Summary: Mr X complained about the Council’s decision to allow a developer to increase the final floor level of new houses being built adjacent to his home. The Ombudsman found the Council was not at fault in the way it reached its decision. There were delays in its communication with Mr X, but this did not cause a significant injustice.

The complaint

1. Mr X complained about the Council’s decision to allow a developer to increase the final floor level of new houses being built adjacent to his home. He said the decision is contrary to the plans approved by the planning committee and means the new houses will sit above the height of his fence and directly overlook his home. This will impact on his privacy.
2. Mr X said the Council’s decision has caused stress and loss of value to his house.

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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. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Town and Country Planning Act 1990.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is needed for any development or change of use of land and may be granted by a Local Planning Authority.
8. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations suggest they should not.
9. Material planning considerations include things like access to the highway, protection of ecological and heritage assets and the impact on neighbouring amenity. It does not include private interests such as impact on the value of a neighbouring property or loss of light.
10. When considering complaints about planning applications, we look for evidence the Council followed a proper process before making its decision. We expect to see evidence the Council has identified the material planning considerations raised by the application and properly considered them.
11. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application. The Ombudsman will not come to a view on the merits of the planning application. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission.
12. After a developer is granted outline planning permission, they must apply for reserved matters approval. An application for approval of reserved matters is not a planning application, so there is no statutory duty for a council to carry out consultation. Reserved matters can include:
• Appearance – the design and materials for a development.
• Access – details of how the development is accessed from roads and paths outside the site.
• Landscaping – showing how the development site will look, including details of plants and trees to be used.
• Layout – plans show where buildings, routes and spaces within the site are laid out in relation to each other as well as areas outside the site.
• Scale – information on the size of the development, such as the height width and length of a proposal. This is often shown in a scaled plan.
13. When approving reserved matters, councils may impose planning conditions. This requires the developer to provide details of specific aspects of the development which are not included in the outline permission or reserved matters. The developer must satisfy the condition and apply to the council for it to be discharged.
14. A grant of a reserved matters application, together with plans and conditions included in an outline approval, amounts to full planning permission.

What happened

15. I have summarised below some of the key events relevant to Mr X’s complaint. This is not intended to be a detailed account of what happened.
16. Mr X lives on a housing estate bordered on the East side by a site the Council set aside for residential development. Having bought the site, the developer sought outline planning permission to build a new housing estate on the land.
17. The Council carried out consultation and Mr X made objections on 3 June 2019. He mentioned concerns about privacy due to the developer’s plans to raise the height of the new houses to help with flood issues.
18. The local planning committee considered the developer’s reserved matters application in June 2019. The committee considered the scale, layout, appearance, and landscaping of the site. The committee approved the application, but with several conditions.
19. One of the conditions, condition number 6, related to slab levels. It needed the developer to give the Council precise details of the existing site levels, proposed site levels, and finished floor levels of the proposed houses, for the Council to approve.
20. The developer applied to discharge condition 6 on 27 August 2019. The Council noticed the developed planned increase ground levels at the site, so it wrote to the developer asking it to explain why.
21. The developer replied on 10 October 2019. It provided further details of the existing and proposed new floor levels for the site. It said levels for some of the plots bordering to Mr X’s housing estate are higher because the Environment Agency said the site must have a flood bund (or flood bank) of 5.6 metres.
22. The Council confirmed the developer’s plans were acceptable and said the condition was satisfied on 18 November 2019.
23. Mr X complained to the Council on 9 March 2020. He was concerned the developer was building up the level of the ground behind his property to 5.6m or 5.8m. He said the developer only had permission for a maximum height difference of 500mm. He suggested the change was unlawful, invaded his privacy, and would devalue his property. Mr X also raised concerns about flood water being diverted to a ditch behind his property.
24. The Council told Mr X none of the relevant consultees raised any objections or concerns about drainage at the site. Anglian Water said the local water recycling centre had capacity for the development but asked the developer for a drainage strategy. This was a condition of the planning permission. The Council said these matters were revisited as part of the reserved matters application in June 2019 and there were no objections.
25. Because of a typographical error on the approval notice the Council issued in November 2019, it approved the floor levels at the site again on 19 March 2020. It confirmed it considered the developer’s drawings of the site, along with its letter from October 2019, and its plans were acceptable.
26. An officer from the Council’s planning compliance team emailed Mr X on 20 May 2020. They said the developer’s permission to build houses was subject to several conditions being complied with to the Council’s satisfaction. Condition 6 required the developer to give precise details of the existing site levels, of the proposed new site levels, and of the finished floor levels of the proposed houses.
27. The compliance officer said the Council approved the new floor levels on 18 November 2019. After further consideration, the developer gave details of a change to the damp proof course levels for houses to the rear of Mr X’s estate. The Council approved the change on 19 March and condition 6 was discharged.
28. Mr X replied on 26 May. He was unhappy with the Council’s decision and questioned why it was important for houses to be above the 5.6 metre flood bund when the original plans showed houses below this. He accused the Council of approving the new levels in secret. He said the developer initially planned to build the houses behind the flood bund, not raise the height and build on top of it. He said this was a material change.
29. Mr X emailed the Council again on 7 June. He asked for answers why the current site looks nothing like what the Council presented to the planning committee in June 2019. He said the site in its current state would not pass a planning application due to privacy breaches. He asked why the Council had not protected neighbours’ amenities.
30. A compliance officer replied on 8 June. They said they could not provide the answers to some of Mr X’s questions. They asked planning officers to respond to Mr X instead.
31. A planning officer emailed Mr X’s local councillor on 24 June. They confirmed the developer was preparing a sectional drawing to better show the relationship between existing houses and the proposed plots. The officer confirmed they had produced a schedule showing the boundary measurements of the site, the proposed houses, and the difference in levels. The officer said, broadly speaking, the approved levels are similar to those suggested to the committee in June 2019. There had been a general increase of ground levels of 50cm when viewing the measurements as a whole. Individual measurements vary, but this was considered by the committee and by officers when discharging condition 6. The officer said distances between the houses was over 20 metres, and that over such a distance a height of one metre is not significant. It equates to a gradient of 5%, or less than 3 degrees above flat level. The officer considered this to be relatively minor. The officer said it would be hard to notice a 20cm increase in ground height over this distance.
32. On 13 July, a planning officer told Mr X the planning committee considered the reserved matters application. It looked at scale, layout, appearance, and landscaping. The officer said, as far as they are aware, those matters have not changed. They said views from existing houses will change, but this is not a material consideration. The Council considered issues of privacy when it approved the floor level details given by the developer.
33. Mr X argued the Council did not mention in its presentation to the planning committee the floor levels could rise. It said they would be no more than 500mm higher than existing residents. Mr X said the floor levels will now be level with the top of his fence. He said some plots had increased by 1.25 metres. Mr X considered the Council should have made the developer put in a new planning application as the character of the development had changed. He asked the Council to provide minutes from the meeting where officers considered the developer’s request to raise the floor levels.
34. The Council replied on 14 July. It said there is no proposed house near to Mr X with a floor level higher than the top of his fence. In addition, all new houses will be more than 20 metres away from Mr X’s house. The Council confirmed 20 metres is the standard minimum distance it considers is needed to protect privacy.
35. The Council also said the floor levels condition was a requirement placed on the developer’s planning permission and was to safeguard neighbouring residential amenity.
36. Council officers met with Mr X on site on 21 July to discuss his concerns. The Council then wrote to Mr X on 30 July with its findings. It said:
• Reserved matters do not include floor levels and so the planning permission has a separate condition to require the developer to give level details. The planning committee only considered the reserved matters. It did not need level details. The developer sent level details later. It is common for major development to evolve as they are built and progress through more detailed technical approval processes.
• The planning committee did not need to reconsider the application because of the level changes. What amounts to a material change is a matter of judgement and varies case by case. The Council did not consider there was a material change. While there was a difference between what the developer showed for the reserved matters application, this was an acceptable approach considered on its merits.
• Planning involves change which can cause impacts which some consider unacceptable, and others accept. The back-to-back separation distance of 20 metres between the windows of the houses is widely accepted as a reasonable balance to safeguard amenity.
• The planning process recognises some changes will involve harm, but it is only intended to prevent development where the harm is unacceptable. Planning must look at all material considerations in the round. Loss of value is not a material consideration.
• The committee report gave an idea of the floor level changes expected and shows plots should be within 500mm of existing levels. That was broadly correct. The drawings the planning committee will have considered show the change would be between 0 and 1 metres.
• While the developer gave reasons for the change in levels, this does not mean the Council has to approve them. The Council considered the impact of the levels when assessing the application. It considered to the planning issues and made a balanced judgement for the district. The nature and character of this development has been subject to consultation with public, parish council, and technical stakeholders.
• It did not pass new heights for the land. Unfortunately, the decision notice of November 2019 failed to specify the correct drawings, but the approved levels remained the same from the August 2019 submission. When the developer made the Council aware, a different officer considered the application again. The Council reissued the decision notice in March 2020 with the correct drawings referenced.
• There are no minutes of meetings for its decision because an application to discharge a condition is considered by an officer under delegated authority. The application in this case was considered and discussed by a planning officer, their line manager, and later a different planning officer in March 2020.
• Officers considered the impacts of the proposed levels on residential amenity and the character and appearance of the area. They found the details acceptable. This is a matter of judgement. The Council has explained this is because of the degree of separation involved (more than 20 metres) and the orientation of the nearest new property being offset at an indirect angle. Both of those remain unchanged, even if the final levels applied for are different to those suggested in the reserved matters application. The levels applied for were not secret and are online.
• It would not revisit the decision. The developer acted in line with the requirements of the outline planning permission and the Council considered the details of the applications submitted to be acceptable.
• Its investigation into whether there had been any breaches of planning control by the developer remained ongoing.
37. The Council sent its final complaint response on 21 August 2020. It apologised for delays responding to Mr X. It said the information he sought meant it had to liaise with several officers as this was not as efficient as it wished. It said it would remind officers about responding within suitable timescales and escalating complaints through proper channels. It confirmed it put Mr X’s complaint on hold due to the site visit on 21 July to allow his early concerns to be addressed.
38. The Council followed up on the site visit with a detailed written response to Mr X’s questions, but since then he raised a further issue about the Design Expectations Validation Form for the site. The Council confirmed this was not needed because the form came into effect after the developer applied for planning permission.
39. The Council ended by saying it had considered and addressed the issues Mr X raised.
40. Mr X brought his complaint to the Ombudsman on 24 August 2020. Mr X told me about a similar planning enforcement case the Council considered. He said in that case, the developer raised floor levels by up to 750mm and the Council found this was a material change.
41. In an internal Council email dated 24 November 2020, an officer confirmed the developer offered to reduce the heights of two plots near to Mr X by 150mm. The developer also agreed to negotiate with Mr X about the boundary height and suitable treatment. The officer considered the Council would accept the 150mm decrease by non-material amendment or a new application from the developer to discharge condition 6.

Response to my enquiries

42. The Council told me the land behind Mr X’s home has been allocated for residential development for several years. The main concern the Council considered was the impact on privacy, as the distance to the new houses is too great for there to be any loss of light or outlook.
43. The Council considered the degree of change between the expected floor levels and the permitted floor levels is minor, because of the distances between the houses. While a degree of visual relationship was always expected, the approved floor levels are not greatly different to Mr X’s expectations and are not harmful. These are matters of professional judgement.
44. The Council said the development it took enforcement action against, which Mr X referred to, is not comparable. In that case, there were various significant breaches of planning control. There is no breach in this case. The added height in the case Mr X referred to was more than one metre beyond what it approved, and the houses are only 10 metres away from neighbours. The new houses in this case are more than 20 metres from Mr X.
45. The developer in this case asked to increase floor levels to comply with requirements from the Highway Authority and because of flood bund levels needed by the Environment Agency. The Council asked for more drawings from the developer and considered potential amenity impacts before approving the floor levels.
46. It is standard practice for the Council to consider discharge of planning conditions at officer level without the need for the planning committee or consultation.
47. As well as the case officer recommendations, a more senior officer reviewed the discharge request before issuing the decision. This is a failsafe to ensure sound, reasoned decisions, and ensures they are double checked. Because the Council had to re-issue the discharge notice, it reconsidered the request through the same process. In effect, the request was considered twice. The Council said the discharge request was considered by several officers and is not the view of a single officer.

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Analysis

48. Mr X could comment on the developer’s application before the planning committee considered the reserved matters. He raised concerns about privacy due to the height of the new houses, however the committee considered the plans were acceptable. The Council was aware of Mr X’s concerns and has shown it considered the impact on residential amenity when it approved the developer’s request to discharge condition 6.
49. Officers did not consider the higher floor levels was a material change, or that the harm it would cause was unacceptable. The Council explained why a similar planning enforcement case was not relevant. It also explained the relevance of the separation distance between the houses and how this influenced its decision that the change was not significantly different to the impact expected from the original plans.
50. Mr X may disagree, but that was the balanced judgement of planning officers and it is not my role to come to a view on the merits of the decision.
51. Mr X is unhappy the Council did not make the developer re-apply for planning permission. On the evidence seen, the process ran as expected. The planning committee approved the reserved matters, and a condition was imposed so that more accurate floor levels could be confirmed and agreed later. There was no duty or requirement for the Council to ask the developer to apply for permission again. The condition was put in place so the Council could scrutinise the final floor levels. If it considered the levels were unacceptable it could have refused or asked the developer to amend them.
52. I have not seen evidence of fault in the way the Council reached its decision.
53. The Council admitted a minor error in its decision notice from November 2019, which discharged condition 6. It corrected this in March 2020 and there was no material change. No injustice therefore arose from that error and I do not consider it was significant enough to lead to a finding of fault.
54. The Council also admitted delays in responding to Mr X and not escalating his complaints. Despite the delays, the Council did consider Mr X’s requests and complaints. It provided answers and a final complaint response, so I do not consider Mr X suffered a significant injustice. The Council apologised and said it would remind officers about this. This is in line with what the Ombudsman would recommend.

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Final decision

55. I have completed my investigation. The Council was not at fault in the way it reached its decision. There were delays in its communication with Mr X, but this did not cause a significant injustice.

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Investigator's decision on behalf of the Ombudsman