Summary: Mr X complained the Council failed to properly deal with a planning application for developing a site adjacent to his home. He complained the site levels were raised and it was unreasonable for the Council not to take enforcement action. We found there was fault because the site level changes were not picked up when the application was decided. On balance we did not find the outcome of the planning application would have been different. However, the Council agreed to review its processes and procedures and made a payment to Mr X.

The complaint

1. Mr X complains the Council failed to properly consider his amenity when it decided a planning application in 2016. The application was to develop a site adjacent to his property.
2. He also complains that the Council should not have allowed the developer to increase the ground level when discharging planning conditions in 2019 and it failed to consider the impact of this. Mr X complains the development causes overshadowing and affects his privacy unduly.

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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)
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. I spoke to Mr X and considered the information he provided. I looked at the relevant planning documents and photographs of Mr X’s property and the development site. I asked the Council for information and considered its actions and its response to the complaint.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

7. Mr X lives next to a former commercial site that was subject to a planning application for 18 houses. The application was decided in 2016.
8. The case officer noted objections to the development and responses from statutory consultees. One objector stated that drainage from the site ran on to neighbouring properties and the drainage from the site needed to be sufficient to take run off away.
9. When assessing the development, the case officer noted the development was close to two houses. Mr X’s property is adjacent to the site. The officer concluded there would be no detrimental impact to the amenity of either property. When considering the impact to Mr X’s solid fuel heating system, the officer stated “The proposed dwellings are set at least 6m from [Mr X’s property], and at least 10m from any chimney. The dwellings are no more than 8.5m in height.” In the absence of evidence, the officer decided there would not be a detrimental impact to airflow reaching the chimney.
10. Site visit notes made by the case officer do not comment on ground levels. However, a topographical plan submitted with the application showed the existing ground levels of the site in the area adjacent to Mr X’s property as 17.26. A drainage statement was submitted with the application. This referred to a finished floor level for the plot nearest to Mr X of 18.35. This was 1.1m higher than the existing ground level. However, there is no reference in the Committee report to existing site levels and no comment or assessment is made about the requirement to increase ground levels or the impact of doing this.
11. The application was approved by the planning committee subject to conditions. The Council told us it considered the change in ground levels had been overlooked when it approved the original planning application.
12. More recently plans were submitted to discharge a condition about drainage. The submitted plans showed the ground level of the nearest plot to Mr X had been increased further to 18.65. This was an increase from the approved plans of 0.3m, but an overall increase from the original site level of 1.4m. Members of the public are not routinely consulted regarding applications to discharge planning conditions, and they were not in this case.
13. In July 2019, after construction began, Mr X reported that the height of the house adjacent to his garden was 1.6m higher than the original ground level. A large retaining wall had been built behind his boundary fence raising the ground level of the new house alongside his boundary. This led to significantly more overlooking of his house and garden.
14. Mr X chased for a response towards the end of August.
15. In September a planning officer visited the site and checked the finished floor level of the nearest house to Mr X. Initially the officer found it was 0.5m higher than the original drainage plan. He decided, at that level it would not result in any significant degree of harm. Mr X questioned this. He noted the garden area had been significantly raised and the ground floor door and window were unusually high and directly overlooked his garden.
16. The officer checked the measurements and the original plans. In his response he noted that the original ground level was 17.26 and the original drainage plan showed the finished floor level of plot 15 at 18.35. He noted the revised drainage plan in approved later had increased this to 18.65. The officer stated that the actual finished floor level had been measured at 18.78, this was 0.13m higher than the final approved level. Although he acknowledged it was higher than approved, it was not significant enough to warrant enforcement action. The officer noted the actual increase in floor level was 1.52m from the original ground level.
17. Mr X complained in November about the increase in height. He felt the Council had failed to take account of the impact this would have in terms of privacy and overshadowing of his property.
18. In response to Mr X the Council stated the works were in broad accordance with the plans. It stated the separation distance between the new build and Mr X’s property met residential design guidance. The Council stated it had agreed a slab height level of 18.65m, so the difference of 0.13m did not merit enforcement action. The Council did not agree with Mr X that there had been any failure to follow proper processes and procedures.
19. In a further response to Mr X the Council accepted the report presented to the planning committee had wrongly referred to an outbuilding on his land as his house. As a result, Mr X questioned the degree to which the Council had properly considered the impact of the development on his house and garden and the separation distances involved. The Council stated it did not appear this affected the decisions it reached. The Council re-iterated its view that the deviation in height from the approved plans was minor and did not warrant enforcement action.

Was there fault by the Council

20. The Council approved plans showing a finished floor level of 18.35 and 18.65. So, when the house on plot 15 was built at 18.78, this was a relatively minor increase from what approved plans showed. I do not consider there was fault in the decision not to take enforcement action as a result. Enforcement is discretionary and Councils are expected to act proportionately.
21. That said, I found there was fault by the Council. There is no evidence the Council took account of the significant increase in ground levels proposed when reaching its decision to approve the development in 2016. It seems likely the increase in levels was not identified when making the decision.
22. Enforcement action cannot be taken in respect of the full increase in ground levels, because planning permission has been granted and one of the original plans showed an increase in site level. However, I have considered whether the Council would have approved the development, if it had not overlooked this. It appears the reason for the raised levels was related to drainage. On balance, I do not consider the development would have been refused if the increase in site levels had been identified. I recognise nonetheless that the property on plot 15 is substantially higher than Mr X expected, but the height of the new build in relation to Mr X’s property does not seem to me to be so unreasonable as to justify refusal.
23. In terms of privacy, Mr X noted significant impact of overlooking during construction. This was because a ground floor door was now largely above the level of his boundary fence. A pathway down the side of the new property is now elevated and runs along his fence line. However, the developers installed a 1.8m boundary fence along the boundary when the development was nearing completion. This has significantly lessened the impact from the door on the ground floor.
24. Mr X also questioned the impact from a first-floor window. He noted the separation distance between the new house and his boundary was not in accordance with the council’s supplementary planning guidance. The guidance predominantly relates to household extensions, but the recommended distance between a first-floor window and a neighbouring boundary is around 7.5m. The distance is considerably less in Mr X’s case. Although I recognise the points Mr X makes, councils are not bound by such guidance and I am satisfied that (regardless of the error in identifying Mr X’s property) the proximity of the new building to Mr X’s boundary was clear from the plans. So, I do not consider the consideration of the privacy of his garden was an issue that was likely to have been misunderstood when considering the application. Nor do I consider the impact to Mr X’s garden would be so significant as to warrant the refusal of the development.
25. There is some injustice to Mr X, however. Given there was fault in the original decision and the Council had not recognised this when dealing with Mr X’s complaint, he has been put to the time and trouble of making a complaint to the Ombudsman. The Council should make a payment to Mr X of £250 to recognise this.
26. The Council should also review how officers assess existing and proposed site levels when dealing with planning applications. It should consider what further training or guidance it needs to provide to try to ensure that changes in site levels are picked up and properly considered on planning applications in future.

Agreed action

27. Within four weeks of my final decision, the Council agreed to:
28. Pay Mr X £250 to recognise the time and trouble he was put to when raising his complaint.
29. Carry out a review of how officers assess existing and proposed site levels when dealing with planning applications. It should consider what further training or guidance it needs to provide to try to ensure that changes in site levels are picked up and properly considered on planning applications in future.

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Final decision

30. I found there was fault by the Council.

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Investigator's decision on behalf of the Ombudsman