provide relevant background information only.

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Investigator's decision on behalf of the Ombudsman