Summary: The Ombudsman found fault by the Council on Mr and Mrs B’s complaint about its failure to properly investigate their reports of breaches of planning control on a neighbouring housing development site. The Council failed to properly explain how it decided there was no breach following 2 site visits. It failed to identify the higher floor levels and took too long to conclude there was a breach of planning control after all. The agreed action, and the actions the Council has now taken, remedies the injustice caused.

The complaint

1. Mr and Mrs B complain about the Council’s failure to properly investigate and confirm breaches of planning consent on a housing development site near their home for 9 months; as a result, they were caused a great deal of frustration and stress during this period pursuing their reports.

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The Ombudsman’s role and powers

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)
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)

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How I considered this complaint

4. I considered all the information Mr and Mrs B sent, including a photograph, the notes I made of my telephone conversation with Mrs B, and the Council’s response to my enquiries, a copy of which I sent them. I also sent a copy of my draft decision to Mr and Mrs B and the Council. I considered their responses.

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Planning law and guidance

5. A breach of planning control means:

• 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. (section 171A Town and Country Planning Act 1990)

6. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
7. The government’s guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This states:

“Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development, and take action where appropriate.’’

8. Councils have a choice of different enforcement options to secure a satisfactory remedy for a breach of planning control. Not all cases will, therefore, be dealt with in the same way. The options range from no formal action, applying for retrospective planning permission, to formal action such the serving of a breach of condition notice or an enforcement notice.

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Council’s Enforcement Policy (August 2015)

9. Its policy states enforcement action is not taken against all breaches of planning control. It is only taken where the Council considers it necessary to remove or remedy a breach of planning control or the harm being caused. Taking such action is entirely at its discretion.
10. In all but the most serious of breaches, it will try to resolve breaches through negotiation instead of taking formal enforcement action. The policy sets out 6 possible options after a site visit ranging from no action, through to prosecution proceedings.
11. One of the options includes requesting a retrospective planning application to regularise the works. This is done where the unauthorised development is considered acceptable when judged against local and national planning policies or would be through minor changes or alterations to the scheme.

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What I found

12. Mr and Mrs B have lived in their home for many years. Between them and an area of disused land to the rear (the site) is a neighbouring property whose narrow garden tapers in towards the rear. They received notification from the Council about an application to develop the site for housing and sent representations against the proposal. The Council granted consent.
13. During the construction of the nearest house, Mr and Mrs B told the Council of their concerns about the land levels on site. They told the Council about their concern of the nearest property being built higher than consent allowed which affects sunlight and daylight to their property. Mr and Mrs B are unhappy because, despite various enforcement officers visiting, none identified a breach. Officers repeatedly told them there was no breach of planning control.
14. Mr and Mrs B believe the Council deliberately lied about the levels officers checked. This was because they later found out officers did not possess the proper equipment to measure land levels. Without this equipment, officers could not say whether there was a breach.
15. They complain it took more than 6 months for the Council to accept the land levels were incorrect and the nearest property was built higher than shown on approved drawings.
16. The following site visits took place:

• January 2020: An enforcement officer visited and measured the distance from the nearest plot to the side of the site, the height of the first plot’s dwelling, its size, and to the rear boundaries of Mr and Mrs B’s house. The officer found the measurements complied with those on approved plans. I have seen the notes made of this visit and the photographs taken.

The officer told Mrs B of the findings and said he had visited to, ‘measure what has been on site and compare that with the approved plans’. The officer also told her he had, ‘assessed ground levels in the site with the site boundary walls and floor levels to the new dwellings’. The officer said these, ‘came back the same as what was shown on the approved plans’. The officer closed the case.

• June 2020: I have seen the site visit note made, as well as photographs taken, during this visit by 2 enforcement officers. The note states on the previous visit, the officer used a laser but, this time they counted bricks to calculate the property’s height. It recorded there, ‘has been no altering or raising of levels’.

They counted the bricks in the houses completed to confirm their heights and decided they were correct but, recorded it would need a full site survey to be totally sure. The record noted, ‘using the naked eye, and assuming the original survey on the [planning permission] is correct, then no issue here’. They also decided the completed floor and garden levels appeared correct. The officers concluded the development appeared correct and built according to the plans. They decided no further action necessary.

17. In July, the Council wrote to Mr and Mrs B after they contacted their councillor. The Council told them officers visited the month before and the dwellings were measured. They were the correct height, in the correct positions, and the ground level had not been raised. The same month, the Council contacted the developer about the site levels. The developer measured the land levels and confirmed the finished floor levels were, ‘out by approx 35cm’. The site had not been excavated properly.
18. The Council decided formal enforcement action was not justified and invited the developer to send a retrospective planning application to get approval for what was built. The developer did so, and the Council approved the application.
19. In August, the Council apologised to Mr and Mrs B following their complaint about its actions. It said no intentional errors were made in the assessments. Officers tried to assess the finished floor levels, using the existing boundary wall as a guide. The discrepancy was, it accepted, not readily visible. It was only because of their continued concern that the survey was done which found the excavation incorrectly done.
20. The Council also said: it had introduced additional processes to further review officer enforcement recommendations; additional training will be given to enforcement officers to provide them with support; it will place the onus on developers to show they are building according to approved plans; it apologised for the failures to spot the finished floor levels earlier. It also explained it does not have the expensive survey equipment which needs using by technical specialists.

Analysis

21. When there is a breach of planning consent, the Council may decide to take enforcement action. This is a discretionary power.
22. By failing to build the houses according to approved plans, the developer breached planning consent. This was because one condition of the consent the Council granted said the development shall be carried out according to the plans and drawings provided, which it listed. As the initial excavation of the site was not done properly, this meant the heights shown on the approved drawings were not complied with.
23. I make the following findings on this complaint:
1. Following the first site visit, the officer emailed Mrs B and told her he had been on site to, ‘measure that has been on site and compare that with the approved plans’. The officer confirmed what was built complies with approved plans.
2. While I accept there is a difference between the words ‘measure’ and ‘assess’, which he later used in the email about land levels, this distinction may not be readily clear. It may have given the impression the measurements the officer took during the visit were the ones he went on to assess, including the land levels as he concludes by saying all the, ‘measurements came back the same as what was shown on the approved plans’.

If the officer had not measured the ground levels, and only assessed them visually as the Council said in its response to my enquiries, this should have been made clear to Mr and Mrs B. I consider the Council’s failure to properly explain what was measured, and what was not, in these circumstances amounts to fault.

3. The second site visit note makes it clear the ground levels were not measured but assessed visually. I am not satisfied this was explained properly to Mr and Mrs B either when the Council wrote to them after the visit. This is because the letter referred to officers measuring the dwellings and their height. It went on to note they were in the correct positions and the ground level of the site was not raised. This gave the impression the ground level was measured when it had not. I consider this is fault.
4. Officers failed to identify the discrepancy with the floor levels during 2 site visits. This is fault.
5. While the dimensions of the buildings themselves might be accurate, the fundamental problem was the ground level was incorrect. This was because of a failure to excavate to the required depth before construction started. In turn, this meant the internal floor levels were 35 cms higher than shown on approved plans.
6. I consider it took too long for the Council to resolve Mr and Mrs B’s report of the breach of control. It took 8 months before the Council could say for certain whether there was or was not a breach of control. This is fault.
7. I am satisfied the fault caused them avoidable injustice. They were caused distress as they were put to the time and trouble of pursuing their reports, experienced uncertainty throughout this time as to whether the Council’s conclusions were correct, suffered inconvenience and frustration, and lost confidence in the Council’s enforcement capabilities.
3. In response to my draft decision, the Council said it recognised the enforcement team was extremely stretched but, it has now put significant additional resources in to it. It also recognised the pressure officers were placed under and so it also introduced measures to help with the management of their workload.

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Agreed action

25. I considered our guidance on remedies.
26. The Council agreed to pay Mr and Mrs B £200 for the avoidable injustice the fault caused within 4 weeks of the final decision on this complaint.
27. In response to my draft decision, the Council confirmed it took the following action:

• It re-assessed how officers do site visits and asked officers to make fewer visits on a particular day so they can type up site notes and take actions sooner;
• Enforcement cases are discussed regularly anyway on one-to-one meetings for complex and significantly harmful cases;
• Enforcement officers were reminded they can ask developers to show compliance with approved plans which is supported by planning officers securing existing and proposed topographical surveys at the application stage; and
• It sent a copy of a ‘Training Note’ for planning and enforcement officers about monitoring compliance with approved ground levels and building heights. This states: planning officers have been asked to request existing and proposed topographical surveys in written responses to pre-application enquiries and to request these during the determining of planning applications to either confirm there are no proposed changes in ground levels or to assess the impact of any proposed changes; as a starting point, the height of a building can be roughly assessed by counting the number of brick courses but, it is only a guide in the first instance; this technique does not allow officers to confirm whether the development is built off the correct ground level; if in any doubt, officers can ask the developer to carry out, and provide, surveys to show the definitive height of the development.

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Final decision

28. I found fault on Mr and Mrs B’s complaint against the Council. The agreed action, and the action taken, remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman