Summary: Mrs B complains the Council has not taken adequate action about a development next to her house. Mrs B says the development causes a loss of privacy. She is also concerned about the safety of her property and the risk from asbestos. The Ombudsman finds fault with how the Council considered Mrs B’s privacy and how it responded to the demolition of an existing building.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council has not properly responded to her concerns about a neighbouring development. Her concerns include:
• Loss of privacy
• Overshadowing from garage
• The building not being built in line with approved plans
• Risk of harm from unsafe disposal of asbestos
• Illegal importation of waste materials
• Raising of land in the neighbour’s garden and risk of soil slipping
• Risk of surface water running onto her property from soakaways

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The Ombudsman’s role and powers

2. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Environment Agency, unless in connection with flood defence and land drainage. (Local Government Act 1974, sections 25 and 34A, as amended)
3. 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)
4. 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)
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 information Mrs B provided and discussed the complaint with her on the telephone. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments.

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What I found

Legislation and Guidance

7. Planning permission is required for the development of land. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
8. 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.
9. Councils can take enforcement action if they find planning rules have been breached.
10. The Building Act 1984 (“the Act”) sets out the primary legislation for building control. Many developments will need both planning permission and building control approval.
11. A developer may obtain building control approval by applying directly to the Council or by using an approved building control inspector. If the developer engages and approved inspector, the Council will normally have no role in monitoring the construction from a building control standpoint.
12. In line with Section 80 of the Act, if a person demolishes a building, they must normally serve a demolition notice on the Council. They do not need to serve a notice if the building is smaller than 1750 cubic metres.
13. When the Council receives a demolition notice, it may serve a counter notice with conditions about how the demolition takes place. On the Council’s building control website, it says such conditions could include to remove and dispose of all asbestos in a safe manner.
14. Both the Council’s general website and its building control website have sections for people to report a dangerous structure. The Council says, when someone reports a dangerous structure, it will normally inspect within four hours. If the Council considers the structure dangerous, it may carry out further inspections or may order the owner to make safe or remove the danger.
15. The Environmental Protection Act (“EPA”) 1990 defines contaminated land as any land which appears, by reason of substances in or under the land, that:
• Significant harm is being caused or there is a significant possibility of such harm being caused.
16. If the Council considers there is contaminated land, it must serve a remediation notice on any parties necessary. Regulations set out the procedure for doing so.
17. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.

Background

Planning applications

18. In 2015 Mrs B’s neighbour applied for planning permission to replace a small existing building with a large house. I have exercised discretion to investigate this matter, although more than 12 months have passed. This is because Mrs B would only have more recently become aware of any problems with privacy. She complained to us less than 12 months after the outcome of her complaint to the Council.
19. The Council consulted Mrs B and other neighbours. Mrs B raised concerns about the impact the development would have on her own property. She also raised concerns about the demolition of the existing building, which contained asbestos.
20. The Council granted planning permission. In its report the Council said the developer did not propose any windows to the first floor of the northeast facing elevation. This is the side of the house that faces Mrs B’s home. Therefore, there would be no overlooking.
21. The approved drawings show two dormer windows in the first-floor eaves, serving ensuite bathrooms. The Council says this was a mistake and apologises. However, it says the windows are now frosted so there is no overlooking.
22. The report does not comment on any overlooking from the ground floor windows. The Council says ground floor windows are generally not considered to have an adverse impact on amenity as they do not cause significant downward overlooking.
23. The approved drawings do not show the existing or proposed ground levels. The Council says that as the land is sloping it was always clear the developer would need to cut and fill the land to make it even.
24. In the Council’s planning report, it says the site reduces in gradient to the north. However, the development is not considered to negatively impact on Mrs B’s amenity. It would be positioned just over seven metres away and would reduce to a low eave level on that side so would not cause overshadowing or loss of outlook.
25. The Council approved planning permission. It included a condition not to change the soil level around protected trees in the garden.
26. The neighbour applied for planning permission to change the design in 2017. He also applied for planning permission to construct a garage.
27. The main changes to the design were additional railings, a different dormer entrance design and raised eaves to the south west elevation. The new drawings also showed frosted glass windows in the first-floor eaves and the existing ground levels. The ground levels are much lower than the proposed base of the house on the north side.
28. Mrs B commented on both applications. She asked the Council again to consider the steep gradient between her property and the proposed development, and the privacy issues this would cause. She expressed concern about overshadowing from the garage. Ms B was also concerned about surface water running on to her property, particularly if the garage drainage became full of debris.
29. The Council’s report for application to change the design, says there is unlikely to be a significant loss of amenity to Mrs B from the three main changes. It does not comment on the ground levels or any loss of privacy to Mrs B. The report concerning the garage application says, following changes to the height, there is no unacceptable loss of light.
30. The Council approved both applications.

Demolition

31. In mid-2017, Mrs B’s neighbour started work by demolishing the existing building. The building was a small dwelling. The neighbour did not serve a demolition notice
32. Mrs B remained concerned about asbestos. She complained to the Council that her neighbour was demolishing the building without properly disposing of the asbestos. She was concerned about the risk to her health from particles in the air.
33. An environmental health officer visited the site. The officer identified that any asbestos was low grade in terms of risk. She advised the neighbour to dispose of the asbestos in double bags at an accredited tip. The officer did not follow up to ensure this happened.

Construction

34. In mid-2018 Mrs B contacted the Council again with concerns she had about the construction of the new house. Her concerns included:
• The neighbour was not building the house in line with the approved plans. It was much higher than on the plan and the ground floor windows overlooked her ground floor lounge window, despite having a 6ft fence.
• The garage wall was built higher than on the approved plans.
• The neighbour had imported large amounts of waste materials to raise the level of the garden. He had not built a retaining wall. Mrs B was concerned the mound could slip and cause damage to her property.
• The raised height meant soakaways in the garden were also raised. Mrs B was concerned this would lead to water run-off into her garden causing damage.
• The neighbour had buried asbestos in the garden.
• The neighbour used piling methods while working on the foundations and she was concerned about the impact on her property.
35. The neighbour used an approved building control company to monitor the works from a building regulations perspective. Mrs B complained to the approved company but was not satisfied with the response. She asked the Council’s building control team to inspect the build as she believes the raised land levels and soakaways pose a danger to her property. The Council has not carried out any building control visits.

Council actions

36. A planning officer visited the site in August 2018 to inspect the protected trees. It found the neighbour had raised soil levels around the trees. It discussed this with the neighbour who agreed to remove the soil.
37. The officer also spoke to Mrs B and advised that importation of waste materials was a matter for the county council and Environment Agency (“EA”). The officer said they would notify both organisations. They would also pass on her concerns about asbestos to the Council’s environmental health (“EH”) team.
38. Mrs B continued to contact the Council. In October 2018, it arranged a joint visit between it’s planning and EH teams, the county council and the EA, on site.
39. The EA agreed the neighbour had illegally imported materials to raise the land levels. It wrote to the neighbour who agreed to voluntarily remove the materials.
40. The planning team found the neighbour was building the development in line with the approved plans.
41. The EH team discussed the burial of asbestos with the neighbour, who gave the name of a company he used for removal. An officer telephoned the company who said it did not remove the asbestos as it did not have a licence to do so. The officer tried to contact them several times again, but the company did not answer its telephones. The Council says it therefore cannot confirm whether the neighbour removed the asbestos from site.
42. The Council said in its response to Mrs B that it had passed this information to the EA as it was a matter for them. The EA told Mrs B it had not found evidence of buried asbestos.
43. The Council says in its response to my enquiries that it could consider investigating under the Contaminated Land Regulations if there was a significant risk of significant harm. However, based on the type of asbestos seen during demolition, it does not have enough evidence of a significant risk of significant harm, that would warrant such an investigation.

Complaint response

44. In the Council’s complaint response, it acknowledges that it would have been best practice for the EH officer to follow up on the removal of asbestos during demolition. It also accepts some delay between Mrs B raising concerns about importation of waste and its response and attendance at the site. It has apologised and offered Mrs B £250 in recognition of these shortcomings.

Findings

Planning Applications

45. I understand Mrs B has raised complaints about the way the neighbour has built the house, in the context of planning enforcement. That meaning Mrs B believes the house is not being built in line with the approved plans due to its height. However, it is my view this is not a planning enforcement issue. The house does appear to reflect what is in the approved drawings. The Council has visited the site and confirmed this. The issue then is with how the Council considered Mrs B’s amenity when it approved the applications.
46. I find fault in how the Council considered the planning applications. It is my view the Council did not properly considered the loss of privacy to Mrs B.
47. I accept it was a mistake for the Council to say there were no first-floor windows in the report for the 2015 application. This is fault but it did not cause an injustice as, in the end, those windows were frosted and would have been approved anyway.
48. My concern is with how the Council considered overlooking from the ground floor windows. It does not mention the ground floor windows at all. It only says there are no first-floor windows, so no overlooking. Approval is therefore given on the basis there is no overlooking.
49. In its response to my enquiries the Council says it does not generally consider ground floor windows have an adverse impact as they do not cause significant downward overlooking. It says that principle applies in this case, which is why the Council does not consider the ground floor windows in its report.
50. I accept that normally ground floor windows do not cause overlooking. However, Mrs B has provided photographs that, in this case, show the neighbour’s ground floor windows clearly overlook her living room window. This is because the neighbour has raised the land, so the new house sits at a much higher level than her own. The neighbour’s ground floor windows are at a height that, were the ground level, you would normally expect to see first floor windows. One of those windows is directly opposite Mrs B’s living room window.
51. The Council says the land is sloping and planning permission was granted on the basis there would need to be some cut and fill to create a horizontal base. The report itself does not mention any cut and fill. The approved drawings do not show any raising of the land. The report comments that the north east side reduces to a low eave level. This suggests that, actually, the officer may not have realised how high the neighbour would build the house in comparison to Mrs B’s home.
52. Either way, there is fault. If the Council was aware how high the ground floor windows would be, there is no reason it should not have considered the loss of privacy Mrs B might suffer from that overlooking. Any principle that ground floor windows do not normally cause overlooking, is irrelevant if they are so high, they do overlook.
53. If the Council was not aware in 2015, then it should have considered the privacy issue in the 2017 application. The approved drawings in 2017 showed the land levels. Mrs B raised concerns about her privacy given the raised height. However, the report does not consider this. It only considers the impact of the changes to the entrance and dormers.
54. At no point has the Council considered Mrs B’s privacy from the overlooking windows. This is fault.
55. I do not find fault in how the Council considered the application for the garage. In its report, the Council has considered overshadowing and has set out that it does not consider there is an unacceptable loss of light. It is not my place to question the Council’s judgement in this respect.
56. Issues such as how drainage will be maintained and any risk of damage to Mrs B’s property are not material planning considerations. I would therefore not expect to see the Council consider these issues in its planning reports.

Demolition

57. I find fault with how the Council responded to Mrs B’s complaint about the demolition.
58. The existing building is small but appears from photographs to be large enough to warrant a demolition notice. The Council has not given any reasons for why such a notice was not needed in this case. It is therefore my view that the owner should have served a demolition notice on the Council.
59. When the EH officer attended in mid-2017, she did not find out whether there was a demolition notice, or if the Council had served a counter notice.
60. Demolition notices are a building control matter. However, Mrs B had raised concerns about asbestos. The Council’s building control website says counter notices may include requirements about the safe removal of asbestos. Therefore, it would have been good practice to check if there was a counter notice in place that made any provisions about the removal of asbestos from the site.
61. If the Council had checked this and found there was no demolition notice in place, it may have identified that the demolition should not be going ahead. It may have required the neighbour to stop, apply for a demolition notice and consider whether to put in place any requirements around the removal of asbestos.
62. As the Council accepts, it would also have been good practice to follow up and ensure the neighbour had complied with the officer’s advice on the removal of asbestos. On balance, I find there is fault in how the Council managed this situation.

Construction

63. The Council accepts there were some delays in responding to Mrs B’s complaint in the first instance. I have investigated the Council’s actions when it did respond.
64. I do not find fault with the Council’s decision not to take planning enforcement action. Again, the house does seem to be built in line with the approved plans.
65. It is possible the raised level in the garden should be treated as a development. The neighbour has not gained planning permission to raise the height of the garden, so that could be a planning enforcement issue. However, in this case, the Council has identified that the garden is level due to the importation of waste material, and that this is a matter for the Environment Agency. The EA has liaised with the neighbour to remove the material. If the material is removed, this negates any planning enforcement concerns.
66. If Mrs B is concerned the EA has not ensured removal of the materials, she would need to raise this with the EA. The EA is not within our jurisdiction for such matters, so this is not something I can look at as part of my investigation. However, if following further contact with the EA, the EA does not take action and the height of the garden remains raised, then it would seem the change is permanent. Mrs B can then raise this with the Council again and at that point, the Council should consider whether the raised garden amounts to a development and whether to take any enforcement action. This would then be a new matter for the Council to consider, and is dependent on the outcome of further contact between Mrs B and the EA, so is not something I have included in my recommendations.
67. The Council says it cannot become involved in building control matters as the neighbour employed an approved inspector. This is generally correct. The Council would not attend the property to carry out routine inspections or to check broad compliance with building regulations. However, the Council does still have a general duty to enforce building regulations in its area. This applies where someone has raised a concern about an unsafe structure.
68. On the Council’s website it says that when someone reports a potentially dangerous building or structure, a building control surveyor will inspect within four hours. Mrs B has repeatedly told the Council she is concerned about a dangerous pile up of soil next to her property. Yet no one from the Council has ever inspected from a building control point of view. It is my view, this is fault.
69. In terms of the soakaways, again any general compliance with building regulations is a matter for the approved inspectors. Any actual damage caused to Mrs B’s property would be a matter for civil action between her and her neighbour.

Contaminated Land

70. I do not find fault with the Council’s decision on whether to serve a remediation notice in respect of contaminated land. It is clear the Council has considered its powers and responsibilities. It has weighed up whether significant harm is being caused or is likely to be caused by the buried asbestos, as set out in the definition of contaminated land in the EPA 1990. It has reached the decision that it does not have evidence of significant harm or risk of harm, considering all the available evidence. It is not my place to question the Council’s professional judgement in this respect and I can see no evidence of fault in how it considered the matter.

Consideration of Remedy

Privacy

71. Mrs B’s photographs show there is overlooking, which impacts on her privacy. The Council says the overlooking is not such that it would not have granted planning permission for the development as it is. It says side facing windows are not normally afforded the same level of protection in terms of overlooking or overshadowing as front or rear facing windows. It also says, a person can add unobscured side facing ground floor windows into their home, under permitted development rights.
72. The Council therefore does not consider that, had the officer considered the overlooking, it would likely have made any difference to the outcome of the planning application.
73. I disagree with the Council’s comments. I acknowledge that permitted development rights would cover the addition of an unobscured ground floor window. However, permitted development rights include an express condition to obscure upper floor, side facing windows. It is also normal practice in full planning applications, for Council’s to impose conditions requiring obscured-glazed glass on any first floor, side facing windows. The reasons being that, left unobscured, those windows will generally overlook the neighbours’ ground floor, side facing windows, often for habitable rooms. This shows there is a clear intention in planning law and practice to protect ground floor, side facing windows from overlooking. There may not be the same protection for overshadowing, but that is a different matter.
74. The reason permitted development rights and normal planning practice do not include obscured glass for ground floor windows is because, normally, ground floor windows do not overlook other ground floor windows. However, in this case, they do and look straight into Mrs B’s living room. In the planning application, the Council needed to consider the overall impact on Mrs B’s amenity. This included any overlooking and loss of privacy. It did not do this.
75. Again, I acknowledge that in legal terms the neighbour could now build side facing ground floor windows that overlook under permitted development rights. With this in mind, on balance, I cannot say for certain whether, had the Council considered the loss of privacy, it would have allowed the development as it is. However, given the clear intention to protect privacy on the side elevation in the majority of applications, I consider there is a high degree of uncertainty about what the Council would have done, but for the fault, and this has caused significant distress to Mrs B.
76. I recommend the Council pay Mrs B £750 to acknowledge this distress. I understand this will not reflect the level of ongoing distress Mrs B considers the matter has caused. However, it is in line with our guidance on remedies for payments to recognise cases where the distress caused is significant.
77. I considered whether to recommend the Council informally negotiate with the neighbour to obscure the ground floor windows. However, I recognise the Council could not enforce this and, at this stage, such talks are not likely to be productive. I have therefore not recommended this course of action. I understand this will cause continued frustration to Mrs B, but the windows do now have planning permission. Councils cannot not normally, proportionately revoke planning permission, and I could not recommend such a course of action in this case.

Demolition

78. Mrs B’s main concern about the demolition is from the risk to her health if her neighbour did not properly dispose of asbestos.
79. I have no evidence to say harm did occur to Mrs B, and if it did this would likely be a matter for the courts. The Council identified the asbestos as a low grade of risk. That does not necessarily mean there was no risk to Mrs B, but the risk is likely to be limited.
80. The Council says it has not found any evidence the neighbour failed to properly dispose of properly. However, the firm the neighbour said he employed, claimed it had not done so and did not have a licence. This certainly brings into question how the disposal took place, if at all.
81. Even so, it is normal for people to dispose of asbestos themselves and I cannot say whether the owner followed the Council’s advice and did so in a safe way. I also cannot say for certain what, if any, conditions the Council would have put in place had received a demolition notice. I cannot find, in the context of my investigation, a significant, high risk of harm to Mrs B. Again, that is not to say no risk existed.
82. The Council has offered Mrs B £250 to recognise the fault in terms of not following up on its advice and the delay in responding to Mrs B. I would not recommend anything substantially different to the remedy the Council has already offered.

Construction

83. Mrs B says there is still a large pile of raised materials in her neighbour’s garden, with no retaining wall, that she believes is unsafe and could slip and cause damage to her property. I recommend the Council’s building control team visit the site and decide whether it considers there is a structure that causes a danger. If it decides there is, the Council should take the action it considers appropriate to address this and communicate its decision with detailed reasons to Mrs B.

Agreed action

84. The Council has agreed to, within a month of this decision:
• Apologise to Mrs B for not properly considering her loss of privacy, not checking for a demolition notice or following up on advice it gave to the neighbour and for not carrying out a building control inspection.
• Pay Mrs B £250 to recognise the fault around the demolition and delays in its response.
• Pay Mrs B £750 to recognise the distress caused by the fault in considering loss of privacy in the planning applications
• Its building control and/or enforcement team visit the site and decide whether it considers there is a structure that causes a danger

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Final decision

85. I find fault in how the Council considered Mrs B’s privacy, how it responded to the demolition of an existing building and for not carrying out a building control inspection.

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Investigator's decision on behalf of the Ombudsman