Summary: Mr & Mrs D complained about the way the Council discharged planning conditions and dealt with alleged planning breaches for a development next to their home. There was fault when the Council failed to respond to Mr & Mrs D in 2020 and delay in starting enforcement in 2021. I am satisfied the apology the Council has already given remedies the injustice caused. We have found no fault in the way the Council discharged the planning conditions or decided not to take enforcement action.

The complaint

1. Mrs and Mrs D complain about the Council’s decision to discharge planning conditions and its failure to take appropriate and timely enforcement action against breaches of planning control, for a development next to their home. They also complain the Council did not respond when they raised concerns in 2020.
2. They say as a result the ground levels are higher than they should be, causing overlooking to their home and damage to their property due to flooding and drainage issues.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

7. I spoke to Mr & Mrs D about their complaint and considered the information they sent, including photographs and video of their land, and the Council’s response to my enquiries.
8. Mr & Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Planning permission

9. Planning permission is required for the development of land. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as views and reduction in the value of a property.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Developers must apply to the council to have conditions discharged (approved) by detailing how they intend to meet the conditions. They may also apply for the removal or variation of conditions. The local authority should discharge conditions within eight weeks of accepting the application as valid. If no decision is made within 12 weeks, the local authority must return the fee to the applicant.

Enforcement

12. Councils may take enforcement action if they find planning rules have been breached. A breach of planning control is defined as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
13. However, councils should not take enforcement action just because there has been a breach of planning control. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. (National Planning Policy Framework)
14. It is for the council to decide whether it is expedient to take enforcement action. In deciding, councils may consider:
• national and local planning policies.
• permitted development rights.
• whether the development is likely to be granted planning permission.
• whether the breach unacceptably harms public amenity, or the authorised use of land and buildings merits protection in the public interest.
• whether any enforcement action is proportionate to the breach.
• statutory time limits for taking enforcement action.
• the need to achieve a balance between protecting amenity and permitting development which is acceptable.
15. Councils have a range of options for formal planning enforcement action available to them. However, as action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
16. The Council’s planning enforcement policy (the Local Enforcement Plan) says it gives reports of alleged breaches a priority rating. For medium priority cases it may visit the site within seven days of the report, to establish whether a breach of planning control has occurred. For low priority cases it may visit within 15 days. The policy says the Council aims to close 80% of all cases within 12 weeks.

What happened

17. I have set out the key events. This is not meant to detail everything that happened nor all the correspondence between Mr & Mrs D and the Council.

The planning permission and discharge of the site levels condition

18. The Council granted planning permission in 2019 for a new dwelling to be built on land next to Mr & Mrs D’s home. The application included a block plan drawing which showed proposed ground levels as datum points. The datum point at the front of the new building was 88.99, at its rear patio (which was one metre wide) it was 88.60, and in the rear garden it was 86.98 with existing ground levels to be retained. The finished floor level for the dwelling was 88.75.
19. The reserved matters planning application was granted with a condition about site levels (condition 5) which said:
• No development shall commence until existing and proposed ground, finished floor, ridge height and hard surfaced areas levels including a datum point have been submitted to and approved in writing by the Local Planning Authority. The development shall be built in accordance with the approved details.
20. The developer applied to discharge this condition in February 2020. In March 2020, Mr & Mrs D raised concerns with the Council about the site levels as the development was in an elevated position relative to them and following ground clearance and levelling, there was water on the ground and coming onto their land. The first COVID-19 lockdown then started.
21. Mr & Mrs D contacted the Council again in August 2020, asking for details of the datum points being used. They said it was part of the planning condition that the new building would not exceed eight metres from the lowest point, which was on the corner nearest their land.
22. The Council did not respond. It discharged condition 5, approving the block plan drawing with the datum points as described above. The decision notice is dated April 2020 although the officer signed the assessment sheet in August 2020. The assessment sheet said the block plan “indicates that the existing ground levels would be retained demonstrating there would be no raising of levels towards the rear of the site and the height of the dwelling would be as approved.”

Enforcement 2021

23. Mr & Mrs D again raised concerns about the site levels and flooding of their property in May 2021. They were concerned the dwelling was being built higher than approved.
24. The Council passed their concerns to the planning enforcement team. It said the foundations had been laid and the developer needed to apply to discharge the drainage condition before progressing with the build. There is evidence the Council sent a reply on 2 July 2021 which said:
• “The application site is not located in an area at risk of flooding or surface water flooding, therefore this matter would not be addressed under the planning process. Any damage you believe has been caused to your property by the development would be a civil matter between you and the developer / landowner.
• Drainage for this site would largely be controlled under the building regulations process.
• There is sustainable surface water drainage condition … and details need to be submitted to the Council prior to the commencement of the development above damp-proof course level, which has not occurred at this stage so the developer is not in breach of this condition.”
25. The case was allocated to a planning enforcement officer on 26 July 2021. The officer visited the site on 4 August and corresponded with the developer about the plans for the finished site levels. The officer was then out of the office. A second site visit was carried out on 10 September 2021.
26. The officer completed their investigation and issued a decision on 13 October 2021. They had found that when the works began, too much soil had been removed and the development began lower than approved. This was a breach of planning control. Soil needed to be brought back to increase the site levels to the approved level. This soil had been delivered and spread and site levels now appeared to be being completed in accordance with the approved plan.
27. The Council wrote to Mr & Mrs D advising that no enforcement action would be taken as the developer was taking all necessary steps to regularise the breach. As such it was not considered proportionate or in the public interest to pursue. The case would remain open for a further site visit to check the site levels and height of the build were as approved. Mr & Mrs D remained concerned and continued to correspond with the Council.

Discharge of the drainage condition

28. The outline planning permission was granted in 2019 with a condition about drainage (condition 6). This said:
• Prior to the commencement of the development above damp-proof course level details of drainage works, designed in accordance with the principles of sustainable urban drainage, shall have been submitted to and approved in writing by the Local Planning Authority and the works shall be carried out and maintained in accordance with these details.
29. In November 2021 the Council advised the developer that condition 6 had not been discharged. The developer noted the details had been sent with the reserved matters application in 2019 and could have been discharged then, but they submitted a new application. The Council discharged the condition on 27 January 2022. The plans were for surface water runoff to be directed to a crate soakaway positioned near Mr & Mrs D’s boundary.
30. Mr & Mrs D commissioned a consultant planner. He considered a crate soakaway was not suitable for the site and was surprised that the drainage condition had been discharged when no technical information had been submitted and the ecological service had said there was a lack of information. He was concerned that development had been allowed to continue whilst there had been outstanding conditions.

Enforcement 2022

31. The enforcement officer visited the site again in March 2022. The officer measured and photographed the hardstanding, locations of the holes dug for the crate soakaway and rainwater harvesting tank, and the elevations.
32. The visit found that the rear patio was about two metres wider than approved. This meant that the ground at the rear of the house was at a datum point of 88.60 rather than 86.98 (i.e. about 2 metres higher). It then sloped down steeply by the rear fence. This was a breach of planning control. The officer determined:
• It did not appear to cause any additional harm to the visual amenity as it was outside of the public view.
• The difference in ground levels [of the rear patio] did not cause unacceptable overlooking or overbearing to neighbouring property or private garden areas. and
• The additional hardstanding [on the wider patio area] was of a permeable material which would represent sustainable urban drainage.
33. The Council wrote to Mr & Mrs D on 23 June 2022 with the outcome of the enforcement investigation. This was that, whilst there was a breach in relation to the rear patio, it was not expedient to take enforcement action due to the limited planning harm established.
34. The letter said that the crate soakaway “was also identified as not having been installed in the correct location”. It was further away from Mr & Mrs D’s boundary than approved, but this was not considered to cause detrimental harm to their residential amenity so no further action would be taken.
35. The developer made an application for a retaining wall but this was withdrawn in November 2022.

Mr & Mrs D’s complaint

36. Mr & Mrs D complained in September 2022 that:
• The Council had not properly considered the original planning application, overlooking the fact that were was a pond on the development site. The pond had since been infilled, which had caused flooding to their property causing cracks to their brickwork, damage to the surface and trees to become waterlogged and die.
• The Council had not responded to their concerns about site levels in 2020 and had delayed responding to their concerns about site levels in May 2021. This delay had allowed the development to continue unmonitored, in breach of planning conditions. The development was now two metres higher than it should have been, resulting in the developer having to submit an application to build a retaining wall and causing flooding and damage to their property. They did not agree that the damage caused to their property was a civil matter with their neighbour.
• Officers had not come onto their property to view the impact of the raised site levels, or the flooding and damage caused. A proper judgment could therefore not be made that it had no detrimental overlooking impact.
• There had been poor communications with them during the enforcement investigation.
• The crate soakaway had not been installed at the time of the enforcement site visit, nor had excavation started. It had since been installed in a more detrimental position, less than 2.5 metres from their property, which did not meet building regulations.
• The conditions were not properly considered when they were discharged and many had been breached without action being taken.
37. Mr & Mrs D said they had been through incredible amounts of stress and were frustrated by the lack of response from the Council. In addition, the Council had advised them that their own planning application for development on their land was likely to be refused due to overlooking from the new dwelling, which was unfair.
38. The Council’s response of 2 December 2022 apologised for not responding to Mr & Mrs D’s emails. The Council said:
• There had been some issues with delays and discharge of conditions, but these matters had not caused harm to Mr & Mrs D’s property.
• Drainage issues remained outstanding as the developer intended to submit revised plans.
• Ground level issues were being dealt with informally rather than through enforcement. Once these matters had been resolved it was expected the development would comply with the approved plans.
• The application site was not in a flood risk area. Property damage caused by water running onto Mr & Mrs D’s land would be a civil matter.
39. Mr & Mrs D came to the Ombudsman. They said the block plan approved with condition 5 showed existing site levels would be retained at the rear of the site. This had not been adhered to and the building to the rear of the site was two metres higher than approved. This resulted in overlooking and flooding. They noted the March 2022 enforcement visit had found a crate soakaway installed, but it had not been installed until August 2022. Finally, they were concerned the Council had no deadlines for replying to correspondence.

My findings

40. When dealing with complaints about the granting of planning permission and enforcement, the Ombudsman cannot consider whether the decision was right or wrong. It is not for me to determine whether the house has been built too high, whether drainage is suitable or whether enforcement action should have been taken. Those are decisions for the Council. My role is to determine whether there was administrative fault in the way the Council made its decisions.

Discharge of conditions

41. I have seen no evidence of fault in the way the Council discharged the site levels condition (condition 5) in 2020. I therefore cannot criticise its decision to approve the datum points on the block plan. These show that the finished floor level of the house was to be 88.75. The datum point of 86.98 relates to the land behind the house, next to the rear patio at 88.60.
42. The developer sent the drainage details with the reserved matters application in 2019, but the drainage condition (condition 6) was not formally discharged until January 2022, after the developer submitted a new application.
43. The condition meant the developer could start putting in drainage without submitting a scheme, as long as the building did not go higher than the damp-proof course. I note that the foundations had been laid by June 2021. The drainage plans were re-submitted in November 2021. I consider it likely that the build had progressed beyond the damp-proof course level by then. However, as the drainage scheme was then approved and was the same as that submitted in 2019, prior to any building works starting, I do not consider that any injustice was caused by any delay in discharging condition 6.
44. I appreciate that Mr & Mrs D do not consider the drainage plan to be suitable and that there were queries raised by the ecological service due to a lack of information. I have seen their evidence that their land is now boggy and waterlogged. I also note that the developer has since submitted a revised drainage plan.
45. But the Ombudsman cannot question the professional judgment of officers if there was no fault in the decision making. The Council has said that the ecological service had confirmed in January 2019 that the proposed development was unlikely to result in any significant ecological impacts. So, whilst the Council could have discharged the condition sooner, I have seen no evidence of fault in the way it decided the drainage scheme was appropriate.
46. I find no fault in the way the conditions were discharged.

Enforcement

47. When a council receives a complaint about unauthorised development, it has a duty to investigate. If a breach of planning control is found, the Council’s next duty is to take a view on whether it needs to do something about it or not. In effect, the authority applies two tests: the ‘amenity’ test and the ‘expediency’ test. First, who or what is harmed by the development and second, if the breach does cause harm, is it expedient to act.
48. I have seen that the Council considered the report of a possible breach of planning control in May 2021. The enforcement officer visited the site within 15 days of the case being allocated in July 2021, but this was two months after Mr & Mrs D had reported a possible breach. This is fault as it is not in line with Council’s local enforcement plan which says visits should take place within 15 days of the report being made.
49. The officer took photographs and measurements, considered a topography report showing the site levels and compared the works in progress against the approved plans.
50. The Council found that there had been a breach, as the house had started to be built lower than approved. But the developer was taking action to rectify this, so the Council decided it was not expedient to take enforcement action. The Council issued its decision in October 2021, three months after the case was opened, but decided to continue monitoring the situation.
51. There was delay starting the enforcement case, which is fault, but I cannot say this caused the planning breach. It may already have occurred as the foundations had been laid by June 2021. In any case, the delay did not cause any injustice to Mr & Mrs D as the developer was rectifying the ground levels.
52. I consider it was appropriate for the Council to keep the case open as site levels compliance could not be confirmed until the development was substantially complete.
53. The Council found during its March 2022 enforcement visit that the rear patio about was about two metres wider than approved. Consequently, the land behind the house is two metres higher than approved. But I have seen no evidence that the house itself is higher than the approved floor level.
54. The Council considered whether this breach warranted enforcement action. It decided it was not expedient to enforce. It set out its reasons for this in its letter of 23 June 2022 (listed in paragraph 32).
55. I am satisfied the Council properly considered if enforcement action was necessary. It considered the evidence and was aware of the planning approvals given. It decided the breaches did not cause material harm and it explained its reasons for not taking enforcement action. It was entitled to use its discretion to reach this decision and the Ombudsman cannot question the merits of a decision made when there is no evidence of fault.
56. There is some dispute about what was found in relation to drainage in March 2022. I have seen the Council’s photographs from the March 2022 visit which show that holes had been dug for the crate soakaway and rainwater tank. These were measured and the crate soakaway hole was found to be located nearer to the new house than approved. The Council decided it was not expedient to enforce this. The Council’s 23 June 2022 letter to Mr & Mrs D is slightly confusing as it implies that the crate soakaway had been installed. In fact the enforcement report says “the crate soakaway and rainwater harvesting tank had yet to be implemented” and it was only their intended locations that had been viewed.
57. If the crate soakaway has now been placed in the wrong location, this may be a breach of planning control. But I cannot say that the Council should take enforcement action. It is for the developer or homeowner to ensure the drainage is built to building regulations standards. The Council is correct that any damage being caused is a civil matter between Mr & Mrs D and their neighbour.
58. The Council failed to respond to the concerns Mr & Mrs D raised in 2020 about the site levels. This is fault. There is no fault in the Council’s customer care policy not containing deadlines, but our principles of good administrative practice say councils should respond promptly to residents.
59. However, I do not consider the injustice that caused warrants more than the apology already given by the Council. This is because the Council decided it was not expedient to enforce against the wider rear patio area as it did not cause planning harm to Mr & Mrs D. So I cannot say that planning harm has been caused by delay in responding to their concerns.

Back to top

Final decision

60. There was fault by the Council when it failed to respond to Mr & Mrs D in 2020 and delayed starting enforcement in 2021. I am satisfied the apology the Council has already given remedies the injustice caused. I have found no fault in the way the Council discharged the planning conditions or carried out enforcement. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman