Summary: There was no fault by the Council in how it handled planning breaches at a house next to Mr B’s home since 2017. It properly considered how these impacted on Mr B when it decided the retrospective application. It addressed the disputed ground levels by commissioning an independent surveyor to assess that the approved plans were accurate.

The complaint

1. Mr B complains about how the Council dealt with planning applications and breaches of planning control at the site of a new house close to his home. The events Mr B complains about date back many years and the breaches have largely been regularised by retrospective planning permissions in 2017 and 2019.
2. In particular Mr B says the Council:
• Approved a dormer window when it had previously refused this;
• Allowed an unauthorised extension (orangery) to the new house in place of the approved conservatory;
• Allowed the ground levels to be higher than approved;
• Did not properly consider retrospective applications with the effect that it has authorised work that it had previously refused; and
• Failed to take enforcement action on the unauthorised dormer window and when the applicant failed to lower a parapet wall.
3. Mr B says the new house impacts on his privacy and light. He has been frustrated by his dealings with the Council, particularly as it has allowed his neighbour to alter aspects that might mitigate the impact on him.

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What I have investigated

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. In this case, Mr B has described that he had continuously worked with the Council and at various key points had thought that breaches would be rectified and those aspects of the scheme designed to mitigate the impact on him, would be implemented. This was good reason for him not to complain to the Ombudsman sooner.
6. On that basis, I am persuaded that I should exercise discretion to investigate Mr B’s complaint. However, I am limiting my investigation to the Council’s handling of the planning and enforcement issues since 2017. This takes in the two most recent applications that sought to regularise planning breaches. There is little merit in investigating breaches that have been regularised by retrospective permissions in 2017 and 2019, providing that there is no fault by the Council in how it dealt with these applications.
7. Mr B, and his representatives have asked me to extend my investigation to events from 2015. I have explained below why I have not done so.

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The Ombudsman’s role and powers

8. 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)
9. 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

10. I considered the information provided by Mr B, including his photographs of the new house and copies of his emails with the Council, and I discussed the issues with him. I considered the information provided by the Council including the planning documents, the enforcement files, and the independent survey. I have also listened to the audio recording of the 2019 planning committee (the earlier meetings were not recorded). Both parties have had the opportunity to comment on a draft of this statement. The Council had no comment. Mr B and his representatives have sent me comments and I have considered these before reaching a final decision. I have addressed these comments in this statement.

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The law and guidance

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)

12. This means that a council can invite the applicant to submit a retrospective planning application to regularise unauthorised development.

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What I found

Background

13. Mr B lives in a bungalow in a residential area. In 2012, the Council granted planning permission for a two-storey house on the plot next to Mr B’s home. Both rear gardens slope downwards away from the dwellings, from front to back. The new house is sited forward of Mr B’s bungalow and so he is most affected by the rear section of the house. The separation distance between the two homes is 2.5 metres. The Council negotiated several amendments to the neighbours scheme to reduce any overbearing of Mr B’s bungalow. This included that the whole house would be set down in the ground by 50cm to reduce overbearing the neighbouring homes. In addition, the rear extension of the house would be stepped down so that the finished floor levels were lower than Mr B’s home, and the roof of the rear section would be pitched.
14. As the build proceeded, it became clear that it was not in accordance with the planning permission. Mr B said the house was not set down by 50cm, floor levels were wrong, the rear extension was not stepped down and had a flat roof so that it was higher in parts than the approved design. The Council says it checked the ground levels at the front of the house when the build first started and found them to be in accordance with the approved plans. However, the neighbour had not stepped down immediately outside the rear extension, and Mr B sent the Council photographs that he says establishes the rear extension is nearly 30cm too high.
15. In 2015, the neighbour applied for permission to keep the flat roof of the rear extension and amend other aspects of the design. The neighbour did not expressly apply to alter the stepping down of the rear section. The Council granted a retrospective planning permission to allow the neighbour to keep the flat roof of the rear extension. This planning permission also effectively allowed the neighbour to reduce how much the rear extension was stepped down, maintaining the same floor level onto the patio immediately outside the rear extension, before stepping down into the garden. Mr B said that the 2015 planning permission effectively removed the safeguards given by the 2012 permission.

2017 enforcement action and retrospective application

16. The build continued. In 2017, the neighbour proposed a conservatory adjoining the rear extension, but actually built a further extension (described as an orangery). This meant that the rear part of the house extended further before stepping down. With the slope of Mr B’s plot, the impact is that the rear part of the building appears higher in relation to Mr B’s bungalow, than was originally intended. The neighbour also wanted to add a rear dormer extension in the roof space. Mr B complained to the Council about the unauthorised work and that the new house was now even more overbearing and the dormer window impacted on his privacy. He also pointed out that the Council had previously advised the neighbour it would not approve a rear dormer extension.
17. The Council visited the site and halted the work. The neighbour submitted another retrospective planning application to retain the orangery and add the rear dormer extension.
18. The report sets out the officer’s assessment. It says:
• the new design means the ground floor will project a further three metres to the rear than approved in 2015. The orangery will have a mono-pitch roof.
• The Council had already assessed and approved the principle of building a new house on this site. This application is to assess the additional impact of the dormer and the orangery.
• The distance between the new house and Mr B’s bungalow is 2.5 metres. This allows the proposal to avoid over-dominance or significant loss of light by the orangery. The officer refers to the fall in ground level from front to rear of the application plot and Mr B’s plot, but concludes that even with the slope, the impact of the rear extension on Mr B’s amenity is acceptable.
• The rear dormer extension could be added after occupation under permitted development rights. The rear dormer window gives views of Mr B’s garden, but not the area immediately behind his bungalow (which is considered the most important part of the space in terms of privacy). The officer concludes that because of this, the overall privacy of the neighbours is not significantly affected.
• The dormer extension will have a hipped roof and is lower than the ridge roof line. This means it does not add to the impact of building or make it more overbearing.
19. The Council granted the 2017 planning permission. This allowed the neighbour to keep the dormer window and the orangery, making the rear extension longer and without the step down that had been originally required.

2018/19 enforcement action and 2019 retrospective application

20. The neighbour built the dormer extension but it was not in accordance with the 2017 planning permission. It was larger and had a different roof line so was more obtrusive (although it still did not exceed the roof ridge of the main part of the house). The neighbour had also added a parapet wall to the rear extension which increased the height further, a roof light to the extension and French doors to the front with the intention of making a juliette balcony.
21. Mr B complained to the Council. It visited the site and found the work on the dormer had ceased but that the parapet wall meant the height of the rear extension was higher than approved. The Council found the floor level of the orangery did not step down as it was supposed to and it had a flat roof instead of a mono pitched roof. Again, the Council asked the neighbour to stop work and submit a retrospective application so that it could properly consider these changes.
22. The Council met with Mr B and a councillor supporting him. They discussed concerns about the ground and finished floor levels and the impact on Mr B, as he felt the new house was now higher than it should have been.
23. The Council met the neighbour and her architect on site. The Council told the neighbour that the dormer extension, the flat roof to the orangery and the parapet wall were in breach of the planning permission. It asked the neighbour to stop work and submit another retrospective planning application so it could properly assess all the changes to the scheme it had approved in 2017. The neighbour submitted the planning application in January 2019.
24. To address Mr B’s concerns about the levels of the new house, the Council commissioned an independent surveyor to check the accuracy of the plans the neighbour had submitted as part of the retrospective application. The Council officers met the surveyor on site to make sure all of the Mr B’s concerns were addressed.
25. The surveyor concluded that the plans were accurate. I have seen the surveyor’s assessment. It sets out how the surveyor checked the levels of the front of the house against the pavement and street furniture, the finished floor levels against the stated height of the eaves of Mr B’s bungalow, the height of the house against the neighbouring properties, and the ground levels against the plans. The surveyor’s report concludes that ‘the as built plan appears to be an accurate record of the levels of the building’.
26. The Council has not shared the survey with Mr B but has shared the results of this. He maintains the levels are wrong because the rear extension does not step down and the eaves of the front of the house do not appear to be at the correct height relative to the neighbouring property.
27. The Council visited the site to assess the impact of the dormer extension and the orangery on Mr B. Officers went inside the house and considered views from the dormer and rear windows. It also considered views from the rear patio into Mr B’s garden and decided that screens would prevent overlooking.
28. The Councillor referred the retrospective application to the planning committee so it could be considered by Members. Members visited the site before the committee meeting. The planning officer’s report to the committee says:
• The principle of development had already been established by the earlier planning permissions. This application sought permission to keep the flat roof of the orangery; to keep the roof line, size, and design of the rear dormer extension; to keep the parapet wall on the rear extension but lower this; and erect screens to the patio to restrict views into Mr B’s garden.
• The applicant had submitted a plan showing the side elevation facing Mr B’s bungalow and how this had altered with the various planning permissions. The overall height of the new house is less than originally granted. This application will see the unauthorised parapet walls reduce in height that is already built to mitigate impact on the neighbour.
• The design of the dormer extension has been revised to be less dominant but a significantly larger dormer could be built under permitted development rights.
• The parapet wall runs parallel with Mr B’s house. The report outlines the dimensions of the wall. The Council says that the location of the wall to the side and the distance from Mr B’s bungalow means it avoids over domination and significant loss of light to the secondary lounge windows. The Council has also taken into account that permitted development rights would allow a flat roof extension of three metres on the boundary which would be more intrusive for Mr B.
• The change of the orangery roof from mono-pitch to a flat roof is most apparent from a habitable room of Mr B’s home. But this is not a significant change in design, as the mono-pitch roof already permitted under the 2017 permission is a very shallow gradient. The flat roof means the lowest part of the pitch roof has been raised by 250mm. The officer concluded that the flat roof does not cause a significant degree of over-dominance or loss of light.
• The patio screens are opaque so light can pass but privacy is protected. The council considered the screens would not be overbearing given the scale and distance from the boundary.
• The view from the rear dormer window are similar to the other rear windows of the first floor. There are no windows to the side and so no overlooking from the new house to the part of Mr B’s garden closest to his home.
• There have been concerns about the accuracy of the plans particularly around the ground and finished floor levels. The independent surveyor confirmed the plans are accurate and so the Council has used these to assess the current application.
29. The report says that the changes under the 2019 application in excess of what was already permitted under the earlier planning permissions, are ‘not significantly detrimental to the amenities of neighbouring residential properties and are not considered to cause loss of light…or cause a significant degree of over-dominance beyond that already approved.’
30. The report concluded that although there had been incremental changes and breaches of planning permission, the current proposal is acceptable and the officer recommended the committee grant planning permission. However, the permission should remove permitted development rights so that any further changes will need to be considered by the Council.
31. I have listened to the audio recording of the planning committee. The officers outlined the application and showed the plans and photographs including views from the dormer window. The officer summarised the report.
32. Mr B addressed the committee outlining his objection. He said the design bore little resemblance to what was originally approved. The rear patio is 30cm too high, the ground levels are higher than approved, the dormer extension had been previously refused, and plans of the earlier permissions had been misleading and concealed certain additions such as the parapet wall. Mr B said there had been no enforcement action by the Council since 2015.
33. The Councillor who had been supporting Mr B for some time, addressed the meeting. He told members there were solid policy grounds to refuse the application. He said the design is not high quality and does not make a positive contribution to the area as required by the local planning policy. The Councillor said he was concerned about the new house being over dominant. He recommended the committee refuse the application as it does not go far enough to mitigate the impact on Mr B, who would be willing to discuss a more sympathetic design.
34. The Members debated the application. In summary, they asked for clarification on the enforcement action and whether the Council could guarantee there would be no more changes to the design. The officers confirmed that the retrospective application was a result of its enforcement investigation but there had been no formal enforcement notices served. It also made clear that removing the permitted development rights did not guarantee there would be no further changes, but would allow the Council more control over these.
35. Members remarked that the whole house was overbearing and asked what would happen if they refused the planning permission. The planning officers made clear to Members that it was only the additional changes under consideration, and that the earlier planning permissions were valid. If they refused the current planning application, then the neighbour could still keep the major parts of the house in accordance with the 2017 planning permission. They said that the fact that the new house is mostly built meant they had a really good understanding of whether it was acceptable.
36. Members expressed concern that the rear section of the new house was over-dominant and that the dormer extension was too big and would impact on Mr B’s privacy. The officers confirmed that the current application would reduce the size of the dormer extension. They outlined their assessment that the impact on privacy was acceptable, the dormer window allowing views into the back of the rear gardens.
37. The Council granted the planning permission and permitted development rights were removed.
38. The Council visited the site in March and August 2020, the Council found that the dormer extension had been changed but was now clad in wood and so did not meet the approved plans. The neighbour had reduced the parapet wall but not by enough. The Council intends to proceed with formal enforcement action to resolve these issues.

Was there fault by the Council causing Mr B an injustice?

39. The new house clearly impacts on Mr B. I can understand that it is frustrating that the design has changed, and elements that were agreed to protect his amenity have now been altered. However, my task is to decide whether there was any fault in how the Council reached decisions on the retrospective applications in 2017 and 2019.
40. Overall, I am satisfied that there was no fault by the Council. It has properly investigated all breaches of planning permission and reached decisions based on all the relevant factors. I have set out my analysis in more detail on each part of Mr B’s complaint.

Approved a dormer extension when the Council had previously refused this

41. The Council approved the dormer extension as part of the 2017 application. It is clear from the officer’s report that the Council considered the impact on Mr B’s privacy. This was assessed again when the Council approved a different design of the dormer extension. The report refers to the views into Mr B’s garden but concludes that these are acceptable because it allows similar views as the first-floor windows, mainly to the rear part of the back garden. The Council has explained that this part of the garden is considered less private than that nearest to a home, and so it found this to be acceptable. The Council’s assessment was aided by the fact that the dormer was already built. This allowed the Council to properly understand the impact on Mr B’s privacy.
42. The Council understood the dimensions and position of the window and the dormer itself. It decided that it would not make the house more dominating than the design it already approved, because the dormer extension would be lower than the roof line of the main part of the house. The Council properly considered the impact of the dormer extension on Mr B, it has taken into account his privacy, and that a dormer would ordinarily be allowed without express planning permission. There is no fault in its decision-making.

The Council allowed an unauthorised extension to the new house in place of the approved conservatory

43. The Council specifically considered the impact on Mr B’s amenity when it approved this in 2017. The officer’s report clearly shows the Council understood the distances from Mr B’s home and the sloping ground levels. It properly considered all the relevant factors including the impact on Mr B before deciding to allow the orangery.

The Council allowed the ground levels to be higher than approved

44. Mr B has explained that originally these were supposed to be stepped down inside the house, to take account of the sloping site. But the neighbour has built the rear part of the house and the orangery on the same level with the step down outside of the house. Mr B says that this means the floor levels are higher than approved. Mr B also raised concerns about the ground level of the main part of the house and that this should have been set down by 50cm to bring the whole house lower.
45. Changes to the floor levels of the rear section of the house were approved in 2015 and 2019. The approval in 2015 is not within the scope of my investigation, for the reasons set out below.
46. The changes no longer steps down as it was meant to but this is no longer a breach of planning permission . The finished floor levels have changed with the 2015, 2017, and 2019 planning applications. The changed floor levels were clear from the plans and in 2019, from what had been built and so the Council had a clear understanding before it passed planning permission.
47. The Council has addressed the issue of disputed ground levels and roof height. It contracted an independent surveyor who checked the plans submitted with the retrospective application in 2019 against the as-built house, in terms of its height and topography. I have seen the surveyors report which confirms the plans accurately show the ground levels, and roof height. This allowed the Council to rely on the plans when it granted permission.
48. Mr B says the neighbour should have submitted a plan showing the front elevation of the new house against the neighbouring houses so that the Council could see the relationship between them. However, the officers and members visited the site and as the house was already built, they were able to see and assess the relationship between the buildings.
49. In terms of the ground levels at the front of the house, the surveyor measured these against the pavement and street furniture. He also compared the eaves against the neighbouring property. The surveyor confirmed the ground levels are correct.
50. There is no fault by the Council. It took independent advice as well as making its own inspections. The Council had a clear understanding of the design it approved in 2017 and 2019, and properly considered the impact on Mr B.

The Council did not properly consider retrospective applications with the effect that it has authorised work that it had previously refused

51. The retrospective planning permissions have altered the design of the new house. I can see why Mr B is disappointed with this. However, the Council has to consider the design put to it. The key question then is whether the Council properly considered the various aspects of the new design, such as the dormer extension, the orangery, the changed roof, and floor levels of the rear extension.
52. The Council considered the impact on Mr B at the site visits, in its planning reports and at the committee meeting. It is clear from its reports and notes that it properly understood the site, it had the benefit of the fact that the new house was already built and so the impact was clear. There is no fault in how the Council decided these applications.

The Council failed to take enforcement action on the unauthorised dormer extension and when the applicant failed to lower a parapet wall

53. The Council visited the site and decided that neither the dormer extension nor the parapet wall meet the 2019 planning permission. It intends to visit the site again and if these are not resolved, it will take formal enforcement action.
54. Although we would usually expect action to be taken by now, the COVID-19 restrictions have made it more difficult for the Council to properly assess the breach. The Council has to make sure it has sufficient evidence of the breach and that it is causing harm before it can take this action, and so on balance, I am satisfied the Council has taken reasonable steps to address these breaches.

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Final decision

55. I have completed my investigation. There is no fault by the Council.

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Parts of the complaint that I did not investigate

56. The planning applications go back many years. I exercised discretion to investigate Mr B’s late complaints because it is clear that he had been trying to resolve these and had thought at various stages that these would be resolved. However, I have not investigated how the Council handled planning matters before 2017.
57. Mr B’s has complained about the how the Council decided the 2015 planning application. Mr B had already raised concerns that the house had not been set down in the plot by 50cm and that the rear section was not stepped down in accordance with the 2012 planning permission. Mr B complains the Council did not address these concerns when it granted permission for the new design in 2015, and so these changes were authorised without due consideration.
58. However, Mr B knew of the planning permission in 2015 and that it had effectively authorised changes to the floor levels of the rear section. There is no reason why he did not complaint to the Ombudsman sooner about this.
59. Any breaches of planning control after 2015 were regularised by the 2017 and 2019 planning applications, and so there is no need for me to investigate the Council’s actions between 2015 and 2017.

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Investigator's decision on behalf of the Ombudsman