Summary: The Council was not significantly at fault in relation to the substantive matters Mr W raised. But, there was fault causing injustice to Mr W through the Council’s lack of response to his request to escalate a complaint to Level Two of the Council’s complaints procedure. The Council has agreed to make a written apology to Mr W, and to provide a small financial remedy.

The complaint

1. The complainant, whom I shall refer to as Mr W, complained about the way in which the Council:
1. considered his neighbours' planning applications without taking proper account of the effect of the proposals on his residential amenity; and
2. failed to respond appropriately to his reports of breaches of planning controls by his neighbours.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. 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

4. I have considered information provided by both Mr W and the Council.
5. I have written to Mr W and the Council with my draft decision and considered their comments.

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What I found

The Council’s Quality Places Supplementary Planning Document

6. This sets out detailed tests officers should carry out in assessing the impact of new development on windows in existing adjacent properties.

The Council’s complaint procedure

7. This has two levels. At Level One, a Lead Specialist or Operational Manager from the service area in question will investigate the complaint. At Level Two, a member of the Senior Leadership Team will independently review the Level One complaint investigation.
8. The Council aims to complete its complaint investigations, and to respond within 15 working days.

Background

9. In April 2017, the Council received a planning application from Mr W’s next door neighbours whose property lay to the south of his home. The proposals were for: “the erection of a single storey rear extension, loft conversion with roof lights and replacement of detached single garage at rear.”

May - July 2017

10. The Council notified Mr W of the application early in May. From then until mid-July he tried to telephone officers and wrote to them to say the development was already being built, and it differed from the submitted plans. Amended plans the applicants submitted in late June still differed from what was being built, and appeared to show the boundary wall encroaching on Mr W’s property.

The Council’s approval of the planning application

11. The case officer’s report:
• noted that the Council had now received amended plans showing the scheme would no longer encroach on to neighbouring property;
• said the rear extension would be one and a half storeys with six roof lights serving two bedrooms and a bathroom. It would be six metres deep;
• the garage would be next to the boundary furthest away from Mr W’s property. It would be 2.9 metres wide, 5.5 metres deep, and 3.5 metres high;
• set out Mr W’s objections regarding size, his right to light, and overlooking from the roof lights. Mr W also objected to the proximity of the extension possibly undermining his fence posts and causing the site owner difficulty in maintaining the roof, and to building work on the garage already taking place;
• further noted that planning applicants were legally able to begin work on a development at their own risk, and the right to light was a legal process outside the planning system;
• said the ridge height of the property would not increase. The extension would project four metres beyond the end of Mr W’s dwelling. But, it passed the Council’s lighting test set out in its supplementary planning documents, and would not restrict his daylight to an unacceptable degree; and
• assessed that the side roof lights would not significantly increase levels of overlooking, as they served secondary rooms.
12. In mid-July, the Council told Mr W it had approved the planning application. Shortly afterwards, Mr W made a formal complaint.

Complaint response from Head of Development Management

13. Early in August the Head of Development Management replied that:
• officers received a large number of letters relating to planning applications. It did not have sufficient resources to respond to all these;
• she apologised for officers’ failure to return Mr W’s telephone calls. This had been due to the high volume of work officers had been dealing with at that time. But, they had fully considered the points he had made;
• during the planning application process, the case officer had made a visit to the application site, and assessed the effect the development would have on Mr W’s property. Again, resource constraints meant officers could not routinely make site visits to neighbours;
• officers had considered the planning proposals accorded with the Council’s planning policies, and approved the application;
• she understood Mr W’s frustration about the garage being built in advance of the planning permission. But, although the Council encouraged applicants to await its decision, planning legislation provided for them to start work on the development at their own risk; and
• the right to light was a civil matter outside the planning process. The application had met the Council’s daylight test set out in its planning guidance.
14. The complaint response did not explain whether it was a Level One or Level Two response, or how Mr W could escalate his concerns.

August - September 2017

15. Mr W wrote to the Head of Development Management specifically asking to escalate his complaint to stage 2. He handed this letter in at the Council’s offices. I have seen no indication that the Council responded to this further complaint.

November 2017

16. Three months later, Mr W contacted officers and visited the Council’s offices on several occasions complaining about his neighbours breaching their planning permission. He was unhappy that he could not speak to the enforcement officer. But, the officer made a site visit within 10 days of Mr W’s first contact.
17. The enforcement officer visited again with a colleague a few days later. But, the builders would not allow them on to the site. The officer spoke to Mr W during both these visits to explain what was happening.
18. The enforcement officer wrote to the neighbours asking them to submit a retrospective application. Meanwhile, Mr W again visited the Council’s offices to try to find out what was happening.

December 2017 - January 2018

19. Early in December, the enforcement officer made a further visit, and found that Mr W’s concerns were valid. The officer took advice and subsequently asked the neighbours to make a retrospective planning application in respect of the garage. If the garage was occupied, as it appeared might be the case, they should include this in the application.
20. During mid-December, Mr W made a number of calls to the Planning Enforcement Team asking for a visit. He was worried about the danger of tiles falling from the roof on to his patio during the building works. Officers did not visit. But, they gave him the telephone number for the Health & Safety Executive, if he remained concerned.

Complaint response from Chief Executive

21. Early in January 2018, Mr W’s MP emailed the Council’s Chief Executive about Mr W’s concerns. The Chief Executive responded in mid-February. He said:
• the Planning Enforcement Team had first received a complaint from Mr W in mid-November 2017;
• an enforcement officer had visited the site three weeks later and confirmed that Mr W’s concerns were valid. Specialist advice had since established that the applicants should submit a new planning application;
• the Council had now received this. Once officers had been able to validate the application, they would notify adjoining neighbours, inviting them to make comments for development management officers to consider;
• if they approved the application, officers would not need to take enforcement action. But, if the Council refused planning permission, officers would consider formal enforcement action;
• in relation to Mr W’s concerns about work on the roof, and the risk of tiles falling outside his door, officers had given Mr W contact details for the Health and Safety Executive;
• the potential overhang of the extension on to Mr W’s property would be a civil matter. The Council could not become involved in this issue, and had advised Mr W to contact the Citizens Advice Bureau; and
• he had asked a local enforcement officer to contact Mr W at key stages of the enforcement investigation. The officer would notify him of any formal enforcement action, and/or closure of the case.

The Council’s further complaint response

22. Mr W wrote to the Chief Executive early in March, as he had become concerned about a different issue. The Council’s Development Management Enforcement Specialist replied to Mr W three weeks later. She said:
• as the chimney his neighbours had installed did not exceed the highest part of the roof by more than one metre, they had not needed to apply for planning permission. The chimney was permitted development and the Council could not take enforcement action against it;
• the plans for the single storey extension and loft conversion did not show the chimney. But, as it was permitted development, the neighbours did not have to include this;
• the proximity of the chimney to Mr W’s rear patio window was also a civil matter that the Council could not become involved in;
• the Council had not yet been able to validate the neighbours’ retrospective application for the garage and a 2.4 metres high fence, as officers required further information; but
• as soon as they could validate the application, they would invite him to make representations about this;
• if the Council refused the application, officers would consider whether to take formal enforcement action. But, until then, they could not do so; and
• officers were not ignoring the breach of planning controls. They were taking steps that were reasonable and proportionate.

The Council’s approval of the retrospective planning application

23. In mid-July, the enforcement officer reminded the neighbours they needed to submit a retrospective planning application. The Council received this a few days later.
24. In assessing the application, the case officer’s report:
• said the as built garage was 3.9 metres wide, 6.2 metres in depth, and 5.1 metres in height;
• included a copy of Mr W’s objections to the scheme in full;
• repeated that planning legislation provided for applicants to start work on a development at their own risk;
• said the depth of the footings was a Building Control matter;
• noted that neighbouring properties had outbuildings which were a similar scale;
• assessed the garage as sitting reasonably comfortably within the plot. Overall, it raised no concerns. Officers would attach a condition preventing it from being used as a separate form of accommodation; and
• further noted the garage would most affect the next door neighbours on the far side of the application site to Mr W, as it was on their boundary. But, these neighbours had not objected.
25. The Council approved the application in mid-August. Shortly afterwards, officers wrote to Mr W to say they had now concluded the enforcement investigation and would take no further action.

The Council’s approval of a further retrospective planning application

26. Late in August the neighbours submitted a further application for two fence panels in excess of two metres in height. However, officers did not have all the information they needed to validate the application until mid-November.
27. Mr W responded to the Council’s notification letter early in December. But, his objections related to an earlier boundary dispute between him and his neighbours, and their objections to the height of his own fence panels.
28. Officers considered the application early in January 2019. The case officer’s report said:
• the proposed fencing was all within the applicants’ property boundary. It would enhance and improve the separation fencing between the application site and Mr W’s property. It would weather down over time;
• while the fencing would be visible from Mr W’s dwelling, the view from a dwelling was not a material planning consideration; and
• given the limited height of the proposed boundary treatment, they did not consider the proposals would result in any material harm to the levels of light, outlook, or privacy enjoyed by Mr W.

Was there fault and if so, was there injustice requiring a remedy?

29. Prior to determining the neighbours’ part retrospective planning application in July 2017, the Council treated Mr W’s letters as objections to the planning proposals. It was not at fault in not responding to these. It is normal practice across most local planning authorities not to respond to representations about planning applications. Available resources do not normally allow for this. Also, the Council was still receiving amended plans from the applicant. It was not clear, therefore, that the finished scheme would not reflect the planning permission.
30. It was fault for officers not to respond to Mr W’s telephone calls during this period. But, the Council has acknowledged this fault and apologised. So, I do not propose to pursue this issue further.
31. The Council was correct in its view that planning legislation provides for developers to start work prior to receiving their planning permission. Officers were also correct in saying that the right to light, and encroachment, were civil issues between neighbouring property owners. The Council could not become involved in these issues.
32. I am satisfied the Council did properly consider any loss of light and overlooking Mr W might suffer in accordance with the tests set out in its supplementary planning documents. But, it was simply the case they did not consider there would be an unacceptable impact on his property. In considering this point, I have also been mindful that the roof lights in the roof elevation facing Mr W’s home would serve secondary rooms, and be at a higher level than ordinary windows. Also, the ridge height of the dwelling would not increase.
33. There was fault in the Head of Development Management’s complaint response in August 2017. While this dealt with the issues Mr W raised, it did not indicate whether it was a Level One or Level Two response. Nor did it explain to Mr W how he could escalate his complaint, either through the Council’s complaints procedure, or by approaching the Ombudsman.
34. I accept on balance that Mr W did try to make a further complaint in August 2017. I say this because he received advice from the Ombudsman that he should do so, and because of his previous consistent efforts to contact the Council.
35. Mr W is elderly and not in good health. So, it caused him some effort to ensure the Council received this further complaint by handing it in personally. I consider, therefore, that the Council’s fault in not responding caused him sufficient injustice for me to ask the Council to provide a remedy.
36. The Planning Enforcement team did respond to Mr W’s concerns about breaches of planning controls within a reasonable timescale from November 2017. Mr W was able to discuss matters with enforcement officers on site. I accept that the lack of response Mr W had previously received from the Council was causing him some anxiety. But, I would not normally expect officers to have to respond to such frequent requests for progress updates.
37. The Council was correct in its view that the danger of tiles falling from the roof was a matter for the Health and Safety Executive. It further provided Mr W with information on how to pursue this issue.
38. There appeared to be some delay between January and July 2018 in reminding the neighbours of the need to submit a retrospective planning application. But, given the Council’s subsequent approval of the application, this did not cause significant injustice to Mr W. So, I do not propose to pursue this point.
39. There was no delay in responding to Mr W’s further complaints in March 2018. This appeared to be a Level One response. But, again, there was no explanation about how Mr W could escalate his concerns to Level Two.
40. I am satisfied that in January 2019 officers properly considered the impact on Mr W’s residential amenity of the two new fence panels exceeding two metres in height. I am also mindful that whatever boundary treatment was in place, Mr W would be able to see this in the same way as any residential property owner would do.

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Agreed action

41. The Council has agreed to my proposals that it should:

• make Mr W a written apology for its failure to respond to his request to escalate his complaint in August 2017; and
• pay him the sum of £100 in recognition of this fault, and of the injustice he suffered through not receiving a response after making a considerable effort to ensure the Council received his request.

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Decision

42. As the Council has accepted my findings, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman