Summary: Mrs X complained the Council failed to consider the impact of raised ground levels on a new housing development would have on her amenity when it discharged a planning condition. We ended this investigation because although we are likely to find fault, we cannot properly assess what injustice this has caused Mrs X until the planning process is completed and landscaping measures required by a planning condition are implemented.

The complaint

1. Mrs X complains the Council failed to consider the impact changes to planning a housing development behind her home would have on her amenity. Mrs X says the Council discharged a planning condition and approved a significant increase in the height of the land on which the new houses would be built. Mrs X says her property will now be overlooked.
2. Mrs X says the Council has accepted errors but has failed so far to remedy the impact the development will have on her future amenity.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I spoke to Mrs X about her complaint and considered information she provided.
5. I considered the Council’s response to my enquiry letter.
6. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not. Planning considerations include things like the impact on neighbouring amenity.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
9. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. On larger developments, applicants often submit ‘outline’ applications, with plans that give an indication of what is proposed to be built, and include some details, usually including details of access to the highway. An outline approval can be followed by a ‘reserved matters’ application, which will provide all or most of the details needed to make a decision.
10. Where a discrepancy in a plan has not been noticed, the Ombudsman will only criticise a council if the discrepancy would have:
• Been obvious to any reasonable officer; and
• Would have been material i.e. it made a difference to the outcome.
11. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
12. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
13. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.

What happened

14. The Council approved a planning application for a new housing development on land behind Mrs X’s property. The end of Mrs X’s garden meets the boundary of the new development. The plans included a footpath and road on the other side of Mrs X’s fence and showed one of the plots (the plot) on the new development was a two-storey house with windows to habitable rooms directly facing the rear of Mrs X’s home. The plans showed the development land would be 0.6 metres above the ground level of Mrs X’s garden and the distance between the plot and Mrs X’s property was 21 metres. However, the plans did not show Mrs X’s rear extension which is used as her lounge/living area. The full application included a planning condition for the developer to submit ground levels before building.
15. The developer applied to discharge the planning condition. The developer submitted a revised plan which showed the ground level a further metre higher than was shown on the previously approved plans. The Council discharged the condition but, has no record to show it considered the raised levels or how they might impact Mrs X’s home.
16. Mrs X first became aware of the raise in ground levels when building began, and she contacted the Council with her concerns. She also pointed out the plans had failed to account for her rear extension and so the distance between the plot and her property was 17 metres rather than 21 metres as shown on the plans.
17. The Council visited the site and agreed the height of the land would cause unacceptable overlooking on Mrs X’s property and amenities. The Council considered that other new houses on the development would have a similar impact on Mrs X’s neighbours.
18. The Council began working with the developer to mitigate the impact the raised land would have on neighbouring properties. The developer agreed to change some of the two storey houses to bungalows. The Council told Mrs X that the plot nearest her was part of these plans, but the plot facing Mrs X’s had already been sold, so the developer could not make the change. Instead, the developer agreed to move an upper floor bedroom window to the side of the house to stop overlooking.
19. Mrs X complained to the Council about how it had handled the planning application and about the impact it would have on her amenity.
20. The Council responded and accepted there were errors and misunderstandings around the ground levels. It also accepted the distance between the plot and Mrs X’s property was not clearly demonstrated on the plans. It said that given the considerable increase in ground levels submitted in the planning condition, it should have requested a full planning application to provide an opportunity to properly consider the issues. The Council accepted the planning officer should have identified and considered these issues and the impact the change would have on existing homes. The Council said it would use a boundary and landscaping treatment condition, which has yet to be discharged, to soften the impact caused by raised land levels.
21. Mrs X remained unhappy and complained to us.
22. The Council provided use with an update on its progress ontje landscaping condition. It said the developer is appointing a landscaping specialist to advise on planting which should be in place prior to occupation of the new house behind Mrs X, which is not yet finished. The Council said it would set up a site meeting with Mrs X to discuss landscaping options as quickly as possible.

My findings

23. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
24. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
25. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
26. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
27. I ended this investigation, at this time, and my reasons are as follows:
• The Council has accepted that it failed to properly consider the impact the raised land would have on Mrs X’s amenity when it discharged the planning condition. It accepts that when the new house is occupied, Mrs X’s property will be overlooked from the path and road as it runs past Mrs X’s land.
• Although it is likely we would find the Council at fault for its handling of this matter, we cannot assess the amount of injustice it will cause Mrs X. This is because the planning process is ongoing and the landscaping measures required by the Council’s planning condition have not yet been agreed and implemented.
• When the landscaping is approved and completed Mrs X will be in a better position to demonstrate how she is affected and we will be able to assess any remaining injustice.
28. Mrs X may complain to again once the development and landscaping is completed if she still believes she is caused a significant injustice because of the Council’s failure to consider and protect her amenities.

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Final decision

29. I ended my investigation because the planning process is ongoing and so I cannot assess the impact that any fault might have on Mrs X.

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Investigator's decision on behalf of the Ombudsman