Summary: Mrs X complained the Council has failed to take timely and appropriate action in relation to breaches of planning control at a site next to her home. She complained the new houses loom over and reduce the natural light and privacy to her home. The Council’s failure to properly consider his matter and the delay in identifying and informing Mr and Mrs X that the new houses had been built in accordance with approved plans is fault. As are the significant delays in determining the retrospective application. These faults have caused Mrs X an injustice.

The complaint

1. The complainant, Mrs X complained the Council has failed to take timely and appropriate action in relation to breaches of planning control at a site next to her home. She complains the Council has allowed houses to be built at a significantly higher level than existing properties. These new houses loom over and reduce the natural light and privacy to her home.
2. Mrs X also complained about poor communication and delays in responding to her communications and complaints.

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The Ombudsman’s role and powers

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. If we are satisfied with an organisation’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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr and Mrs X;
• sent a statement setting out my draft decision to Mrs X and the Council and invited their comments.

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What I found

7. Several years ago the Council granted planning permission, subject to conditions, for a large residential development on a site behind Mr and Mrs X’s home. The conditions included a requirement that no development should start until detailed plans and sections showing both existing and proposed site levels had been submitted to and approved by the Council.
8. The developer submitted an application to discharge conditions which included plans and sections of the site levels. The Council had not discharged these conditions but works began on the site later that year.
9. Mr and Mrs X raised concerns with the Council about the ground levels at the site. They asserted the floor levels for the new houses on their boundary were 1.5m to 1.8m higher than their own property and would overwhelm their home. Mr and Mrs X noted the planning application documents did not show this height difference between their home and the new properties.
10. The Council acknowledged Mr and Mrs X’s complaint and confirmed it would investigate. Mr and Mrs X contacted the Council again to say the height difference now looked closer to 1.8 m to 2m, on made ground behind a newly constructed retaining wall.
11. An enforcement officer, Officer 1 visited the site and also met with Mr and Mrs X. Following this visit the officer told Mr and Mrs X they had measured the retaining walls along the part of the site to the rear of their property and had identified some differences between the plans and what had been built. Officer 1 confirmed they had spoken to a senior manager on site who had said they intended to reduce the height of the walls in some areas and to provide split level gardens to lessen the impact.
12. Officer 1 told Mr and Mrs X the developer had submitted plans to discharge the site levels condition. The finished floor levels of the new properties were in line with these plans so if the Council approved them, the height of the buildings would not be in breach of planning control.
13. In addition Officer 1 confirmed they had advised the developer they would need to submit new drawings to show what they intended to build and had requested they stop work in that area in the meantime. If the developer continued to work there they did so at their own risk.
14. Mr X contacted the Council for an update a few months later. Officer 1 confirmed they had chased the developer for the new plans but had not received them yet. The developer had however submitted plans on a related retrospective application. Officer 1 asked Mr X to confirm whether work was continuing on the plots behind his property. Mr X confirmed it was. He provided photographs of the works and estimated the floor level of the new buildings was 2m to 2.5m above his own property.
15. Officer 1 advised Mr X that as there was a planning application pending they could not take any further action until it had been determined. They advised they would close their file pending a decision and would reopen it if the application was refused. Officer 1 noted Mr and Mrs X had commented on the planning application and suggested they address any further concerns to the planning officer.
16. Mr and Mrs X asked the planning officer, Officer 2 for an update as the work was ongoing and they were concerned about the impact on their property. Officer 2 told Mr and Mrs X the application was not yet in a position to be presented to the planning committee.
17. Following a site visit the following month the Council told the developer the current should be amended to seek permission for the retaining wall structures as well as the other works.
18. The Council also noted it had repeatedly asked for additional information to support the scheme for retaining walls with regard to assessing the impacts on the neighbour amenity of existing dwellings. It asked the developer to provide all supporting information promptly as it intended to present the application at the next planning committee.
19. In addition the Council asked the developer to stop all construction work adjoining Mr and Mrs X and their neighbours’ boundary otherwise it would consider issuing enforcement proceedings.
20. Over the following months Mr and Mrs X continued to chase the Council for an update. They told the Council the new properties appeared to be occupied and that the height difference in floor levels was now 2.4m. Mr and Mrs X were unhappy they were repeatedly told the application remained under consideration and that they should access the Council’s website for updates.
21. The Council’s records show the Council was in correspondence with the developer throughout 2022 in relation to the documentation required for the current planning application.
22. In the spring of 2023 a senior planning officer prepared a report for the planning committee recommending approval of the application to vary a condition and amend the layout. In this report the officer noted that a number of pre-commencement conditions remained outstanding despite the advanced stage of construction and occupation of some of the plots.
23. The report considered the impact of the new dwellings on neighbouring properties, including Mr and Mrs X’s, in terms of privacy and overlooking, daylight, and visual impact. Although the report identified some conflict with the local plan policy, officers did not feel a refusal on amenity grounds could be sustained.
24. The planning committee deferred a decision on the application to enable further investigation of all the issues raised and to establish if mitigation could be agreed.
25. Following the committee meeting the developer wrote to residents, including Mr and Mrs X inviting them to meetings to discuss their concerns. It also arranged a meeting with council officers and wrote to the Council setting out its position regarding the land levels. The developer acknowledged there were outstanding conditions which had not been discharged. This was despite the developer submitting an application to discharge conditions over two years earlier. One of the outstanding conditions related to land levels, which it recognised caused concern for local residents.
26. The developer asserted the properties on Mr and Mrs X’s boundary had been constructed in accordance with the approved planning layout specified in the planning permission.
27. The developer also noted that the documents submitted with its application to discharge conditions include plans for the adoptable drainage layout, external works, and a flood exceedance plan. It said all of these plans included finished floor levels for the approved dwellings and that these FFL were consistent with those in documents already approved.
28. As such, the developer argued the development had been constructed in accordance with planning permission and the levels approved by the planning permission. It asked the Council to discharge the condition relating to land levels.
29. In addition the developer confirmed the current planning application did not seek to amend the finished floor levels of the properties on Mr and Mrs X’s boundary, but only to amend the planning permission to reflect the split-level gardens to those plots.
30. The Council says it sought legal advice which confirmed the dwellings had been built to the correct finished floor levels but the garden levels and retaining structures were a breach of planning control.
31. At a site meeting with residents and council officers in the summer 2023 the developer agreed to propose amended plans to address the concerns raised. The developer also agreed to commission a structural survey of the retaining structures and share his with residents. It would also incorporate residents feedback into a revised scheme to be submitted to the Council.
32. Mr and Mrs X made a formal complaint. They asked the Council to provide a formal position statement on the development to the rear of their property. They said the new properties were constructed 2.39 m higher than their ground level and only 14m from their boundary. Mr and Mrs X asked the Council for a full audit/ enquiry of the planning departments negligence and lack of due process over the last 20 months.
33. Mr and Mrs X also questioned whether the Council fully appreciated and considered the formation levels of the development when granting planning permission. They noted original topography of the site showed a 100mm difference between their property and the development site. The developer then submitted flood agency and drainage proposals with revised levels for the development at an elevation of 1.85m. Mrs and Mrs X questioned whether planning officers noticed the significant change in elevations and considered the impact on existing properties.
34. Mr and Mrs X said they had understood that the developer was building at their own risk and had not been aware until early that month that the developer had the correct planning permission. Mr and Mrs X asked the Council to clarify the position and to confirm when the land level condition was discharged.
35. The Council responded to the complaint three months later and apologised for the delay. It explained the enforcement investigation had been ongoing for many months and it had asked the developer on numerous occasions for additional information. The Council said it had only been in a position to make a full assessment of the information provided in recent months. It had then taken legal advice on the interplay between conditions and the various approved documents.
36. The Council confirmed the condition related to the approval of gardens and site levels around the properties rather than the floor levels of the dwellings themselves. These were approved at the time of the original application by virtue of the flood risk assessment. It confirmed the developer did not obtain approval of the site levels prior to commencement and was therefore in breach of this condition.
37. These external works are at the developer’s risk as they are currently unauthorised and liable to enforcement action if the planning application to regularise matters is refused.
38. In relation to the floor levels of the buildings the Council noted the approved drainage layout showed the finished floor levels of the property and garage closest to Mr and Mrs X. The sectional drawings also showed the finished floor level of Mr and Mrs X’s property. The height difference between the two properties was 2.40m. The Council was satisfied that the floor level of the new dwellings was in accordance with the permission.
39. In addition the Council confirmed it did not consider it appropriate to serve a stop notice. It did not consider the harm was irreversible and an alternative means to rectify the situation was agreed with the developer in the form of an application to regularise the works.
40. The Council noted the developer had agreed to provide a scheme of mitigation for residents to review and agree before it is presented to the Council for consideration as part of the current planning application. It acknowledged these proposals were overdue and said officers were in contact with the developer and would ask it to update residents.
41. Mr and Mrs X were not satisfied by the Council’s response and have asked the Ombudsman to investigate their concerns. They noted their complaint had been ongoing for three years and they had still not received answers to their queries. Mr and Mrs X said the developer agreed an acceptable plan with residents in the summer of 2023 but this had not progressed. They have spent a significant amount of time communicating with the Council and the developer, often receiving no response.
42. Mr and Mrs X say the situation has caused them a huge amount of upset, stress and anxiety. The new houses loom over their garden, reducing natural light and their privacy. They would like the Council to support them in ensuring there are acceptable remedial works and compensation for affected residents.
43. In response to my enquiries the Council says it immediately initiated an enforcement investigation in response to Mr and Mrs X’s concerns. It liaised with the developer and Mr and Mrs X and established the finished floor levels and heights of the new dwellings accord with the approved plans. However, its investigation concluded the garden levels of the properties had been raised and retaining structures installed which were not shown on the approved plans.
44. The Council says it obtained legal advice to confirm this position is legally correct. It sought a revised planning application to regularise the breaches of planning control. This application remains under consideration. The Council says that following discussions with residents the developer has prepared an amended scheme. The developer is carrying out informal consultation with residents before resubmission to the Council for consideration by the planning committee. The Council says Mr and Mrs X will have the opportunity to make representations both informally to the developer and to the Council when the matter goes back to the planning committee.
45. The Council does not consider there have been any delays in taking enforcement action. When Mr and Mrs X raised concerns it began an investigation the following day. The Council then closed the enforcement file in five months later pending consideration of the developer’s retrospective application.
46. Nor does the Council consider there was a delay in responding to Mr and Mrs X’s correspondence. It notes there was a large volume of correspondence which it considers it dealt with in a timely manner.

Analysis

47. The Ombudsman is not an appeal body. Our role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
48. 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.
49. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
50. Although the Council investigated Mr and Mrs X’s concerns promptly and determined there was a breach of planning control, I am not persuaded the Council considered the matter as thoroughly as it should have.
51. Mr and Mrs X’s complaint is primarily about the floor levels and height of the new properties on their boundary. The Council initially told Mr and Mrs X that the developer had submitted plans to discharge the condition relating to land levels. The new houses had been built in accordance with these plans so if the plans were approved they would not be in breach of planning permission. This suggests the floor levels of the new houses had not yet been approved by the Council, when in fact they had.
52. The Council did not at this stage refer to the drainage plans approved as part of the original planning permission, which detailed the finished floor levels for these properties. Indeed the Council did not inform Mr and Mrs X that the new properties were built in accordance with the original planning permission until 20 months after they first raised concerns.
53. I consider the Council’s failure to properly consider his matter and the delay in identifying, and informing Mr and Mrs X that the new houses had been built in accordance with approved plans is fault.
54. It was however identified from the outset that there was a breach of planning control in relation to the garden levels and the unauthorised retaining structures installed by the developer. The Council’s decision to address this breach informally by requesting a retrospective planning application is a matter of professional judgment. Mr and Mrs X disagree with this informal approach and believe the Council should have ensured works at the site stopped until the situation was clarified and approved by the planning committee.
55. Although the Council asked the developer to stop works and explained the works were at the developer’s risk, it did not consider it appropriate to serve a Stop Notice. The Council was satisfied the harm was not irreversible and that the works could be regularised via a retrospective application. This is a decision the Council is entitled to make.
56. We would not expect the Council to take enforcement action while there is a live planning application which may regularise the breach of planning control.
57. However, we would also not expect these matters to remain undecided for so long. The law says that planning applications should take no more than 13 weeks to be decided. I recognise there have been amendments to the application and the Council has agreed extensions of time with the developer, but there have also been significant periods of inactivity. The Council did not present the application to the planning committee until almost 18 months after a decision should have been made. That is now over a year ago and it is unclear what progress has been made since then.
58. The Council has not indicated when this application will be determined. Although the Council’s website states the application will shortly be presented to the planning committee again, there is no record of any revised proposals or further consultations. Delays of this nature are clearly unacceptable and amount to fault. We would expect the Council to be proactive in determining the application and not allow the developer to frustrate the planning process.
59. Having identified fault I must consider whether this has caused Mrs X an injustice. I recognise Mr and Mrs X have significant concerns about the impact of the height of the new properties on their residential amenity and believe the Council should address this. We do consider remedies for loss of amenity and our guidance on remedies suggests that where loss of amenity is temporary we can make a recommendation for a monthly payment until a permanent solution is found.
60. However, I am only able to recommend a remedy where a loss of amenity, permanent or temporary, has arisen as a result of the fault identified. That is not the case here. The finished floor levels of the properties are in line with the original planning permission and so are not a breach of planning control. Any action to address the other breaches of planning control will not alter the height of the new properties or their relationship with Mr and Mrs X’s property.
61. The delay in identifying and informing Mr and Mrs X that the new properties are built in accordance with planning permission has caused an injustice, but not in the form of a loss of amenity.
62. Rather, the faults identified have caused Mrs X distress in the form of uncertainty, frustration, and disappointment. Mrs X has also been put to unnecessary time and trouble in chasing the Council for information and updates on the enforcement investigation and planning process.

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Agreed action

63. The Council has agreed to:
• Apologise to Mr and Mrs X for the frustration, disappointment, and uncertainty caused by the faults identified above. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £500 to recognise the frustration, disappointment, and uncertainty she has experienced as a result of the faults identified above;
• Pay Mrs X £200 to recognise the unnecessary time and trouble she has been put to by the faults identified above;
• Have a senior officer oversee the case to ensure there is no further delays in determining the application and that Mrs X is updated on any progress;
• Carry out a review of procedures to ensure planning applications are not allowed to drift without action.
64. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

65. The Council’s failure to properly consider his matter and the delay in identifying and informing Mr and Mrs X that the new houses had been built in accordance with approved plans is fault. As are the significant delays in determining the retrospective application. These faults have caused Mrs X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman