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Wychavon District Council (16 009 418)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 29 Mar 2017

The Ombudsman's final decision:

Summary: There was no fault by the Council in how it determined the planning permission regularising Mrs Y’s as-built property conversion, which neighbours Mr and Mrs X. Officers properly reached their professional judgements on the impacts of the property on Mr and Mrs X’s property. There are no grounds to go behind those merits decisions. Mr and Mrs X’s complaint that Mrs Y’s property encroaches on to their land is a private civil issue which is not a material planning matter for the Council to consider.

The complaint

  1. Mr and Mrs X complain:
      1. the Council failed to properly consider the impact on their house’s amenity of the neighbour Mrs Y’s developed property;
      2. the officer dealing with the application to regularise the Mrs Y’s property as built failed to seek the advice of an independent person such as an Enforcement Officer;
      3. the Council failed to take proper account of how Mrs Y built the new property attached to a part of their stables which they use as a hay store.
  2. Mr and Mrs X say Mrs Y’s property as built devalues their property, makes part of their stables unusable for its intended purpose, and causes unacceptable impact on their house’s amenity through overlooking and being overbearing due to its increased height. Mr and Mrs X also say Mrs Y’s development encroaches over the boundary and on to their land.

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What I have investigated

  1. I have limited the scope of my investigation due to some of the complaints being late. I explain this further at the start of the “What I found – Assessment” section of this statement below.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr and Mrs X;
    • read and considered relevant online planning documents;
    • issued a draft decision, inviting comments from Mr and Mrs X and the Council, and considered replies received.

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What I found

  1. Mr and Mrs X live in house A in a rural location. On the northern boundary of the courtyard in front of their house is a stable next to a covered open-sided structure which they use as a hay store for their horses. Their neighbour Mrs Y sold them their house and sought to develop a former calving shed on adjacent land which shares its northern boundary. The hay store forms part of the northern boundary with Mrs Y’s property.
  2. Mrs Y submitted a planning application to develop the shed in 2015. Mr and Mrs X commented on the application but did not object. They raised concerns about the plans as submitted not being accurate as it included the hay store as if it Mrs Y owned it. The Council granted the permission with conditions. The sixth condition listed the plans and drawings to be used by the developer to complete the shed conversion.
  3. Mrs Y’s developer did not build in line with the permitted plans. Mr and Mrs X and another neighbour complained to the Council about the divergences. Mr and Mrs X said:
    • the building was higher than the plans;
    • a bedroom window would cause overlooking to their property;
    • the new building was attached to their hay store wall when it should have been set back from that boundary by two metres.
  4. The Council investigated the breaches of the permitted plans. In the meantime, Mrs Y submitted a further planning application for a sun room, porch and detached garage. Mr and Mrs X objected. On the advice of officers, Mrs Y withdrew that application.
  5. The Council sought and obtained from Mrs Y a planning application to regularise the property as it had been built. The Council notified Mr and Mrs X of the new application. They raised their objections. Officers considered the matter and determined in July 2016 that the permission should be granted.
  6. Mr and Mrs X complained to the Council. They then complained to the Ombudsman in September 2016. But this was before the end of the Council’s complaint process so was premature. Dissatisfied with the Council’s final response in December 2016, they brought their complaint back to the Ombudsman.

Assessment

Scope of my investigation

  1. There were two key planning application in this matter:
    • the original application lodged March 2015;
    • the regularising application lodged July 2016.
  2. Mrs Y first applied in March 2015 for permission to change the shed’s use to a residential property, and to extend it. The Council granted that permission on 29 April 2015. Mr and Mrs X first brought their complaint to the Ombudsman in September 2016, after the regularising permission was granted that month.
  3. As explained above, we have discretion to investigate older matters where there are good reasons to do so. I do not consider I should investigate issues arising from the original planning application. Mr and Mrs X were aware of the development and raised concerns about it. Once the Council granted permission in April 2015, they could have complained about it to the Council, then the Ombudsman later in 2015.
  4. So I have investigated how the Council dealt with the regularising application, and only considered the earlier planning matters as context. I find all issues relating to those earlier matters are not within the scope of my investigation.

The planning process

  1. When a development is not built in line with a planning permission, a planning authority can act. The action taken will depend on the facts in each case. It is for officers to decide what action is most appropriate.
  2. If a planning breach is significant enough to cause serious planning harm or is dangerous, councils have powers to take enforcement action to immediately stop or remedy it. Where a breach does not have such an urgent and significant impact, councils may decide not to take any further action.
  3. Alternatively, officers may ask an applicant to submit another application to regularise the development as it has actually been built. That gives objectors a further opportunity to give their views on the development as built. If the owner refuses to submit another planning application, a council may then consider enforcement action. But the use of that power is at the discretion of officers.
  4. Where a property does not tally with the granted permission, it then falls to the Council to consider whether the property as built is acceptable in planning terms. Officers assess whether the new building would have received planning permission if it had been the subject of the original planning application. This is what the Council did in this case. I have not seen evidence of fault by the Council in the way it dealt with the planning processes involved here. Officers considered the property as built was sufficiently different from the original permission to require further regularisation. They were entitled to use their professional judgement to follow this route to seek Mrs Y’s compliance with the planning requirements.
  5. Mr and Mrs X say Mrs Y’s development has involved the demolition of the majority of the calving shed, contrary to the Council’s Local Plan Policy on the conversion of existing buildings. The Council considered the application under that policy when it determined the 2015 planning application. The ways in which the as-built development diverged from the approved 2015 plans did not involve matters which related to the Council’s conversion policy. I do not find it was fault for the Council not assess the property under that policy again during the regularising 2016 application.

Amenity

  1. From the evidence I have seen, the Council gave appropriate consideration to the impact on Mr and Mrs X’s property caused by the property as built.
  2. In respect of the property being built too tall, officers determined the roof height to be 30 to 40cm higher than previously permitted. Officers took the view that height increase was relatively minor and did not cause detrimental harm to the building’s design, or to the surrounding buildings and landscape. Officers determined the property was not overbearing and did not cause such overshadowing and loss of light to existing properties to warrant the permission’s refusal. Those are professional judgements officers were entitled to make. I have not seen evidence of fault in the process they followed which would allow us to go behind the officer’s merits judgement on this issue.
  3. Mr and Mrs X question the measurements submitted by Mrs Y’s representatives during the last planning application. But I have not seen evidence that the property as built is taller than the height used by the officer to decide to grant the regularising permission.
  4. Planning officers considered Mr and Mrs X’s comments on overlooking from Mrs Y’s bedroom window. It appears the Council’s planning partially misunderstood Mr and Mrs X’s objection to that window. The officer interpreted one comment as an allegation that the entire bedroom window was bigger than the one originally planned. Mr and Mrs X’s comment was that more of the window was visible over the boundary fence, because of a change in floor levels.
  5. However, I do not consider that had any bearing on the assessment of the impact on Mr and Mrs X’s amenity caused by the bedroom window. The officer took into account:
    • the window sill is about 10cm higher than originally planned;
    • the approximate 14 metre distance between the bedroom window and the nearest window in Mr and Mrs X’s property;
    • the oblique relationship between the bedroom window and Mr and Mrs X’s nearest window. Any view from the bedroom window towards Mr and Mrs X’s property is sharply angled because the window does not directly face any windows of Mr and Mrs X’s property.
  6. The officer did not consider the window caused significant risk of harmful overlooking towards Mr and Mrs X’s property which would warrant refusal of the application. The officer was entitled to reach that decision using his professional judgement. I have not seen fault in the officer’s consideration which would allow me to criticise that decision.
  7. Officers took the view the impact of the differences from the plans did not have a significant additional impact on Mr and Mrs X or other neighbours. Officers were entitled to take that view and I consider it was one which was properly reached. It is not fault for a council officer to make a decision with which someone disagrees.

Delegated decision

  1. Mr and Mrs X say it was incorrect for one planning officer to decide to grant the planning permission to regularise the property as built. Mr and Mrs X consider the matter should have been referred to an Enforcement Officer, so they could go to the site and check the information Mrs Y provided. They believe this was a “cover-up” and the officer should have asked for an “independent investigation”.
  2. I have not seen evidence of a cover-up by officers. It was for the officer dealing with the application to use his professional judgement to determine whether the information provided by the applicant was sufficient to make his decision. The officer decided it was. I have not seen evidence showing the information about the property was wrong in a way which would have resulted in the planning officer reaching a different decision on the application.
  3. I recognise Mr and Mrs X wanted the officer to consult an independent person before making the planning decision. But it was not fault for the officer to make the decision alone. I am not aware of any requirement on a planning officer, acting under properly delegated decision‑making powers, to conduct such a consultation.

Civil matters

  1. Mr and Mrs X say the Council did not deal with their complaints about Mrs Y’s plans for the shed requiring the wall of her bedroom being attached to the side wall of the hay store, and the development encroaching on to their property.
  2. But those were not material planning issues for the Council to consider. Councils must decide whether an application is acceptable in planning terms. The Council explained this to Mr and Mrs X. Officers are not required to determine ownership of the land or property to be used or developed, or any disputes arising from boundaries or party walls.
  3. The planning system is not concerned with who owns the land which is the subject of a planning application. It is for the applicant to negotiate such private civil matters with the land’s owners. If Mrs Y did not ask Mr and Mrs X for permission to build on their land and use their wall as part of her development that is not fault by the Council. These are private civil matters which Mr and Mrs X could have raised with Mrs Y. It was not for the Council, as the authority determining the planning application, to ask or tell Mrs Y to withdraw her application.
  4. Mr and Mrs X say Mrs Y’s property being connected to their hay store has caused problems, such as for insurance purposes. They also say Mrs Y’s property results in their hay store becoming “semi-detached” instead of “detached”, and that this has reduced the value of their property. Claimed devaluation of existing property is not a material planning issue, which the Council explained to Mr and Mrs X. If Mr and Mrs X consider Mrs Y’s development has had a financial impact on them, their route for redress would be a private civil one.
  5. If Mr and Mrs X pursue the encroachment, party wall or devaluation issues with Mrs Y, they may wish to take independent legal advice before taking that route.

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Final decision

  1. I have not found fault by the Council. I do not uphold the complaint. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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