Summary: Miss B and Mr C complain the Council did not consider properly the height of development near to their home. The plans they were shown, and that were published on the Council’s website when the planning application was approved, showed the part of the development near to their home lower than their land. The Council approved detailed levels drawings, without consulting them, and which show the development to be around 1.5m higher than they had expected. They say the development as built has an adverse impact on their enjoyment of their home. There was no fault by the Council in the consideration of the planning application.

The complaint

1. Miss B and Mr C complain the Council did not consider properly the height of development near to their home. The plans they were shown, and that were published on the Council’s website when the planning application was approved, showed the part of the development near to their home lower than their land. The Council approved detailed levels drawings, without consulting them, and which show the development to be around 1.5m higher than they had expected. They say the development as built has an adverse impact on their enjoyment of their home. They have had to let a hedge grow to provide screening from the development which has reduced the sunlight to their garden.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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. 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)

Back to top

How I considered this complaint

5. I considered the complaint and documents provided by Miss B and spoke to her. I asked the Council to comment on the complaint and provide information. I interviewed the officer who approved the levels drawing. I sent a draft of this statement to Miss B and the Council and considered their comments.

Back to top

What I found

Summary of what happened

6. Miss B and Mr C live in a detached house. The Council was proposing to develop a large-scale housing scheme on land next to their home. Before a planning application was submitted an officer of the Council visited them. Part of the reason for the visit was to discuss possible purchase of their land by the Council or sale to them of an adjacent strip of land. The officer gave them a copy of the part of the plans of the development nearest to them. The site sloped away from Miss B and Mr C’s land and the plans showed the development at the lower level with their land higher.
7. Miss B and Mr C did not object to the planning application as they were content with the development as shown set down from their home. The Council approved the application and included a condition on the planning permission requiring that a plan showing the levels of the development be submitted to and approved by the Council.
8. When work started on the site Miss B and Mr C realised the site was not being developed in the way they understood. The building nearest to them was going to be higher. They complained to the Council.
9. The Council said it considered the level of the development was acceptable in terms of the impact on their amenity and that there had been no requirement to consult them on the plan showing the levels.

Analysis

10. When the Council approved the original planning application it imposed a condition requiring that a plan showing the levels of the development across the site be submitted. That meant the Council retained control over the levels of the development. There was no obligation on the Council to consult neighbours when it received and considered the plans to discharge the condition.
11. The crux of this complaint is whether there was fault in the Council’s consideration of the height of the new building when the levels plan was submitted. The officer who approved the levels drawing has commented that “his judgement to approve the levels plan, and in doing so not to consult the complainants was carefully made… he compared the existing topography with the proposed levels changes. In his mind, the levels proposals represented only minor levels changes from the existing levels, and because of the design, position and orientation of the nearest building to the complainants property, the intervening fencing and planting, and separation distance, he was satisfied that there would not be a material change to the approved development. It was not therefore judged to be necessary to consult the complainants on the proposed levels plan… he had visited the site and he used his professional experience and qualifications in reaching this judgement.”
12. The Council has commented that the street-scene drawing (the one Miss B and Mr C had seen at the outset) was not part of the approved drawings and could be given little weight in assessing the levels on the site. I agree that this drawing would carry little weight in the planning assessment of the detailed levels plans of the proposed development. The Council goes on to say that it was unrealistic for Miss B and Mr C to rely on the information shown on that plan. However, it had given a representation of the relationship between their property and the development so it was understandable that they would think that was the likely form of development. But it was quite clear from the condition that the levels of the development had not been approved and so there were no guarantees that the building was going to be set down.
13. I consider the Council did assess properly the impact of the proposed development on Miss B and Mr C’s property. There is a distance between Miss B and Mr C’s property and the new building of over 25m. The Council’s guideline figure for this type of relationship between buildings is 22m but with the requirement that where there are flats at first floor, as here, there should be a greater separation. I am satisfied the Council properly considered the separation between Miss B and Mr C and the new building and the assessment that the relationship is acceptable is not flawed.
14. I understand why Miss B and Mr C were unhappy as they were unaware of a change in the development from what they were expecting. The Council considered the proposed levels of the development and the relationship to them was acceptable so it did not consult them. I cannot say this was fault as there was no requirement for the Council to consult in such circumstances. However, although it does not reach the threshold of fault, I consider it would, in this case, have been better if they had been notified of the proposed levels. They had been given information before the planning application was approved which showed the building at a lower level and they said when commenting on the application that they were not objecting provided there were no substantial alterations to the relationship with their property. I accept the street scene drawing was only indicative but neighbours will often rely on such plans when judging what the likely impact is of the development. Councils should be mindful of that when considering amendments or detailed plans in discharge of conditions.

Back to top

Final decision

15. There was no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman