Summary: The Ombudsman found fault on Mr D’s complaint about the way it dealt with his report of a neighbour building an extension higher than consent allowed. The Council took 4 months to correctly identify the full extent of the breach during which time it failed to provide satisfactory details about the measurements it took during its investigation. The agreed action remedies the injustice caused.

The complaint

1. Mr D complains the Council failed to:
1. properly and promptly investigate his report of a neighbour building an extension higher than consent allowed;
2. identify the breach when an officer visited to measure its height; and
3. keep him informed about its investigation.
2. As a result, he was put to the time and expense of employing a surveyor before it would agree there was a breach. The breach impacted on his amenities as the neighbouring property was overbearing and reduced light to his home.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I considered all the information Mr D sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I could not send him a complete copy as the Council sent information that needed to remain confidential. This is because it involved third parties. This means I could not send him a copy of it or directly refer to it in this draft decision. I sent a copy of my draft decision to Mr D and the Council. I considered their responses.

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What I found

6. In 2016, Mr D’s neighbour successfully applied for planning consent to build a single storey rear extension with internal layout changes. The building works were completed the following year. Mr D rented his property out to tenants and moved back in during February 2019. The following month he contacted the Council as he believed the extension was not built according to approved plans. The problem was a parapet wall built on top of the extension’s flat roof at the boundary. This was not on approved plans and increased the height of the extension by 0.45m, causing loss of light to his property.
7. Mr D says a Council officer visited (visit 1) on 11 April 2019 and inspected the extension, finding no breach. The Council rejects this claim although accepts there was an error during this visit with measurements. It confirmed the parapet wall was not shown on approved plans.
8. The Council sent photographs taken during the visit and a copy of an email the officer sent Mr D the following day. This said the extension breached planning consent as it is higher than approved. The email told him the Council was assessing this breach and what course of action it should take.
9. At the end of the month, the enforcement manager wrote to Mr D saying he had spoken to the officer who visited. They agreed for the officer to carry out a further site visit to ensure, ‘all measurements are taken from the original ground level at the site’.
10. The inspection took place on 2 May (visit 2). This found the extension within approved dimensions. While the parapet was 5cms too high, this did not justify enforcement action.
11. On 14 May, the officer emailed Mr D saying the overall height to the flat roof did not exceed the permitted height. While the approved plans show no parapet wall, its height meant the Council had no basis to take enforcement action. Two weeks later, the officer again confirmed the view it was ‘not expedient’ to take formal action.
12. In June, Mr D instructed an independent planner (the agent) who reviewed the case. The agent noted the removal of steps down to the neighbour’s garden and building the extension level with the dining room’s existing floor, created the problem. The problem was the extension was higher than shown on the approved plans when measured from the original ground level. The agent’s fees were £200.
13. The Council agreed to carry out a further visit on 25 July (visit 3). After the visit, officers held a meeting with Mr D and his agent. Three days before this visit, Mr D instructed a solicitor for advice.
14. The Council sent a senior planning enforcement manager who found the parapet wall 0.45m higher than the height of the approved flat roof. The officer wrote to Mr D at the end of the month saying he would now approach the owner to remove the parapet. The email did not explain how the overall height of 0.45m was reached (the flat roof was 15cms higher than approved and the parapet was 30cms).
15. Mr D’s solicitor charged £1,458 for work carried out up to the end of August. Towards the end of the month, the neighbour sent the Council a retrospective planning application to keep what was built.
16. In October, the Council refused the neighbour’s application. The planning officer’s report confirmed the height of the flat roof was 0.15m higher than approved with the parapet wall 0.30m above the increased flat roof height. The combined height increase was 0.45m. The height of this parapet had the potential to reduce daylight to Mr D’s property.
17. In November, the Council issued an enforcement notice. This required the neighbour to remove the extension or carry out remedial works to comply with approved plans. The work required was the removal of the parapet.
18. In January 2020, the Council wrote to Mr D accepting the officer who did visit 1 got the measurement of the extension wrong. It accepted measurements on the later visits agreed with his calculation that the extension was 0.45m higher than approved.
19. In March, after another site inspection (visit 4) the Council closed its enforcement case as the neighbour had removed the parapet.
20. The Council explained it exercised discretion to ask the neighbour to reduce the height by 30cms (the parapet) and not reduce the extension itself by 15cms. This was because it decided this reduction was enough to address the reasons why it refused the retrospective application. Put simply, it would resolve the concerns about the impact on Mr D’s amenities.

Analysis

21. I make the following findings on this complaint:
1. The parapet, which was visible throughout all visits, was not shown on the approved plans so was always unauthorised development.
2. After visit 1, the officer emailed Mr D to say he had found evidence of a breach but, this would be reviewed by a manager. Following the review, the officer would contact him.
3. Towards the end of April, the Council emailed Mr D saying while visit 1 found the extension higher than approved, it recommended not taking enforcement action. This was because it was not expedient to do so. I have also seen evidence in which the Council said it would not take enforcement action because the breach was ‘minor’.
4. Mr D contested the findings, and specifically the measurements, carried out during visit 1. The officer was instructed to carry out a further visit to measure the extension again. This was partly to do with the parapet and the alteration of ground levels of the patio area.
5. After visit 2, the Council wrote to Mr D and said there was no basis, having taken further measurements, to take formal enforcement action against the neighbour. There was reference to the parapet only being 5cms higher than the overall height approved.
6. Mr D refused to accept these findings and lost confidence in the Council to such an extent he instructed an agent to review the case. He sent the Council a copy of the agent’s report which raised doubts about the extension’s compliance with the approved plans. A senior officer agreed to meet him and his agent. After the meeting, the officer carried out visit 3.
7. The evidence shows it was not until the end of July when the Council identified and accepted the problem of the height and impact of the unauthorised parapet and would seek its removal. It accepted the extension as built did not match what was shown on the plans. The height from the ground level to the flat roof was 15cms higher than it should. Added to that was the 30cm height of the parapet wall which was not shown on the drawings anyway. This took the height of the parapet wall to 45cms from where the height of the flat roof the Council approved.
8. It was only after visit 3 the Council confirmed it would act on the parapet. This was about 4 months after visit 1. While the decision before visit 3 not to take enforcement action is usually a decision we would say came down to merits, (one for the professional view of officers), on balance, I am satisfied visits 1 and 2 failed to take account of the height differential fully and properly between what had been built and what was approved. This is because it was only after visit 3 the Council referred to the parapet’s height, which included the 15cms increased height of the extension. Rather than the parapet being 30cms above the approved flat roof height, the Council accepted it was 45cms. I consider these failures amount to fault.
9. I am satisfied the fault caused Mr D an injustice. He was caused avoidable distress, which included a loss of confidence in the Council, frustration, and inconvenience. He also felt he had to instruct an independent planner for advice and assistance. In the circumstances, I am satisfied this was a justifiable response. The removal of the parapet could have been achieved 4 months earlier but for the fault.
10. At the end of July, the Council told Mr D it would be contacting the neighbours about removing the parapet. It would have been good practice for it to have also clearly explained whether it was likely to seek a reduction of the height of the extension by 15cms. This would have clarified the extent of any possible future enforcement action, or remedial action the neighbour needed to take.
11. Mr D instructed a solicitor three days before visit 3 and about a week before the Council told him it would contact the owner about removing the parapet. I consider once the Council told Mr D it was approaching the owner about the removal of the parapet, he needed to await the outcome of that contact, and later the retrospective application. While I can appreciate why Mr D felt he needed legal advice, I am not satisfied the Council should meet all the legal costs he incurred but only a contribution towards the fees incurred from the date of the solicitor’s instruction, to the date the Council made him aware of its intention to contact the neighbour.
12. I took account of the Council raising, reviewing, and correcting, the initial method of taking measurements with the officer.

Agreed action

22. I considered our guidance on remedies.
23. The Council will, within 4 weeks of the final decision on this complaint, carry out the following action:
1. Send Mr D a written apology for its failings to identify the correct overall height and impact of the parapet sooner.
2. Remind officers visiting sites in these circumstances to provide clear information about measurements taken to complainants in their response and to also explain what breaches they may or may not pursue in terms of enforcement.
3. Reimburse Mr D the agent’s fees of £200.
4. Pay Mr D £250 for the avoidable distress the fault caused him.
5. Pay a contribution of £50 towards Mr D’s legal costs. This includes the £9 disbursement the solicitor’s invoice shows was incurred shortly after instruction and a contribution towards the costs of the initial client care letter sent to him.

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Final decision

24. The Ombudsman found fault on Mr D’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman