Summary: Ms B complains about the actions of the Council associated with development near to her home. The Ombudsman finds there was no fault in the handling of the relevant planning and enforcement matters. There was delay in responding to the complaint, which was fault. However, the Council has apologised for this and Ms B has not been caused a significant injustice which warrants further remedy.

The complaint

1. The complainant, whom I shall call Ms B, complains the Council was at fault in granting planning permission for development near to her home and that there has been a breach of planning control on which it has failed to act. She also complains about how the Council dealt with her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered all the information provided by Ms B about her complaint, and copies of the complaint correspondence obtained from the Council. I also considered information available on the Council’s website relating to this development and the associated actions in respect of planning permissions and in respect of enforcement.
5. I provided Ms B and the Council with a draft of this complaint and considered all comments received in response.

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What I found

The planning application for development

6. The Council received a planning application for development at the rear of Ms B’s home, comprising the demolition of an existing bungalow and the erection of two detached dwellings and a detached garage. The planning officer made a site visit and prepared a report.
7. Ms B objected to the proposal on several grounds including impact on her amenity from overlooking and bulk and scale of what was proposed, which she deemed inappropriate. In considering the impact on residential amenity, the planning officer noted in his report that given the distance, orientation and general relationship between Ms B’s home and the proposed development, there would be no undue overlooking, or other undue impacts. The planning officer said that following concerns raised, revised plans had been submitted reducing the scale of the proposed development nearest to Ms B’s home ‘to a true bungalow with eaves set at ground floor ceiling height’.
8. Highways objected to the proposal in its consultation response, but the planning officer addressed the relevant issues in the report and gave his view that considered the objection raised should not constitute a reason for the refusal of the development.
9. The planning officer recommended approval, subject to conditions. One condition related to the rooflight windows opposite Ms B’s home, noting that they were to be constructed so no part of the window openings or glazing was less than 1.85m above internal floor level in the rooms served by those windows, in the interests of neighbouring amenity (privacy). Planning permission was granted.

What happened next

10. Once development was underway, Ms B considered the dwelling had not been revised to reduce the scale as described in the officer’s report. She said the eaves had not been set at ground floor ceiling height and what was being constructed was larger than that which had been approved. She also said the rooflights had been made wider than drawing and were in different positions than on the plans. She wrote to the Council on 19 February to complain about this.
11. The Council acknowledged this communication within two days, and says it told her that the complaint had been forwarded to the planning enforcement team for consideration. It also provided a copy of the complaint procedure.
12. Having heard nothing further by 27 March, Ms B contacted the planning enforcement officer. The Council reports that Ms B was then advised by email that a further application for a variation of the approved plans was in the process of being submitted. This was because the Council had investigated the apparent breach of planning consent Ms B had reported as an enforcement issue and the developer had agreed to apply for variation to the approved plans to reflect the ‘as built’ position. Once that revised application was received by the Council, it notified Ms B and she responded with her objections.
13. A fresh report was prepared, setting out the planning officer’s considerations of the revisions. In considering the impact on neighbouring amenity the planning officer had again visited the site and had assessed the changes. Having done so the officer’s opinion was that the three rear-facing rooflight windows allowed no undue overlooking of adjacent dwellings or gardens. He noted that the height of the openings of the windows above internal floor level was in accordance with the condition attached to the existing permission. The officer considered that the proposed changes would not give rise to undue overlooking or other undue impacts on residential amenity, and so conditional approval was recommended. Planning permission was then granted, and the enforcement case closed as the development was now regularized and no longer in breach of permission.

Analysis

14. Ms B considers the Council was at fault because what the planning officer had said in the first report about the scale of building being reduced to ‘a true bungalow’ had not been complied with. However, the planning officer’s report is not a binding planning document: the relevant documents which set out the permission are the decision notice and the approved plans. And what happened in this case is that when the Council investigated the breach (that is, development not in accord with the approved planning documents) the developer was entitled to submit revised plans for consideration, to ‘regularise’ what had been built. It was then a matter for the Council to decide if those revisions meant that the development was no longer acceptable in planning terms and should be refused. That was properly a decision for the Council to make and there is no evidence of fault in the way that it did so.
15. Insofar as enforcement investigations are concerned the Council’s website states that the enforcement team aims to acknowledge receipt of enquiries and provide contact details; to provide updates on progress at key stages during the process; and to inform of the outcome of the investigation. It says that it welcomes requests for updates at any time and that this is best done by telephoning the case officer. Here, the Council progressed the enforcement investigation and advised Ms B when a revised planning application resulted from this.

Complaint handling

16. Ms B considers she had complained the Council in February 2019 when she reported that the development was not in accordance with the existing planning permission. The Council treated this as an enforcement issue rather than a corporate complaint: it was not fault to do so given what Ms B was reporting, and it seems Ms B was advised that it was being dealt with as an enforcement matter.
17. On 16 April Ms B had written again to the Council, requesting escalation of her complaint to the second stage of the corporate procedure, but the response she received on 28 May was a stage one response. Ms B felt she had been misled about the process and she wrote back on 5 June. The Council did not provide a stage two response until 25 November, when it apologised for the delay. The substantive complaint, that the planning enforcement team had not fully investigated the complaint, was not upheld because the evidence showed the breach had been investigated and the developer had applied for and been granted retrospective planning permission. But the delay in responding was fault.

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Final decision

18. As noted above, there was considerable delay by the Council in responding to the corporate complaint. However, it has it has apologised for this and Ms B has not been caused a significant injustice as a result of that fault which would lead the Ombudsman to recommend any further remedy.
19. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman