Rushcliffe Borough Council (18 017 354)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 30 Aug 2019

The Ombudsman's final decision:

Summary: Mr B complains about the actions of the Council in respect of enforcement matters arising from development next to his home. The Ombudsman finds no fault by the Council in this matter.

The complaint

  1. The complainant, whom I shall call Mr B, complains the Council failed to properly consider land levels when permitting development next to his home, and then failed to take action in respect of a breach of planning permission relating to the levels which is impacting on his boundary wall.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. I considered all the information submitted by Mr B about his complaint. I made written enquiries of the Council and took account of the information it provided in response. I obtained information about the relevant planning application from the Council’s website.
  2. I provided Mr B and the Council with a draft of this decision and considered all comments received in response.

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What I found

  1. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 as the carrying out of development without the required planning permission; or failing to comply with any condition or limitation subject to which planning permission has been granted.
  2. Any contravention of the limitations on, or conditions belonging to, permitted development rights, under the Town and Country Planning (General Permitted Development) (England) Order 2015, constitutes a breach of planning control against which enforcement action may be taken.
  3. Planning enforcement action is discretionary. When a council receives a report of an alleged breach of planning control, it must establish whether a breach has taken place and if so, what harm, if any, is being caused as a result. It is for the Council as planning authority to decide whether it is expedient in the public interest to take action, having regard to the development plan and any other material considerations.
  4. Government guidance on enforcement and post-permission matters notes that where the balance of public interest lies will vary from case to case. In each case, in deciding the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where there is a ‘trivial or technical’ breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area.

What happened in this case

  1. The Council received a planning application for development of land next to Mr B’s home. He objected, raising several concerns about the impact of a proposed bungalow on his amenity. The Council took account of these objections but concluded the proposed development was acceptable in planning terms and so permission for the build was granted.
  2. Conditions attached to the permission included that the development should only be carried out ‘in accordance with finished ground and floor levels in relation to an existing datum point, existing site levels and adjoining land which shall be submitted to and approved in writing’.
  3. Once development was underway there was frequent correspondence between Mr B and the planning enforcement as Mr B raised concerns about the building work as it progressed. Mr B first raised concerns about levels on the site in January 2018, once it appeared the ground floor of the bungalow had been laid. The Council responded within a week advising that the finished floor levels were in accordance with the approved plans.
  4. In later correspondence the Council said it was satisfied that the finished floor level of the bungalow was in accordance with approved plans. For site levels, the Council said compliance with the plans in terms of finished site levels could not be confirmed until the development was substantially complete. It noted that due to the fall in land levels through the site, the difference between finished floor level and ground level at the back of the bungalow would possibly be around 600mm. But it noted too that the impact of potential overlooking had been taken into account during the consideration of the planning application and the subsequent application for the discharge of the relevant condition. It said the development was in accordance with the approved details and so there was no breach of planning control.
  5. In May 2018 Mr B told the Council of his concerns that the ground level on site was over 60cm higher than on his side of the boundary wall and could damage the structural integrity of the wall. He also reiterated concerns about overlooking given this difference in levels. An enforcement officer visited and then wrote back to Mr B confirming this was still a building site with the levels yet to be finalised, but saying that he was looking into arranging some independent survey work to provide information on the current levels.
  6. Measurements were subsequently taken on site by an engineer from a company owned by the County Council which offers a consultancy service. The engineer’s findings on checking at the measurement points on the application plans showed that the finished floor level of the bungalow was 386mm higher than the ground level on the site plan; the finished level of the slabbed patio to the rear of the new bungalow was 102mm higher than the corresponding level on the site plan; and the ground level immediately adjacent the rear boundary fence was 129mm higher than the corresponding level on the site plan.
  7. The Council has confirmed it has no evidence of the difference in land levels between Mr B’s land and the application site. Land level measurement at the point of particular concern to Mr B, at the side of the bungalow adjacent to the boundary with his home, was not one of the marked measurement points on the application plans. Site visit notes from November 2018 indicate though that this land is approximately 40cm ‘higher than approved’, and the Council referred to this 40cm increase in this area when it responded to B’s complaint in January 2019.
  8. Having accepted that there had been an increase in the land levels in the area adjacent to Mr B’s home, the Council then had to consider whether this was a breach of planning consent warranting enforcement action. The Council decided that although there was technically a minor breach of condition it was not deemed expedient to enforce. It said the narrow strip of land was fenced at one end and so was not likely to be used as a thoroughfare but for access for maintenance purposes and the lack of windows in the relevant elevation meant that it did not cause unacceptable overlooking of Mr B’s property. It correctly advised that any damage caused to the dividing wall between the properties would be a civil matter.

Analysis

  1. My role is not to make a judgement on whether the Council should take enforcement action. It is to decide whether there has been fault in the process, and if so whether this fault has caused injustice. The evidence shows the Council took relevant factors into consideration in reaching its decision that enforcement action to reduce the land level on the development side of the boundary was not expedient. The decision was one the Council was entitled to take and its decision-making was not affected by fault.

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Final decision

  1. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman

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