• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to specify ground levels on a development site adjacent to his property and failed to take prompt action when he first complained. Mr X says the new properties have been up built up to five metres above existing ground levels and are overbearing and impact his outlook and privacy. The failure to include ground levels was fault but the development does not cause an impact significant enough to warrant refusal of the application. The Council took too long to tell Mr X ground levels had not been specified and this was fault.

The complaint

1. Mr X complained the Council failed to include any ground levels on a sloping development site adjacent to his property and failed to take prompt action when he first made complaints. He says that as result the new properties have been built at a level of up 5 metres above existing ground levels.
2. Mr X says the properties are overbearing and impact on his outlook.

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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 complaint and the documents provided by the complainant;
   • made enquiries of the Council and considered the comments and documents the Council provided;
   • discussed the issues with the complainant;
   • sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

What I found

6. Mr X first contacted the Council in 2017 raising concerns about the development on a site next to his property. Mr X was concerned the property was too close to his house and that his privacy would be affected. The Council responded saying it would treat this as an enforcement issue and would visit the site.
7. The Council contacted Mr X again on 3 October 2017. It explained the building should be 6 metres from the boundary and that he should contact the Council again if this is not the case.
8. Mr X’s next contact with the Council was in December 2018. Mr X raised concerns that the property was being constructed at a high elevation and he raised concerns about the impact this would have on his property. The Council responded saying it had been in contact with the developer who said it had not commenced the build on the plot and that it would be built in accordance with the planning approval.
9. Mr X contacted the Council again in February and September 2019. He said building had started and the land appeared to have been raised by 10 feet. He was concerned the building was close and high and asked if the Council could go on site and check the development.
10. The Council emailed Mr X on 20 September 2019 saying it had visited the site but not taken any measurements. The Council confirmed the new property would be higher than his property. The Council contacted Mr X two weeks later saying it would be visiting the site that week and may need access to Mr X’s garden. The site visit was conducted and the Council noted that the development was still at foundation level.
11. In March 2020, Mr X contacted the Council again asking it to visit and take measurements. Mr X raised concerns about the height of the new properties and asked if this was on the original plans.
12. The Council and a surveyor visited the site and took measurements in July 2020. Mr X then contacted the Council regularly asking for an update following the site visit. On 25 August the Council contacted the developer and gave measurements of the house. It explained the built height of the house was 8.5 metres and it should be 8.1 metres.
13. Mr X continued to contact the Council asking for a response. On 7 September the Council wrote to Mr X saying it had measured the site and the approved plans did not include any information about levels. It said it was liaising with the developer to ensure the house is the correct height but as there was no information about levels it could not state the correct ground level had been used. Mr X, unhappy with this response, emailed the Council saying he would be making a formal complaint as the Council seemed to be saying that as long as the actual house is correct it didn’t matter how high the land had been built up.
14. Mr X made a formal complaint to the Council the same day and it replied on 29 September. The Council noted the planning application submitted in 2014 included a site section plan which showed the height of the plot closest to Mr X’s property but the subsequent application to vary conditions did not contain any site sections. As a result, the developer can raise the land levels. The Council said while the lack of information on levels was regrettable, it had considered the impact on residential amenity when determining the planning application. It said the officer report notes the distance between the two properties and that it is sufficient to ensure there will be no loss of privacy. It concluded that the lack of information on levels was regrettable but would not have resulted in a different outcome.
15. Mr X escalated his complaint to stage two of the Council’s procedure and the Council provided a further response on 16 November. It said one of the main functions of the planning system was to manage the approval and construction of new development in such a way that significant harm to the public interest does not arise and this includes consideration of impact on existing residents. It said while there was a clear error in this case, it noted there was significant distance between Mr X’s home and the new property. It noted the elevation of the new property facing Mr X contained only two small windows. This was an obscure glazed window at first floor level and a window to a utility room on the ground floor. The Council said that while Mr X’s outlook had been changed as a result of the development, it did not consider there was a loss of light, overbearing impact or loss of privacy sufficient to warrant a refusal of planning permission for the new dwelling.
16. Dissatisfied with this response, Mr X complained to the Ombudsman.

Analysis

17. The Council accepts that it failed to specify ground levels when approving the planning application for development on the site adjacent to Mr X’s property. This was a clearly sloping site and so it was evident that there would need to be some levelling of ground levels in order to build. The failure of the Council to specify ground and floor levels means that regardless of how high the developer built up the land, the Council would be unable to take enforcement action. The Council describes this as “regrettable” but I consider this is fault.
18. As there is fault in this case, I have to consider how Mr X is affected. The Council takes the view that there was insufficient harm to Mr X’s residential amenity that would have warranted refusal of the planning permission. It has provided reasons for taking this view such as the distance between the properties and the size and nature of the windows in the facing elevation. While I appreciate Mr X may not agree with this assessment, I am not persuaded the Council’s assessment is wrong. In reaching this view I have seen photographs of the development, looked at google maps and taken advice on the merits of the Council’s argument. I am therefore not persuaded the outcome of the planning application would have been significantly different but for the fault in this case.
19. However, I do consider Mr X was put to avoidable time and trouble pursuing this matter. Mr X first contacted the Council in 2017 and put the issue of raised land levels to the Council in February 2019. It took the Council until 29 September 2019 for the Council to confirm it had not conditioned land levels and so could not take any action. I consider this was known to the Council throughout this process and it could have provided clearer advice to Mr X about the situation and its powers to take action. By failing to explain this at the outset, the Council raised Mr X’s expectations that it might take action and resulted in him pursuing the matter much longer.

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Agreed action

20. To remedy the injustice caused to Mr X the Council should, within one month of my final decision provide a written apology to Mr X and pay him £250 to recognise his raised expectations and time and trouble in pursuing this matter.

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Final decision

21. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman

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