Summary: The Council failed to notice discrepancies in plans which were submitted with a planning application, and it discharged a planning condition without all the required details. The Council has agreed to apologise and make a payment of £200 to Mr B and to take action to prevent similar failings in future.

The complaint

1. Mr B complains about how the Council dealt with planning applications to build a house adjacent to his home. Mr B says the Council’s decision to grant planning permission was based on incorrect information; he says the difference between the height of his house and the new house is much greater than shown on the plans. Mr B considers the Council’s decision has resulted in an overly dominant house which adversely affects the privacy and light to his garden and the character of the area.

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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)
5. When we investigate a complaint about a planning decision, we consider whether there has been any administrative fault in the way the application has been decided which may call into question the decision. We do not consider the application afresh on its merits; we look only at the process followed by the council when it reached the decision.
6. When a council considers a planning application it should consider the impact it will have on neighbouring properties. But it is not the case that councils must refuse planning permission for development that will have an adverse impact on other properties. Councils must assess the degree of impact and decide if it is so great that it should refuse the application. This is a judgement the council makes taking into account all the relevant information. Provided the council carries out the assessment properly then we cannot question the decision it has made.
7. If someone carries out development which is not in accordance with the planning permission, the council should investigate to decide if it should take any action. Councils cannot police development that is carried out and deviations from the approved plans will usually only come to light when neighbours report it.
8. If the council finds that development does not comply with the planning permission, it has to decide what, if any, action to take. It is not the case that all breaches of planning control will mean that formal action (which is called enforcement action) will be taken by the council. This is because it should only take such action if it considers the deviations from the approved plans are unacceptable. If the council would have approved a planning application for the development, had it been submitted, it should not take formal action just to regularise the situation.

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How I considered this complaint

9. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• considered information on the Council’s website;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Overview

10. In 2014, the Council received a planning application to build a four-bedroom house on land adjacent to Mr B’s house. The Council granted permission subject to conditions.
11. The development was not built, and the developer sold the land. A new planning application was then made in 2017 to vary the plans previously approved. The applicant sought to add a rear extension and detached garage. The application was referred to the Council's planning committee for determination and permission was granted.
12. Both the 2014 and 2017 permissions included a condition requiring the applicant to submit details of the finished floor levels to the Council for approval before commencement of works. The developer submitted details in 2018 and the condition was discharged.
13. After building works commenced, Mr B contacted the Council because he thought the house appeared taller than it should be. Enforcement officers from the Council visited the site but decided the new house was being built in accordance with the approved plans.
14. The Council told Mr B that his house had not been accurately depicted on the plans which made the height difference between the two houses appear less. It also explained that when the Council discharged the planning condition, it approved finished floor levels which were 420mm above the surrounding ground level.
15. Mr B considers the decision to grant permission was based on flawed plans and both the planning application and application to discharge the planning condition would not have been approved if the plans had correctly shown the height difference between his house and the new house. He says the new house is overly dominant and adversely affects the privacy and light to his garden and the character of the area.

Analysis

16. The plans submitted by the applicant were not accurate. The street scene plan for the 2017 application wrongly depicted the height of Mr B’s house, showing it to be taller than it is. The drawings also showed the ridge height of the house ranging from between 8 metres above ground level to 8.43 metres above finished floor level. The Council did not notice these discrepancies; this was fault.
17. I have considered whether this fault affected the decision to grant planning permission for the application submitted in 2017, or the decision to discharge the condition relating to floor levels in 2018.

Planning application (2017)

18. If the Council had recognised the discrepancies in the plans, it would have required the applicant to submit accurate plans, which would likely have shown the height of the house to be 8.43 metres above the finished floor levels. It appears that the height of the house was not given any consideration by the Committee because the officer’s report wrongly states that the height of the new house would be unchanged from the 2014 application. As the Committee believed planning permission had previously been granted for a house of the same height, it would not have been able to justify refusing the proposal on the basis of its height. And so the plan which wrongly depicted the height of Mr B’s house is unlikely to have been given much consideration.
19. If there had been no fault, and the Committee had been presented with accurate plans, it is likely that the increased height of the house would have been given proper consideration by planning officers and the Committee. The plans show that the ridge height of the new house would be between 200 and 630 mm more than approved in 2014. On the balance of probabilities, I do not consider the increase is so significant that it would have led the Council to refuse planning permission. I therefore do not consider the Council’s failure to notice the discrepancies in the plans affected the decision to grant planning permission.

Discharge of condition (2018)

20. The planning condition required the submission and approval of details of the proposed finished floor levels of the buildings in relation to the existing and proposed levels of the site and the surrounding land. The plans did not show existing levels, and so it was not possible to determine the difference between the existing and proposed ground levels. The Council should not have discharged the condition without this information. This was fault.
21. The officer’s report on the discharge of condition application states, “The dwelling will sit on a slightly elevated level to the neighbouring property…. however the relationship is considered to be acceptable. By lowering the land level on which both the dwelling and the garage will be sited on will reduce the impact upon the neighbour and reduce the potential for the dominating impact both on the neighbour and when viewed from the main highway.”
22. The approved plans of the proposal show the surrounding ground level to be similar to the ground levels surrounding Mr B’s property. The Council has visited the site and considers the land level has been lowered and is now of a similar level to the land surrounding Mr B’s house.
23. I am satisfied that the Council was aware that the new house was taller than Mr B’s house, and that by approving the discharge of condition application, it would result in the new house sitting approximately 420mm higher than Mr B’s house, and it considered this relationship to be acceptable. I do not consider the outcome would be any different if there had been no fault here. On the balance of probabilities, I consider it likely that the Council would have approved the application to discharge the condition if all of the plans had accurately depicted the height of the new house and the height of Mr B’s house and had included the existing site levels.

Enforcement investigation

24. The Council considers the house and garage have been built in accordance with the approved plans. I have considered how it reached this view.
25. When planning permission was granted, the plans showed that excavation works would be carried out to set the garage lower into the land, and the finished floor level would be approximately 500mm lower than the finished floor level of the house. The plans submitted to discharge the planning condition showed that the finished floor level of the garage would be 540mm lower that the house.
26. The Council carried out a site visit and was satisfied that the site levels beneath both the garage and house had been lowered, but as it did not have the previous site levels, it could not determine how much the levels had changed. The architect’s plans which the builder was working from indicate that the land levels where the garage has been built were previously 650mm higher, and that the finished floor level of the garage is now 540mm lower than the house. On the balance of probabilities, I consider it likely that the land where the garage has been built was lowered in accordance with the planning permission. I have found no evidence of fault in the way the Council decided there was no breach of planning control here.
27. The plans approved in 2017 showed the house would have an eaves height of 5.6 to 5.8 metres above ground level and the plans submitted to discharge the planning condition showed an eaves height of 5.4 metres above the finished floor level. The Council has visited the site and taken measurements. It says the eaves have been measured as 5.4 metres above the finished floor level and 5.8 metres above ground level. I have found no evidence of fault in the way the Council has decided there was no breach of planning control here.
28. Mr B considers the roof (from eaves to ridge) is taller than approved. The ridge height in the approved plans is between 8 metres above ground level and 8.43 metres above the finished floor level. The Council has visited and measured the ridge height to be approximately 8.4 metres above the finished floor level. This accords with the site section plans for the 2017 permission and the 2018 discharge of condition application. I have found no evidence of fault in the way the Council has decided there was no breach of planning control here.

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Agreed action

29. The Council says that it has advised officers about the importance of ensuring neighbouring dwellings are drawn accurately and portray a true depiction of the relationship between existing and proposed buildings. It has also decided to provide training to enable its officers to have a clear understanding of the importance of requesting and interpreting details of existing and proposed site levels.
30. Within four weeks, the Council will also apologise to Mr B and make a payment of £200 to recognise the time and trouble he has been put to as a result of the failings identified in this case.
31. Within eight weeks, the Council will:
• Put in place a procedure requiring its officers to check the accuracy of all plans submitted with planning applications, to ensure the measurements in each of the submitted plans is the same, and they properly represent the relationship with existing buildings.
• Provide evidence to show that it has taken the action detailed in paragraph 29 above.

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Final decision

32. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman