Summary: Mr and Mrs X complain about the Council’s consideration and approval of drawings detailing the levels and height of the replacement house next to their home. There was fault in the Council’s consideration of the levels plans but this has not altered the decision on the application.

The complaint

1. Mr and Mrs X complain about the Council’s consideration and approval of drawings detailing the levels and height of the replacement house next to their home. They consider the Council did not realise the drawings did not accord with the street scene drawings that formed part of the original planning permission. They say that as a result the new house is 1.1m higher than theirs when the street scene plans showed it as just over 0.5m higher. They say that this means there is now an unacceptable degree of overlooking of principal rooms in their house and the garden.
2. They also complain about delay in the Council’s consideration of their complaint.

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The Ombudsman’s role and powers

3. 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)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

5. 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

6. I considered the complaint and documents provided by Mr and Mrs X and spoke to Mr X. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr X and the Council and considered their comments.

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What I found

What happened

7. Mr and Mrs X live in a detached property. The complaint concerns the building of a replacement house on the plot next to them. The new house is larger than the previous house and set in a different position on the plot. The issue of concern is the height of the new house. The road slopes so Mr and Mrs X’s house is lower than the development. When the Council considered the planning application for the new house it imposed a condition requiring the submission of detailed plans showing the levels. When the plans were submitted the Council approved them. Mr and Mrs X were unaware of that approval as the Council’s policy at the time was not to notify, or place on its website, such applications. It has now changed that policy.
8. When building works started Mr and Mrs X were concerned about the height of the house and various other matters. Some of those matters were private matters between them and the developer but they raised their concerns about the height of the house with the Council. The Council investigated and found the house was being built at the height specified on the plans when measured against the set datum point.
9. Mr and Mrs X were not happy and complained. The Council responded to the complaint but maintained its position that there was no deviation from the approved plans.
10. Mr and Mrs X instructed a surveyor and complained to the Ombudsman.

Analysis

11. The crux of the complaint is whether the development is higher than shown on the street scene plan submitted as part of the original planning application. Mr and Mrs X’s surveyor considered it was higher and this was illustrated on a series of photographs showing the relationship between the new house and the neighbouring properties.
12. The photographs Mr and Mrs X have provided are taken from various locations and are at an angle to the houses. This means that any comparison of relative heights is not reliable and I cannot draw any conclusions from them.
13. Mr and Mrs X’s surveyor agrees the development is built at the height shown on the approved levels drawing when measured from the datum point. He has also measured the finished floor level of their house. He said the difference between them is 1104mm. This conclusion is supported by information that has been submitted as part of a later application. This shows the levels of the neighbouring properties. Taking these measurements and the level of the development shown on the approved levels drawing would give a difference between the site and Mr and Mrs X’s property as very slightly over 1m. The surveyor says the difference between them when taken from the street scene plan is 625mm. He concludes from this that the development must have deviated from the street scene plans and is built about 450mm higher than shown.
14. I cannot say whether the surveyor’s assessment of the difference in levels shown on the street scene plan as 625mm is correct. The Council has not provided any confirmation on whether that is what it scales as from the plan. It has commented that if the development was higher, as the surveyor concludes, then the eaves of the development would have to be virtually level with the ridge of the Mr and Mrs X’s house and this is not shown in their photos. But, as I say above, I do not consider it is possible to rely on the photographs to compare the properties so I have given this comment no weight
15. It is possible the street scene drawing did not accurately show the relative heights of the neighbouring properties. Because they are not shown on the detailed levels drawing it is not possible to make a comparison. I understand the level drawing is sufficient for the Council to consider the height of the development itself but the absence of the neighbouring properties on those plans means it is not possible for the Council to consider how it appeared in terms of the whole street scene. This was an important element in the consideration of the application. The reason for the imposition of the condition requiring the submission of level drawings was to protect the character of the area and the amenities of neighbouring properties. As the plans do not include the neighbouring properties the Council could not assess the impact on the character of the area and the impact on neighbouring amenities from the development. That is fault.
16. Where there has been fault I have to consider whether that has caused injustice to the complainant. Here Mr and Mrs X consider the increased height has meant they are overlooked from windows that face the side of their property and garden. If I consider this on the basis that the development is higher than the street scene plan shows I am not persuaded this would have given the Council grounds for refusal of the level plans. The relationship with the neigbouring properties was considered when the principle of the development was established and considered to be acceptable. I do not consider the possible increase in height over that shown in the street scene plan is significant in terms of the impact on Mr and Mrs X’s property. And it would not have given the Council grounds to reject the levels plans. So I consider there was fault by the Council but this has not altered the outcome.
17. Mr and Mrs X complained to the Council in early November 2018. Officers met with Mr and Mrs X in late December and responded in February 2019. The Council apologised for the delay in replying. It reiterated this apology in the stage 3 response in March. The apologies from the Council are an appropriate response to the delay in responding to Mr and Mrs X’s complaint.

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Final decision

18. Subject to further comments by Mr and Mrs X and the Council, I intend to find there was fault in the Council’s consideration of the levels plans but this has not altered the decision on the application.

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Investigator's decision on behalf of the Ombudsman