Harrogate Borough Council (19 017 466)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 24 Nov 2020

The Ombudsman's final decision:

Summary: Ms Y complains about the development of a new housing estate behind her property, which she says has not been built in accordance with the approved plans. The Council considered Ms Y’s report of a possible breach of planning control, visited the site and measured the height and elevation of the houses being built. It decided there was no breach to enforce against. The Council followed its policy when considering whether to take enforcement action, and we do not uphold the complaint.

The complaint

  1. The complainant, Ms Y, complains that new houses behind her property were not built in accordance with the approved plans, and as a result the houses have an unimpeded view into her home. She complains the Council has not used the appropriate measurements when assessing the height and overall elevation of the houses and deciding whether there was a breach of planning control to enforce against.
  2. Ms Y says her privacy has been significantly affected because of the development and she fears that her property is now unsaleable.

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What I have investigated

  1. I have investigated how the Council responded to the reported planning breaches, and how it arrived at the decision not to take enforcement action. I have not investigated the decision to grant planning permission for the development complained about. My reasons for not doing so are explained at the end of this statement.

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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. 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

  1. During my investigation I made contact with Ms Y and considered any information she submitted. I made enquiries of the Council and considered its response.
  2. I consulted any relevant policies, guidance and law about planning enforcement. I also considered the Ombudsman’s ‘Guidance on Jurisdiction’ when deciding the scope of my investigation.
  3. I issued a draft decision statement and invited comments from Ms Y and the Council. I did not receive any comments from either party.

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What I found

Grant of planning permission

  1. The Planning Inspector (PI) acts on behalf of the Government. Among other things, the PI considers appeals about delays in determining planning applications and decisions to refuse planning permission. The Ombudsman does not have jurisdiction to investigate decisions made by the PI.
  2. In 2015 a housing developer submitted plans to build an estate near to Ms Y. The Council and developer deliberated for many months, and in 2017 the developer submitted an appeal to the PI because the Council had taken too long to decide the application.
  3. The Council prepared a report for the PI’s consideration. The report set out the case officer’s analysis of the application, and the decision the Council would have made, had it determined the application.
  4. The report recommended refusal of the application. It concluded that the proposal did not meet community needs because it did not “… provide for a mix of open market housing based on current and future demographic trends, market trends and the current and future needs of different groups in the community”.
  5. The PI took a different view and granted planning permission at appeal in 2017.

Planning enforcement

  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. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 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.
  2. Government guidance says it is important for councils to keep documentary evidence of any investigation undertaken.
  3. In October 2019, Ms Y and others contacted the Council to relay concerns about the development. Ms Y said: “houses are being built more closely to us, and are much more dominating, than it had appeared in the plans… we are directly overlooked, and we no longer have any privacy – even in our bathroom (we are going to have to get patterned glass, which we have never needed before)”
  4. The Council wrote to Ms Y on 28 October to confirm it had logged the reported breach and that it would write to her again within 28 days.
  5. The Council’s files show that an officer visited the site on 1 November 2019. The officer took photographs and noted their assessment. They concluded: “homes only completed to eaves level, roof not been built. Elevations are as submitted.”
  6. The Council ended its enforcement investigation on 6 November 2019 because it was satisfied there was no breach of planning control for it to enforce against. The Council relayed its decision on the same day:

“I assessed the elevation and the construction of the housing up to the eves level as that is all that has been currently constructed, at this stage they have been built as approved from the plans above, just to confirm the housing style is for a 2 storey terrace. Unfortunately it would not warrant the commencement of any further enforcement action”

  1. Dissatisfied with the outcome, Ms Y formally complained to the Council. She said when permission was granted, the existing elevation of the property was not considered in comparison to other nearby properties which now experience a total loss of privacy. This is because the new development is on higher ground.
  2. The Council responded to Ms Y’s complaint and pointed out that it did not approve the initial plans; this was a decision made by the Planning Inspector. The Council’s only role was to oversee the discharge of conditions applied by the PI and to deal with any planning enforcement queries.
  3. Ms Y submitted a complaint at the second and final stage of the Council’s complaints process, she said, “… my concerns are that the work should not have been approved in the first place as the inspector did not consider crucial elements of the site. I also do not think that the investigation, which was initiated in response to the concerns of another neighbour, actually addressed any of the issues that I raised in my email to you.” Ms Y went on to explain, “I'm not sure if you have seen the two photos that I sent, showing the view from my bedroom and bathroom. These show that - due to the elevation of the land behind us - our privacy has been significantly undermined”.
  4. The Council again considered Ms Y’s concerns but decided not to uphold her complaint. It reiterated the original permission was not a decision made by the Council and that officers had investigated the enforcement concerns raised but decided there was no breach to enforce against.
  5. Ms Y disagreed with the Council’s assessment of her complaint and approached the Ombudsman.

Was there fault in the Council’s actions causing injustice to Ms Y?

  1. In her complaint to the Ombudsman, Ms Y said the Council had not followed the correct procedure when assessing the reported breach. Ms Y says the Council should have measured the height above sea level, rather than slab height.
  2. In response to my enquiries, the Council said: “I am advised by planning officers that we use information provided by the developer regarding spot heights and slab levels and that we do not survey existing sites nor do we have the equipment to record Above Ordnance Data figures”
  3. In my view, the Council’s objective was to consider the houses, as built, against the plans, as approved. I consider it did this and made a professional judgement that the houses were being constructed in accordance with the approved plans. There is no evidence of fault.
  4. Ms Y disagrees with the method of measurement used by the Council, but the Ombudsman cannot interfere with the merits of professional judgement unless there is evidence of procedural fault which undermines that decision. I find no evidence of procedural fault and so I cannot question the Council’s assessment of the alleged breach.
  5. The Council followed its Enforcement Plan; acknowledging Ms Y’s enforcement complaint and providing an update within 28 days. It did so after visiting the site, taking photographs and comparing the works in progress against the approved plans.
  6. I appreciate Ms Y continues to disagree with the approved plans because she says the PI did not consider the impact of the raised ground levels. For the reasons explained in the final paragraph of this statement, I cannot investigate the PI’s decision.

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Final decision

  1. I have completed my investigation with a finding of no fault for the reasons explained in this statement.

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Parts of the complaint that I did not investigate

  1. Ms Y disagrees with the decision to grant planning permission for a housing development behind her home. However, the permission was granted at appeal by the Planning Inspector. The Ombudsman has no jurisdiction to investigate the actions of the Planning Inspector so we cannot consider how the decision was made.

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Investigator's decision on behalf of the Ombudsman

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