Summary: Mr X complained about how the Council dealt with planning application, enforcement and building control matters relating to land near his home. He also alleges a building control officer gave him incorrect advice about a septic tank. There was no fault in the way the Council made its decisions or responded to Mr X’s enquiry.

The complaint

1. Mr X complained that the Council:
• approved planning applications that affect his amenity;
• failed to take planning enforcement action against his neighbour; and
• gave incorrect advice about septic tanks.
2. Mr X says because of the Council’s actions, his amenity in his home and the value of his property is affected.

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The Ombudsman’s role and powers

3. 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)

(Local Government Act 1974, section 24A(6), 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)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
7. I gave the Council and Mr X an opportunity to comment on an earlier draft of this decision and took account of the comments I received.

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What I found

Planning and building control law and guidance

Planning applications

8. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

Separation distances

13. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
14. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
15. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
16. Although SPD can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.

Building control and building regulations

17. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
18. Building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building control officers (BCOs) to carry out this work.
19. There are two ways a building owner can get building regulations approval. These are:
• Full plans application. The owner or their agent submits plans. The plans are checked for compliance with building regulations.
• Building notice application. The owner or their agent informs the Council or approved inspector of their intention to begin building work. The BCO/approved inspector will visit the site at various stages of the work to check compliance with building regulations.
20. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

New regulations for septic tanks

21. There are building regulations that control drainage. The regulations relating to septic tanks changed recently, so now all septic tanks that discharge to surface water (river, stream or ditch etc) will require upgrading or replacement with a sewage treatment plant. The regulations apply to new and existing septic tanks, which may no longer discharge to a drainage field or water course.
22. If foul water is discharged into a watercourse, the Environment Agency may take enforcement action against the landowner and require remedial works. Landowners are generally giving up to a year to comply with the new regulations.
23. Council environmental health services may also have powers to take enforcement action against those that cause pollution or create nuisance to the public.

Background

Mr X’s complaints

24. Mr X lives in a house which is up a narrow lane. In recent years, the Council has approved planning permission for new dwellings on land besides the lane, the nearest of which is more than 25 metres from his house. Mr X’s home drains foul water to a septic tank.
25. Mr X’s complaints fall into three broad categories, which are that the Council:
• approved planning approval, which affects his amenity and his access to empty his septic tank and allowed new properties to use septic tanks, even though the access lane was too narrow for waste suction trucks to empty tanks;
• did not take enforcement action against developers of new houses, which are not built in accordance with plans and do not comply with planning conditions; and
• gave incorrect advice to him and the developer, when its building control officer said that a new design septic tank would not need to be emptied.
26. My findings on each of these issues are as follows.

My findings

Planning approvals for new developments

27. Before we investigate complaints, we need to be satisfied that there is potential for both fault and a significant injustice caused to the individual complaint by the actions of the Council.
28. For investigating evidence of fault in the decision-making process, we check the planning documents, especially the case officer’s report. This is because the case officer’s report summarises the policies, comments and issues that were considered before a decision was made.
29. For this investigation I have focused on the nearest house to Mr X. I checked the locations of the other buildings approved by the Council, but these were too far away to have any impact on him.
30. The case officer’s report for this development proposal included:
• a description of the proposal and site;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, the principle of development in the location, the design and its impact on the area, and the impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
31. The Council followed the process we would expect and so I find no fault in the way it considered this application.
32. In any case, I do not consider Mr X was caused a significant injustice by the new development nearest him. This is because it is more than 25 metres away from his home, much further than is generally considered acceptable.
33. Mr X says that the development will affect his ability to access his septic tank. Private rights of ownership and access over land are not planning considerations, and so the Council could have given no weight at all to these concerns when making its planning decisions.
34. The Council included planning conditions relating to surface water, but none to control of foul water. This is normal practice, as developers may choose how to dispose of foul water, either by connecting to a public sewer, a private sewer, sewage plant or septic tank. Whichever choice is made, the works must comply with building regulations, and I will comment more on the involvement of building control officers below.

Failure to take enforcement action

35. Mr X complained to the Council, alleging breaches of planning control in relation to several properties in his area.
36. Council planning enforcement officers visited the site. They measured buildings he had alleged were too high, but found they were built in accordance with plans.
37. Mr X had alleged other planning conditions was in breach. The Council investigated these allegations and found:
• On one condition, no breach, as construction work had not started; and
• On another condition, officers could not gain access at the time of the visit, and decided to return later to check compliance.
38. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the Council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the Council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
39. Government guidance says formal enforcement action should be proportionate, and councils are encouraged to resolve issues through negotiation and dialogue with developers.
40. The Council has followed the enforcement process we would expect, so I find no fault. In any event, I do not see that Mr X is caused an injustice by the Council’s decision not to take enforcement action against his neighbour.

Advice about septic tanks

41. Mr X complains that a Council BCO gave him and his neighbour incorrect advice about septic tanks. He says he was told that access was not an issue, as new septic tanks do not need to be emptied, but he did some research and he knows this is incorrect.
42. I have checked the Council’s site visit notes, which include its response to Mr X’s enquiry. The notes show the BCO was aware of Mr X’s concerns but checked with a waste service company who said that they have a small truck that could access the site to empty the new septic tank.
43. I have no record to prove what was said or understood by what was said in the conversation Mr X had with the BCO, but the evidence in the Council’s site visit records shows the BCO understood the new septic tank needed to be emptied. I have seen no evidence of fault in the way the building control service dealt with Mr X’s concerns.
44. However, even if the BCO had given incorrect advice to Mr X, I would not be able to show he was caused an injustice by it, because:
• he did not act on the advice to buy a new septic tank;
• if his neighbour does not empty the new septic tank and pollution or nuisance arises, Mr X can report the matter to the regulators, the Environment Agency or the local environmental health service;
• my own research found that there are companies that manufacture small waste suction tank vehicles, that can access narrow lanes and carry up to 900 litres of foul water; and
• as a landowner, he is subject to the new regulations on septic tanks, and if he is in breach of them, it will be his responsibility to find a way to comply. Mr X says he has been contacted by the Environment Agency about replacing his septic tank. The Agency is not a body within our remit.

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Final decision

45. I have completed my investigation, as there was no fault in the way the Council dealt with Mr X.

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Investigator's decision on behalf of the Ombudsman