Summary: Mr X complained about the way the Council decided his neighbour’s planning application and dealt with their actions when carrying out the development. He complained the Council failed to protect his privacy and failed to consider drainage properly. We found there was no fault by the Council.

The complaint

1. Mr X complains the Council failed to protect his privacy when granting his neighbour’s planning application. He also complained the Council failed to properly consider flooding and the impact of the removal of a ditch along with trees and hedges. He complains his privacy is impacted and there is greater flood risk as a result of the development.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. We spoke to Mr X, considered his complaint and the information he provided to us. We asked the Council for information and considered its response to the complaint.
5. 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

National Planning Policy Framework (NPPF)

6. Paragraph 58 of the NPPF states that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

What happened

7. In February 2020 a developer submitted an application to build two houses on land adjacent to Mr X’s garden.
8. The Case Officer’s report stated the original proposals had been considered too large, with unacceptable impact on other nearby houses. It stated a revised design was submitted with a smaller footprint. This was considered acceptable in terms of design and appearance, use of materials and parking. The principle of development was acceptable.
9. The report considered the impact on neighbouring amenity. This included the impact on Mr X’s property. The case officer noted the separation distance between them would be over 20m. The Council found there would not be a significant detrimental impact on any nearby neighbours.
10. The plans showed that the existing hedge and fence on Mr X’s boundary with the site would be retained, but cut back where it was closest to the new properties. The Council applied a condition which related to trees and hedges. It stated all the ‘existing trees, shrubs or hedges to be retained on site’ should be protected by suitable fencing during construction.
11. A separate condition required the developer to submit a landscaping plan showing soft and hard landscaping and details of any new planting proposed.
12. In terms of flood risk, the Case Officer’s report noted concerns about a high-water table adjacent to a small brook to the north of the site. The Council acknowledged there was a brook but this was outside of development site boundary. The report stated planning officers had checked the Council’s records and government information about potential for flooding. It found there was no information to indicate flood risk was an issue.
13. Because the site is less than one hectare in size, no flood risk assessment was required. The information submitted with the application noted it was likely there was an aquifer beneath the site and this should be considered when designing the infrastructure of the site. The approved drainage plan noted that the site was not suitable for a soakaway system. As a result, the developers had followed the water company’s policy for connections to sewers. The Council considered the plans for drainage and after some amendment and further information, they found they were acceptable.
14. The planning application was approved subject to conditions.
15. In November 2020 the developer submitted the landscaping plan the Council required. The plan showed the new planting and hard landscaping proposed, but it also showed that in some places, they intended to remove the existing hedge in favour of erecting fencing. This was a change to the original proposals. The Council accepted the revised landscaping plan.

Mr X’s complaint

Privacy

16. Mr X told us he accepted the position of the houses as he should have been afforded privacy by the existing hedge which was around 10ft tall. However, when the development began the developer removed some of the existing hedge. Work started in mid-August 2020. The developer told Mr X the hedge removal was necessary and the hedge would be replaced with fencing.
17. Mr X stated he would have raised it as an issue at the outset had he known the hedge was to be removed. Mr X contacted the Council about the removal of the hedge in September 2020.He complained further in November 2020. Mr X stated as well as the existing hedge removal, no protective fencing had ever been erected as the Council had required.
18. The Council visited the site and agreed the lack of protective fencing constituted a planning breach. The officer stated they had raised it and the developer assured them it would be erected. The officer also agreed the revised landscaping plan showed the hedgerow would be kept in places where it had now been removed and this was a further planning breach. He told Mr X he had requested a revised landscaping plan so the differences from the approved plans could be considered.
19. A revised landscaping plan was submitted showing that parts of the boundary that were previously hedgerow would now be 1.8m fencing. The Council told Mr X it had approved the revised plan in February.
20. In February Mr X reiterated that the protective fencing had still not been erected and some damage appeared to have been caused to one of his trees. The Council told Mr X he had again been advised by the developer that it would be erected as soon as possible. This was later done.
21. Mr X also noted that the developer had since removed more of the hedging along the boundary and replaced it with fencing, so it did not comply with the revised landscaping scheme approved in February.
22. The Council told us it visited the site in May 2021 and it assessed the situation against the approved landscaping plan. It noted there were deviations from the revised plan. The hard surfacing was different, less trees had been planted and there a grassed area had been omitted. The developer submitted a revised plan showing the development as built. The Council considered and approved this plan in June 2021.

Drainage

23. As part of his complaints, Mr X expressed concern about the drainage arrangements on the site. He noted a ditch/brook at the end of the site had been filled in. He stated this caused water to back up in the part of the ditch that was in his garden.
24. The Council stated the ditch was outside of the development site and not something it could consider. It explained its view on the drainage issue. It stated that there was an approved scheme to deal with surface and foul water drainage. It set out relevant comments from a number of consultees. Building Control noted that some of the drainage work on site was slightly different to the work approved, but that it was an improvement, so it justified no action. The Council explained comments from the Local Lead Flood Agency (LLFA) in which it determined there was insufficient grounds to consider any action.
25. The Council noted in response to the complaint that the developer had proposed a solution to issues Mr X had with surface water flooding in his garden.

Was there fault by the Council

26. There were breaches of planning control relating to the landscaping and removal of hedgerow. When these were reported, the Council sought revised plans to consider. Government guidance states that councils should take a proportionate approach. It is common practice to seek amended plans and to consider whether the situation on the ground, or the actions proposed in revised plans are acceptable. If the changes to the approvals are inherently acceptable, it would generally be considered disproportionate to take formal planning enforcement action.
27. In this case, having considered the revised plans, the Council decided that the proposals for landscaping, although different to the original plans, were acceptable. The proposals included 1.8m high close boarded fencing as a boundary treatment rather than the existing hedge I recognise that Mr X is unhappy that the existing hedge has not been kept, which was the position set out in the original plans. However, I found that approving the new proposals for boundary treatments was a decision the Council was entitled to take.
28. There is evidence that drainage and flooding were issues that the Council considered when making the decision to approve the planning application. There was no requirement to obtain a flood risk assessment for the site given the size of the site. The Council was satisfied that there was no significant risk of flooding after checking information held about the site. I note the plans had identified that the site would not be suitable for a soakaway and it proposed another form of drainage was used. The Council has since satisfied itself that the actions taken in terms of drainage are acceptable. I found no fault in the way the Council reached its view on this. As a result, I have no grounds to question its decision.
29. As I found no fault in the Council’s actions, I have completed my investigation and closed my file.

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Final decision

30. I found there was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman