Summary: Mrs C complained about the way the Council dealt with three planning applications for development near her property. We cannot find fault with the actions the Council took.

The complaint

1. Mrs C complains that Shropshire Council (the Council), in respect of three planning applications for development near her property:
• failed to control the size of the building (it is higher than originally approved in 2015);
• caused her nuisance from dust, noise and parking during the building work;
• failed to allow their local councillor to attend a site visit; and
• allowed the neighbour to install two windows overlooking her garden, even though they were not included on the plans.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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

5. 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. I have written to Mrs C and the Council with my draft decision and considered their comments.

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What I found

6. Planning permission is required for the development of land (including its material change of use). All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
7. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
8. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Enforcement

9. 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. Government guidance says:

“Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework July 2018, paragraph 58)

What happened

2015

10. In 2015 the Council granted planning permission for a larger garage in the grounds of a property next door to Mrs C (APP1). The approved drawing shows the building would be 5 metres high from the level of the damp-proof course (above ground level), 10 metres long and 6.5 metres wide, with a floor area of 65 square metres and an eaves level of 3 metres.
11. The officer report said:
• the proposed garage would not be directly visible from outside the site nor observable from the neighbouring street or neighbouring dwellings;
• the proposed windows would have limited impact on the outlook of neighbours and their visual amenity.
12. Mrs C objected to the application saying it would affect access to her driveway, there would be an increase in traffic and pollution, the neighbour could use the garage for commercial purposes and there was asbestos in the existing garage.

2017

13. In 2017 a neighbour complained to the Council that the garage was not being built in accordance with the approved plans and the Council opened an enforcement investigation. The Council then received a planning application for the garage being built: 5.5 metres high, 10.47 metres long, 6.69 metres wide with eaves level still at 3 metres. It included a first-floor level with a frosted glass window (APP2).
14. Mrs C and another neighbour objected. Mrs C’s concerns included an exacerbation of already difficult parking issues, obstruction of her driveway, increased pollution, noise and disturbance during construction, loss of privacy due to overlooking from the windows, concern about commercial or residential use of the garage and the overbearing nature of the building.
15. The Council refused this application in August 2017 as it considered the scale of the garage to be excessive: the addition of the first floor and the first-floor window were unacceptable. But the Council considered the principle and design of the proposal were acceptable and noted that no-one had objected to the first application where the garage had a height of 5 metres.
16. A neighbour contacted the Council in late 2017 to complain that the garage was still being built larger than the original approval, particularly in terms of the height. He said the finished height would be over 6 metres.
17. The Council responded saying the garage was being built in accordance with APP1 and so it was closing the enforcement investigation. A neighbour queried this as they considered the height was unchanged (ie too high). The Council replied saying officers had visited the site, discussed the situation with the applicant and taken measurements of the building. They said the applicant had reduced the roof height in line with the approved APP1 and blocked up the unauthorised window.

2018

18. In January 2018 the Council wrote to Mrs C confirming the enforcement investigation was being closed because the height of the garage was 5 metres in accordance with the approved plans.
19. Following further correspondence from the neighbour, officers visited the site in March 2018 and took measurements of the footprint, which confirmed the garage, which was now nearing completion, was larger than permitted. The Council invited the applicant to submit a variation of condition application to rectify this breach.
20. This resulted in APP3 seeking permission for a garage measuring 6.65 metres wide, 10.48m long, 5 metres high, with the eaves remaining at 3 metres and an area of 69.69 square metres. An officer visited the site in May 2018 to view the garage at this point in the construction process.
21. Both Mrs C and the neighbour sent objections to the proposals. Mrs C said the building had been built well in excess of the approval in APP1, the new proposals were the same as those refused in APP2, they were overbearing and out of keeping with the area. She also said the map accompanying the application did not show the new building and suggested the applicant was creating a residential property and/or commercial garage by stealth.
22. Following the site visit the Council concluded that the scale of the garage comparative to that originally approved in APP1 was not excessive and decided to approve the application under its delegated powers (ie by officers rather than going before the planning committee).
23. A local Councillor requested that the Planning Committee should consider the application. The Chair and Vice-Chair of the Committee considered this request at the agenda setting meeting. In discussion with a senior officer, they concluded it could be dealt with by officers, as long as conditions requiring demolition of the existing garage and removal of permitted developments rights were added to any decision.
24. Following further objections two officers visited the site again. They invited the local councillor to attend but due to the short notice this was not successful. The officers took the final measurements of the finished building concluding it was 6.65 metres wide, 10.48 metres long and 5.4 metres high (from the top of the damp proof course) with an eaves height of 3 metres.
25. One of the officers contacted the local councillor after the meeting with the measurements and photographs taken. They said the height increase since the last visit was due to making up the roof but it did not alter the Council’s decision to approve the application. They explained that the increase in height was not significant and it would not be expedient to take enforcement action because the Council could not defend a refusal at appeal.
26. The applicant submitted a revised drawing showing the correct height of 5.4 metres above the damp proof course.
27. The officer report explained why its current view differed from the decision on APP2 (the increase in height compared to APP1 was not significant enough to justify refusal). It acknowledged that the proposal had some limited visual impact from public viewpoints and surrounding gardens including Mrs C’s property, but the difference compared to the approved APP1 did not cause significant harm.
28. It noted that some of the comments were not material planning considerations (noise and dust during construction, parking and driveway obstruction) and had no bearing on the planning decision.
29. The Council approved APP3 in August 2018, adding three additional conditions: one restricting permitted development rights for additional buildings within the curtilage of the dwelling (to avoid over-development of the site), one restricting the use of the garage to a use in relation to the existing dwelling, preventing commercial or additional residential use and one requiring the existing garage to be demolished by 31 March 2019.
30. One of the conditions attached to the permission is incorrect as it refers to the building being 5 metres high above the damp proof course, when it is 5.4 metres.
31. Mrs C complained to the Council about the approval process from 2015 to 2018. The Council replied in August 2018. It could find no fault with the way it had dealt with each application. It accepted the building had not been constructed in accordance with APP1 but subsequent actions and applications had rectified the issues and the differences were not significant enough to warrant enforcement action.
32. Mrs C complained to the Ombudsman. She said the applicant had inserted two windows which overlooked her property.
33. In response to my enquiries the Council said the ground floor windows were approved in APP1. There were two roof-lights in the slope of the roof but these were permitted development and did not overlook any nearby resident due to their position and direction.

Analysis

Size of the building

34. When the Council was alerted to the possibility that the building was larger than permitted by the 2015 planning application, it took action to investigate the situation by opening an enforcement investigation. Its initial conclusion was that the building was in accordance with the 2015 permission. But following further building work it concluded it was larger than originally approved. It requested a further planning application to consider the changes but concluded they were acceptable in planning terms.
35. I understand the approval of APP3 following the refusal of APP2 appears contradictory. However, each application has to be considered on its individual merits and officers are entitled to take a different view. I also note in this case that the officer’s view in APP2 was that the principle and design of the building had been approved in APP1 (without objection) and without the first floor window (which has since been blocked up) it did not cause significant harm to residential amenity.
36. The Council, through APP3, has considered the whole situation and concluded that the development in its current form is acceptable. It has also taken steps to prevent further development on site and specifically prevented conversion to residential or commercial premises, without seeking further permissions. I cannot find fault with this process

Nuisance during the building work

37. As the Council explained in the officer report, these are not issues which can be considered during the planning process, as they are temporary. A person can contact the environmental health department regarding issues of nuisance.

Failed to allow their local councillor to attend a site visit

38. The Council invited the councillor and when he was unable to attend, contacted him after the visit to provide him with an update. The Council explained this in its complaint response.

Ground floor windows

39. The number and position of the ground floor windows are the same as those approved in APP1. The applicant has installed two roof-lights but the Council considers these to be permitted development (ie not subject to planning control). Even if planning permission were required, the Council considers it would be granted as they do not adversely affect the amenity or privacy of any residential neighbours, including Mrs C due to the roof slope and their placement above eye level.

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Final decision

40. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs C.

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Investigator's decision on behalf of the Ombudsman