Summary: Mr C complains the Council failed to respond properly and take appropriate action in response to his reports of increased land levels at a nearby development. Mr C says he will suffer from a lack of privacy and potential future drainage and sewerage issues. The Ombudsman has found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council has failed to respond properly and take appropriate action in response to his reports of increased land levels at a nearby development.
2. Mr C says because of the Council’s fault, he will suffer from a lack of privacy and there may be potential future drainage and sewerage issues.

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. 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)

Back to top

How I considered this complaint

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

Back to top

What I found

Background and legislation

7. Planning authorities may take enforcement action where there has been a breach of planning control. Government guidance makes clear that enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control.
8. Section171A of the Town and Country Planning Act 1990 defines a breach of planning control as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

9. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so. It is for the planning authority to decide whether it is expedient to take action.

Key events

10. Mr C contacted the Council in October 2018 to say a completed development near his property appeared to be higher than surrounding properties and suggested the fence line showed a 300mm difference in height. The Council acknowledged Mr C’s report of a suspected breach of planning control and provided details of its enforcement policy and timescales for its investigation.
11. The Council visited the site in October and considered the approved plans and building control records. The Council has provided photographs from this visit. The Council found no evidence of the raising of land levels or a breach of planning control. The Council noted a difference in the ground levels where the new development met the boundary of Mr C’s property and explained this may be due to the levelling of the site which had been several different rear gardens. The Council confirmed there was a difference of approximately 200mm between the development road and neighbouring property. The Council was satisfied the development had been constructed in accordance with the approved plans. The Council wrote to Mr C with its findings.
12. Mr C asked to meet the Council on site. The case officer met Mr B on site during November. The case officer confirmed the site did rise but that this may be the natural slope of the land. The case officer confirmed the difference in height was in keeping with the land levels shown on the topographical survey.
13. Mr C remained unhappy with the outcome of the Council’s enforcement investigation. The Council responded to Mr C in December at Stage 1 of its complaints procedure and confirmed there were slight changes in the land levels (approximately 200mm at the highest point). The Council considered the nature of land level change to facilitate construction would be deemed as deminimus and not require planning permission. The Council confirmed it was satisfied the development was in accordance with the approved plans and considered the matter concluded. There followed a further exchange of correspondence in January 2019 along similar lines.
14. The Council opened a new case in March 2019 as a new development had been started nearby and it was anticipated there may be further land level issues reported. The Council visited the site in March 2019. The Council has provided photographs from the visit.
15. The Council visited the new site again in April to establish the potential height difference there might be between the new site and the complainant’s garden. The officer carried out a rough test that suggested the new site should not be more than the thickness of a brick difference in height. The Council has provided photographs of this visit. The Council closed the case as there was no evidence the land levels would be materially different.
16. The Council wrote to Mr C at the final stage of its complaint procedure in April about both development sites and provided the reasons for its view there was no material increase in the land levels. The Council also confirmed that where there were no significant level changes it did not impose conditions requiring surface water drainage details as such conditions would not comply with the National Planning Policy Framework. This would be a matter for Building Control.

My consideration

17. It is not for us to substitute our judgement for that of the Council’s officers. Instead we examine the process leading to the Council’s decisions for evidence of fault.
18. I do not consider there has been fault in the process that led to the Council’s decisions here. This is because the Council: inspected the site; considered information it held including the approved plans and topographical survey; met with Mr C on site and considered the information he supplied in reaching its decision there was no breach of planning control.
19. I am satisfied the Council had regard to the relevant matters and had enough relevant information to reach its decision. In these circumstances, there are no grounds on which I can question the merits of the Council’s decision. I have also seen no other evidence of fault by the Council such as undue delay or a failure to keep Mr C informed.

Back to top

Final decision

20. I have completed my investigation as I have found no evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman