Summary: Mr X complains a planning committee report gave inaccurate information about the distance between his property and a development and failed to properly consider the impact of changes in the land levels. Mr X says his privacy has been affected. The Council accepts the distances quoted were greater than actually exists. It also failed to explain how two storey buildings were acceptable behind his property when bungalows were placed behind his neighbours to reduce adverse overlooking.

The complaint

1. Mr X complains the Council failed to properly consider the effect on his residential amenity when approving a development on land to the rear of his property. In particular, the Council provided inaccurate information about the back to back separation distance and failed to consider the difference in land levels when approving two storey properties.
2. Mr X says his privacy has been significantly affected and the occupants of the new properties can look directly into his property and garden.

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The Ombudsman’s role and powers

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. 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. As part of the investigation, 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;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and invited their comments. Neither Mr X nor the Council provided any comments on the draft decision statement.

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What I found

6. The Council refused a planning application in May 2014 for the development of 226 dwellings on land adjoining Mr X’s property. The Planning Inspectorate granted permission on appeal in September 2015.
7. In allowing the appeal, the Planning Inspector stated “It is acknowledged that the floor levels of the proposed dwellings would have to be constructed at a specified minimum level and, in some instances, significantly above those of neighbouring houses. However, the relationship of one house with another and the ability to minimise potential adverse over-looking would be a matter for consideration at reserved matters stage”.
8. The Council notified Mr X of the reserved matters application and invited his comments. Mr X contacted the Council before the planning meeting and comments on the separation distance shown on the plans. Mr X felt the distance had not been shown correctly and that it was less than shown on the plans.
9. The Council’s planning committee considered the reserved matters application in May 2017. A report was prepared which included details of the relevant policies, consultation responses, neighbour objections and relevant planning considerations.
10. The committee report stated that a number of matters are the subject of conditions attached to the outline planning permission. It was noted that while drainage of the site is covered by a condition, a more detailed examination was required as the drainage strategy could impact on site levels and layout.
11. A whole section of the committee report focussed on drainage issues. It stated there had been a number of representations from the local community expressing concerns about the impact of surface water drainage on their gardens. It noted that particular concern had been expressed by residents on one street. This is the street where Mr X lives.
12. The report explained the proposal was to raise the average level of the site up above the water table. This would include the management of existing ditches around the site. The Council considered the proposed development would have a beneficial impact on surface water management and would have no detrimental impact on neighbouring occupiers in respect of drainage and flooding.
13. The report also stated the raising of ground levels across part of the site would facilitate a gravity solution for the drainage of the site. It said the developer had discounted the alternative pumped solution, which would have allowed for only minimal alteration to levels, on the grounds of cost and maintenance. The Council considered the gravity solution had a lower risk of failure. It also considered that efforts had been made to minimise the impact of the level changes by using different house types, ie bungalows, to minimise the impact on the neighbouring residential properties. The Council noted that while this situation is less than ideal it was considered to be acceptable in this instance.
14. The planning committee granted conditional approval. The outline permission included a condition stating details of the finished floor levels of the dwellings should be submitted to and approved in writing by the Local Planning Authority before development begins and the development shall be carried out as approved.
15. Once building work began on site, Mr X contacted the Council about the separation distances and the impact on his property. The Council visited Mr X’s property in June 2018. It confirmed the depth of Mr X’s rear garden was not correctly shown on the submitted plans and appeared to be shown 2 metres longer than it is actually is. The Council acknowledged Mr X’s point that behind his property there would be two storey buildings whereas all the plots to the east had bungalows.
16. The Council wrote to the developer asking if it would consider substituting the two storey buildings behind Mr X with bungalows. The Council offered to consider other changes to the development to mitigate the lost income associated with this change. The developer refused to consider this change.
17. In response to Mr X’s formal complaint, the Council said it is not normal practice to carry out detailed survey work rather it relies on the applicant’s submission. However in this case, as Mr X had raised issues, it agreed greater clarity and assurance could have been provided if measurements had been take at Mr X’s property prior to determination of the application. It accepted there was a level of fault and apologised. It accepts the distance between Mr X’s rear boundary and the boundary of his house is less than shown on the submitted plans and therefore less than the 21 metres reported to Members. It says that while the information upon which the application was determined was now wholly accurate, it considers the degree of additional impact in minimal.

Analysis

18. The Planning Inspector’s decision required the Council to consider the relationship of one house with another and to minimise potential adverse over-looking because the new houses would be built up due to differing land levels and drainage issues.
19. The Council said it had achieved this by approving a mixture of house types. For most of Mr X’s neighbours, there are bungalows to the rear which means the height of ground floor windows is similar to that of new first floor windows if houses had been built there. It gave this as an explanation to Mr X’s neighbours when they complained.
20. The Council did show cross sections to the committee members. However, it accepts it gave incorrect information about the separation distances and showed Mr X’s property further away from the development site than it actually is. It has not provided any explanation of how it has mitigated against adverse overlooking in respect of Mr X’s property. I consider the absence of any explanation in the committee report about why the two storey properties are acceptable in terms of over looking is fault. I take this view because the Council has justified the relationship with other properties specifically because bungalows have been used.
21. As a result of the reporting of the incorrect separation distances and the failure to explain why two storey buildings are acceptable, Mr X is left not knowing what the outcome would have been if the correct consideration had been given. It is possible the Council would have sought changes, as it did after visiting Mr X’s property, and required bungalows to be built like the rest of the street.
22. I note the Council has placed a Tree Preservation Order (TPO) on trees on land between Mr X’s property and the development site. However, in response to my enquiries on this issue the Council accepts that owing to the height and form of the trees adjacent to Mr X’s boundary, the impact is limited. The two storey houses will have an increased impact on Mr X’s privacy and amenity.

Agreed action

23. To remedy the injustice caused to Mr X, the Council, within one month of my final decision, will pay him £1000. This will enable Mr X to provide additional screening within his property.

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Final decision

24. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman