Summary: Mr X, complained the Council did not properly consider using its planning enforcement powers to control a development near his home. He also complained that the Council did not properly consider the differing levels on the site when it approved planning permission. The Council said it considered the ground and finished floor levels when it discharged the conditions from the original planning application. In respect of enforcement, it undertook a survey, considered the impact of the development on the setting of the listed building, and decided it was not expedient to exercise its powers. We did not find fault in the actions of the Council.

The complaint

1. Mr X complained that Harborough District Council (the Council) failed to properly consider exercising its discretionary planning enforcement powers to control the development next to his home (the Barn). Mr X says the developer built the Barn higher than shown on the approved plans. Mr X says the Council failed to properly consider the ground levels resulting in the Council measuring heights from the finished floor level.
2. Mr X says the Barn is 800mm higher than approved and its associated garage 1500m. Mr X says this causes an overbearing impact on Mr X’s amenity causing distress to him and his family and affects the setting of his listed home.
3. Mr X wants the Council to correctly measure the height and take enforcement action and to use an independent surveyor to peer review the action taken by the Council’s officers.

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The Ombudsman’s role and powers

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)
5. 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)
6. If 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

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Enforcement powers and guidance

8. Councils have a discretionary power to take enforcement action where there has been a breach of planning control.
9. Section 171A of the Town and Country Planning Act 1990 (the Act) 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.
10. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the planning authority to decide whether it is expedient to issue a notice.
11. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
12. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A of the Act. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court.
13. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’ in which it says

‘’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.’’

14. In deciding whether it is expedient to start enforcement action, councils will consider several factors including national and local planning policies and whether the development as built may be granted planning permission. Councils must balance protecting other residents’ amenity and permitting development they believe is acceptable.
15. In April 2018 the Council adopted its ‘Local Enforcement Plan’ compliant with the NPPF setting out how the Council approaches any unauthorised development. This sets out categories of breaches of planning control and what the Council will do. Under Category 2, if it is not expedient to begin action against a breach the Council may still invite the developer to make a planning application even if the breach does not merit enforcement action. Category 3 where the breach merits enforcement action the Council will allow three weeks for presentation of a planning application and after that may take further action. Category 4 applies where there has been a serious breach of planning controls and it is unlikely the Council would grant planning permission. In this category, the Council moves straight to formal enforcement action.
16. When deciding whether to take enforcement action the Council says it will consider the Local Enforcement Plan, and the government guidance “Enforcement and post -permission matters”.

What happened

17. The Council granted planning permission for the Barn in 2016. One of the elevation drawings showed the Barn and an associated building on level ground with ridge heights from finished floor level of 7.1 metres and 5.8 metres. Another drawing showing the existing site included the actual ground levels, with part of the site nearest to Mr X’s property showing a slope rising 1.5 metres away from his property.
18. The Planning Officer’s notes show they considered in detail the setting and impact of the development and concluded it would not be overbearing or cause unacceptable overlooking to any of the nearby properties including Mr X’s home.
19. The Council’s conservation officer and Historic England did not object to the proposals as they did not consider the development caused any harm to the setting of Mr X’s home, which is a listed building. The Council attached conditions to the permission, one of which required the developer to submit details of the contours and finished floor levels before starting the building work.
20. The applicant submitted an application to discharge several conditions in 2017. This included a drawing showing the finished floor and ground levels across the site including the slope near to Mr X’s property. This application was approved.
21. Mr X says the developer then built both structures 1.5m higher than shown in the plans, due to the existing slope.
22. In July 2020 the Council’s planning officer visited the development. Mr X told the Council’s planning officer the developer had used more courses of engineering blue bricks than shown on the approved plans. This he believed showed the floor level of the garage was above the approved level increasing the building’s height. Mr X told the Council’s planning officer this impacted his home because the new build is visible from his courtyard and affected the setting of his listed building.
23. The Council’s officer met with the builders on site in August 2020. They noted the approved plans show the site as level or flat. They noted there is ‘a substantial increase in height levels…as the land rises up towards the garage building and the back of the site…’. The Council concluded that the finished floor and ground levels were in accordance with the details on the drawing provided for the application to discharge the conditions in 2017. So, it concluded no breach had occurred.
24. Following Mr X’s objections, the Council carried out a survey in October 2020. It says the starting point for the survey was the drawing from 2016 showing the existing site levels and the 1.5 metre difference in ground levels. The Council says that is why it imposed a condition on the planning permission requiring approval of the finished floor levels and contours.
25. The Council’s surveyor found what the Council calls ‘minor insignificant discrepancies in levels.’ The surveyor measured the ridge heights from the finished floor levels, not the ground level. The Council once again concluded there was no breach in planning control as the finished building was in accordance with the details provided in the 2017 application to discharge the conditions.
26. In response to Mr X’s concerns a senior officer from the Council’s planning department reviewed the case. The senior officer considered what the Council would do if it accepted Mr X’s view the development as built was unlawful. To decide whether it is expedient to issue an enforcement notice the Council must consider several issues, including the extent of any departure from the approved plans and whether the Council would approve the development as built. In reaching that view it must consider the impact on residential amenity. In this case it should also consider the impact on the setting of the listed building.
27. The Council’s senior officer visited the site, reviewed the plans and survey results. In reaching his professional judgement the senior officer considered the separation, orientation, and outlook between the properties. He decided the difference in height did not make such a significant impact it would warrant refusal of planning permission. Therefore, it would not be expedient to exercise the Council’s discretionary enforcement powers and issue an enforcement notice.
28. Mr X said the senior officer did not view the development from his property, or anywhere near it and so was unable to see the overbearing impact it has.
29. Addressing the visible rows of blue engineering bricks, the Council says these would be reduced once covered by soil and planting in line with the landscaping proposals. Mr X says the developer cannot put in any effective landscaping without encroaching on his land.
30. The Council refused a further planning permission for changes to the Barn in November 2020. In February 2021 the Council received a planning application for approving among other issues, a ridge height for the Barn of 7.5 metres. Following publicity and consideration of objections the Council granted planning permission on 2 July 2021. This application is not the subject of this investigation but suggests that it is likely the Council would have granted planning permission for higher buildings.

Analysis – was there fault leading to injustice?

31. The first planning application contained information regarding the ground levels on the site and the planning officer visited the site, so was aware of the details and the relationships between the buildings. The Council further controlled the site levels by placing a condition on the permission requiring the applicant to submit details of the finished floor levels and contours of the site. These details were submitted and approved. The Council agrees that the elevation drawing is inaccurate as it shows both buildings on level ground, but it maintains that taking the applications as a whole, it had sufficient information to properly consider the site and the impact on Mr X’s property. Mr X may disagree with this view, but it is not my role to decide if buildings comply with existing planning permissions, and I am satisfied that the Council properly considered the applications.
32. When Mr X complained to the Council about the height of the buildings the Council took steps to consider whether there was a breach of the planning permission and if so whether it was expedient to take enforcement action.
33. In order to reach decisions on these points, the Council commissioned a survey, and a senior officer reviewed the development as ‘built’ or as far as it had progressed. The Council concluded the development had been built in accordance with planning permission, even though it agreed one of the drawings was misleading. It also concluded that, in any event, the finished building did not have a significant impact on Mr X’s listed home or other amenities to warrant enforcement action.
34. Mr X disagrees with the decision reached, but I have not found fault with the way it was made. I have also taken into account the fact that there is no overlooking of Mr X’s property and the associated building (which directly faces his property) is over 20 metres away. Even though the senior officer did not visit Mr B’s property, they had the benefit of the plans, the aerial photographs within the plans, digital images from internet maps and photographs taken by Council as well as those submitted by Mr X. The recent planning approval also suggests that the Council would approve the completed development, even with the increase in height.
35. In respect of the additional levels of blue bricks, I agree these were necessary because of the sloping ground. However, I do not consider they cause Mr X significant injustice. If the applicant cannot provide landscaping without encroaching on Mr X’s land, it is open to Mr X to provide his own screening if he dislikes the visual appearance.

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Final decision

36. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr X.

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Investigator's decision on behalf of the Ombudsman