South Gloucestershire Council (18 018 152)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 27 Nov 2019

The Ombudsman's final decision:

Summary: The Ombudsman found no fault on Mr S’s complaint of the Council failing to properly check the plans sent by a neighbour for an extension. The errors on the plans were not significant or obvious. There was no fault on his complaint about the Council deciding not to take enforcement action for 2 breaches. These were likely to get consent if approval was sought and the Council had discretion to make this decision.

The complaint

  1. Mr S complains the Council failed to:
      1. Properly check the measurements shown on a neighbour’s planning application for a single storey side and rear extension along with a separate single storey rear extension; and
      2. Take enforcement action against the neighbour for building it higher than permitted.
  2. As a result, the extension dominates the view from his bedroom and rear garden.

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The Ombudsman’s role and powers

  1. 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)
  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’. 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)
  3. 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)

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How I considered this complaint

  1. I considered all the information Mr S sent, the notes I made of our telephone conversation, his photographs, and the Council’s response to my enquiries, a copy of which I sent him. I did not send a complete copy as some of it contained third party information which needed to remain confidential. I considered Mr S’s response.

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What I found

  1. Mr S’s neighbour applied for planning consent for a single storey and side rear extension to replace a conservatory. The extension would have a lantern light on its roof which allows daylight to enter the room below it. The Council gave consent but when the neighbour built it, Mr S claimed the extension was higher than shown on approved plans, and the lantern light was twice the size it should be. When Mr S reported the breaches to the Council, planning enforcement officers visited.
  2. During the first visit, the officer noted the lantern was not installed. The officer measured the height of the roof at 3 metres at one end and 3.2 metres at the other. The height of the lantern was measured at 50cms. The officer decided there was no breach despite the lantern being larger than shown.
  3. During the second visit, the site notes show the officer confirming the lanterns on both parts of the rear extension appeared higher than shown on the plans. The officer measured them from the internal floor level and found them to be 3.9 metres rather than 3.5 metres shown on the plans.
  4. During the third visit, 2 officers went and found differences with the eaves and roof heights shown on the plans compared to those existing on the house.
  5. The Council initially told Mr S the works were built according to approved plans with the only difference the area size of the roof lantern. The Council decided it could not justify taking enforcement action against his neighbour.
  6. When Mr S later complained, the Council confirmed while the extension was built correctly within tolerances, the elevations of the existing house were drawn incorrectly on the plans. The Council considered the height difference between what was built and that shown on the plans as 30-40 cms.
  7. The Council explained the case officer checks plans received are accurate. While officers compare plans to the existing buildings for accuracy, they do not carry out measurements. The Council confirmed it would not take any enforcement action about these differences. It would remind officers of the need to check plans for accuracy in the future.
  8. In response to my enquiries, the Council confirmed when measured, the height of the lantern from the internal floor is 3.5 metres. The approved plans show this as 3.2 metres. This means the height of the lantern is 30 cms higher than shown on the approved plans. The Council also confirmed the lantern size area is larger than shown on approved plans.
  9. It explained the rear elevation on the plans the neighbour sent with his application were wrong. While the extension is shown correctly, the eaves and ridge height of the existing house are shown lower than they are. It would not expect officers to routinely measure existing building’s eaves and ridge height for example. The applicant declares the plans and drawings are accurate when making the application. It considers it likely the neighbour would get consent for the slightly larger lantern if he applied.

Analysis

Complaint a): Planning application stage

  1. Mr S argued the Council was at fault for failing to identify the inaccuracy of the plans when it received the application.
  2. I found no fault on this complaint. This is because:
      1. The responsibility for the accuracy of the plans generally rests with the applicant, and not the council receiving a planning application;
      2. There were errors on the plans showing the height of the ridge and the eaves. The error meant the plans were wrong by about 30-40 cms; and
      3. While I would expect officers to identify significant and obvious errors, the errors on the plans submitted were not, in themselves, significantly obvious.

Complaint b): enforcement stage

  1. Mr S argued the Council should have taken enforcement action against the neighbour for failing to build the extension according to the approved plans.
  2. I found no fault on this complaint. This is because:
      1. When alerted to the extension’s height, and the larger lantern fitted, officers took the report seriously and carried out 3 site visits to investigate;
      2. Having done so, the Council decided the lantern was likely to get consent if the neighbour applied for it;
      3. The planning officer’s report noted the conservation officer confirmed the scale and siting of the extension meant it would have little or no public impact. The report noted the property is detached with a large area around it. The extension is away from its boundaries and would have no unacceptable impact on the residential amenity of neighbours. The impact of any breach on those affected needs considering (Article 8, European Convention on Human Rights);
      4. The Council’s own planning enforcement policy states enforcement is operated in the public interest. It is not the role of the Council to punish minor or trivial breaches which do not demonstrably harm the public interest. Responses to breaches need to be proportionate and consider the extent to which the public interest is protected by a decision to take, or not to take, action. (South Gloucestershire Council: Planning Enforcement Policy)
      5. From the plan and photographs I have seen, the impact on Mr S is not significant;
      6. A planning authority may take enforcement action where there has been a breach of planning control. The National Planning Policy Framework (paragraph 58) explains enforcement action is discretionary. It guides local planning authorities to act proportionately when responding to reported breaches of planning control; and
      7. Had the Council taken enforcement action for the lantern or the height of the extension, it would need to be sure it could defeat any defence the neighbour made. The neighbour could have applied for consent to regularise both with a real chance they would have been approved anyway.

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Final decision

  1. The Ombudsman found no fault on Mr S’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman

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