Summary: Mr B complains the Council has allowed his neighbour to significantly increase land levels to create a patio and path. Mr B says his property is now at risk of flooding. We find the Council’s decisions to grant planning permission and later to not take enforcement action were not affected by fault. This means we cannot say the Council’s decisions were right or wrong. We have completed our investigation.

The complaint

1. The complainant, who I will refer to as Mr B, complains the Council has wrongly allowed his neighbour to significantly increase land levels to create a raised patio and path. Mr B says his property is at risk of flooding because his neighbour in effect has created a gulley which water flows into above the level of the air brick in his property. Mr B also says the new boundary fence is not stable. In addition, Mr B says the Council has allowed his neighbour to build an extension which is higher than approved.
2. Specifically, Mr B complains the Council:
• granted planning permission based on inaccurate plans;
• did not give proper consideration to his objections when it granted planning permission; and,
• refused to take enforcement action even though the extension is higher than approved.

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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. 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)
5. 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

6. I have considered Mr B’s complaint and the supporting information he provided. I have discussed the complaint with Mr B. I have considered planning records, both provided by the Council and available on the Council website. I have also shared a draft version of this statement with Mr B and the Council, and have considered the comments I received in response.

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What I found

7. Planning permission is required for the development of land (including its material change of use).
8. Planning permission may be granted subject to conditions relating to the development and use of land.
9. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
10. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. 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)

What happened

12. During 2018 Mr B’s neighbour started building an extension which had been granted planning permission by the Council. Mr B noticed his neighbour had increased the height of the ground level to build a raised patio and path next to his property. Mr B also says his neighbour raised a manhole cover by three feet. Mr B says his property is at risk of flooding because his neighbour in effect has created a gulley which water flows into above the level of the air brick in his property.
13. The Council also noticed the increase in ground level and asked Mr B’s neighbour to put in a part retrospective application for planning permission for the raised patio and other changes.
14. Mr B objected to the planning application. Mr B said the plans put in for the application did not correctly show the previous ground level. Mr B provided photographs showing the raised patio and the gulley which had been created next to his property.
15. The Council wrote a report which recommended planning permission should be granted. In the report the Council discussed the change to the land levels, but said the Council must decide whether the proposed levels are acceptable.
16. The Council’s planning committee considered the application. Mr B spoke at the meeting and said why he objected to the application.
17. Mr B talked about the impact of the raised patio on his property including the risk of flooding due to the raised patio creating a gulley next to his home.
18. The planning committee decided to grant planning permission. The minutes of the committee meeting show that members of the committee asked questions about the extent of the increase to the ground level. Planning officers said this was difficult to assess. One member asked whether Mr B’s concerns about the gulley that had been created and his air brick would be a building control matter. The planning officer said it would and also potentially a civil matter between both property owners.
19. Mr B complained to the Council about its handling of the matter. Mr B said his neighbour had recently raised the ground level close to the boundary with pea gravel which means the new fence is not stable.
20. The Council responded to Mr B’s complaint. The Council did not accept it was at fault. The Council said the original land levels were difficult to determine from the information submitted. The Council said the assessment of the retrospective application looked at whether the new levels (not the original levels) were acceptable in planning terms. But, the Council said it was aware the extension was higher than approved. The Council said it would ask Mr B’s neighbour to put in a further retrospective application for planning permission for this.
21. The Council added that Mr B’s concerns about the level of his air bricks in the gulley and the raising of a manhole cover were matters for building control to inspect. The Council said building control inspectors had no remaining concerns about the development.
22. In June the Council wrote to Mr B. The Council said it had not received a retrospective application for planning permission regarding the new height of the extension. But, the Council said enforcement action was not justified, so it would not be taking further action. The Council explained why it did not consider enforcement action was warranted. The Council said it did not consider the extension as built has an adverse impact on the character of the property, the wider area, or neighbouring amenity.

Analysis

23. Mr B strongly disagrees with the Council’s decision to grant retrospective planning permission for the raised patio at his neighbour’s property. But, I cannot say this decision was right or wrong unless there was fault in the way the Council reached this decision.
24. I find the Council’s decision was not affected by fault.
25. The Council wrote a report setting out its consideration of the application. In the report the Council explained why it considered the impact on Mr B’s property was acceptable. The Council considered relevant planning considerations such as privacy and the design of the boundary treatment.
26. Mr B does not consider the plans correctly show the previous ground level. Mr B considers the increase in ground level is much greater than the applicant has indicated. But, the extent of the increase in ground level was considered in both the case report and at the committee meeting. The Council was correct to say regardless of the extent of the increase in ground level, the Council’s role was to decide whether the development was acceptable.
27. It appears Mr B’s main concern is about the impact on his property because of the creation of a gulley between the buildings which he considers could cause flooding and maintenance problems. Mr B is also concerned about his neighbour raising the height of the drain cover.
28. These were not material planning considerations the Council could consider when deciding whether to grant planning permission. These are civil matters between Mr B and his neighbour. Also, building control inspectors were in the best position to consider the issue of drainage.
29. Mr B is also concerned that his neighbour has not secured the fence posts correctly. Mr B says one of the requirements of planning permission was the fence posts would be secured using concrete. But, I have not seen evidence of this and the Council says planning permission did not require this.
30. Mr B also complains about the Council’s decision not to take enforcement action about the height of the extension which is higher than allowed. The decision on whether to take enforcement action is discretionary. A local planning authority is not required to take planning enforcement action just because there has been a breach of planning control.
31. The Council is satisfied the height of the extension is a breach of planning control. Once Mr B’s neighbour did not put in a retrospective application for planning permission the Council had to decide whether enforcement action was warranted. The Council has explained why it has decided enforcement action was not justified. Mr B disagrees with this decision. But, I have not seen any information to suggest this decision was affected by fault. So, I cannot say the Council was wrong not to take enforcement action.

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Final decision

32. The Council was not at fault for the matters complained about. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman