Summary: We found no fault by the Council on Mr J’s complaint about it failing to investigate, and take effective action, against a developer who did not build a nearby housing estate according to approved plans. The Council investigated his concerns and found no breach.

The complaint

1. Mr J complains about the Council failing to investigate and take effective action against the developer who built new housing to the rear of his home which he believes does not meet the separation distance shown on approved plans: as a result, his privacy in his home and garden is affected.

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What I have and have not investigated

2. I have not investigated the Council’s actions that took place before February 2022. This is because Mr J complained to us in February 2023. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) This means I did not investigate the planning consents granted.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. I considered all the information Mr J sent, the notes I made of our telephone conversation, along with the one I had with a planning officer, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr J and the Council. I considered Mr J’s response.

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What I found

7. Mr J has lived in his house for several years. When he bought it, the land to the rear of it was undeveloped. This was later developed with new housing. He is unhappy because he claims the new housing immediately behind his house is not built according to approved plans.
8. I now look at Mr J’s complaints separately:

Separation distance

9. Mr J complains the houses built to the rear of his house are not at the correct distance from it. He argues the separation distance for the nearest house is not 17 metres as required by the approved plans, for example.
10. The Council confirmed the approved plans show the following distances from Mr J’s property:

• plot A (approved: 17 metres): This was measured and found to be 17 metres from his property;
• plot B (approved: 21 metres): From an instep of 0.5 metres of the east rear corner, this was measured as 20.8 metres from his property; and
• plot C (approved: 21 metres): While I note the Council failed to give a measured separation distance for this property, the plans and photographs show it is not directly behind Mr J’s house. The photographs show it is attached to, and in line with, the property on plot B. This means the distance from its rear wall to its rear boundary fence will be similar, if not slightly further away, to plot B.

My findings

11. I found no fault on this complaint for the following reasons:
1. The Council visited the site, took photographs, and measured the separation distances. It explained measurements were taken using a laser measure to the boundary and Mr J’s house.
2. The separation distance for the property on plot A is the same as that shown on the approved plans.
3. The separation distance for the property on plot B is 0.2 metres closer to Mr J’s property than the distance shown on the approved plans.
4. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
5. The Council, therefore, does not have to take enforcement action against the developer for the difference. This is because enforcement is discretionary. While a council can take enforcement action if they find planning rules have been breached, they should not take enforcement action just because there is a breach of planning control.
6. Formal action should happen only when it is a proportionate response to a breach. When deciding whether to enforce, a council should consider the likely impact of harm to the public and whether it might grant approval if it received an application for the development as built. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
7. In the circumstances, while the Council has not explicitly referred to reaching a decision about enforcement, on balance, I consider it unlikely it would take such action based on a 0.2 metres (20 cm) difference between what the distance is and what it should have been. This is because it would need to decide whether it would be proportionate to take enforcement action for such a small difference. It would also need to consider the likelihood of the developer successfully defending such action.
8. Although the Council did not provide the separation distance for the property on plot C, it is likely to be similar, if not slightly further away, to Mr J’s property. This property does not directly face his property.

Location

12. Mr J says the housing to the rear of his house were not built in the correct position. He believes all the houses on site were built slightly further to the west than approved.
13. The Council maintains the properties are built according to the plans and are in the correct position.
14. The Council explained Mr J’s confusion may be because of the approved plan for his estate, which was built before the housing to the rear. This plan shows his property is about two metres further to the east than shown on the approved plan for the recent housing behind his house.

My findings

15. I found no fault on this complaint because:
1. The Council had to satisfy itself that the new houses were built in the locations shown on the approved plans. This is because planning consent given to the plans concerns only the properties within, not outside, the site boundary. The plans show the site boundary in red.
2. Mr J’s property is not within the red line plans as it is outside the site. This is because his property was built under different planning consent granted years earlier for a different site.
3. The Council’s assessment is Mr J’s house is shown slightly further east on the approved plan for the development of the site his house was part of, than the approved plan for the development of the site adjoining it to the rear.
4. I am satisfied the Council visited the site and assessed the built homes’ location against what was shown within the site’s approved plans.

Levels

16. Mr J claims the floor levels of the houses built to the rear of his house are incorrect as they should be 0.9 metres lower than built.
17. The Council visited and confirmed height levels complied with what was shown on the approved plans. The approved plans, for example, show the finished floor level of plot A as 0.38 m higher than the rear of its neighbour’s garden. The plans also show plot B finished floor levels as 0.48 m higher than the rear of the neighbour’s garden.
18. The Council confirmed officers visited the site and assessed a slight difference in the levels between Mr J’s property and those built to the rear. Although officers did not take formal measurements of the levels, they appeared to match those shown on the approved plans.
19. The Council considers the photographs taken during visits, which I have seen, visually confirm this assessment. The Council also confirmed if there were slight discrepancies between the built levels and those shown on the approved plan, these would be considered acceptable. This is because it means they would be approved by way of a planning application and it would not be expedient to take enforcement action.
20. Officers did not measure the levels at the time they measured the separation distances as Mr J had not raised it at that point.

My findings

21. I found no fault on this complaint. I am satisfied officers visited and assessed the built levels of the rear properties complied with those shown on the approved plans.

Drainage

22. Mr J complains the site has no proper drainage for surface water. He believes this is a problem across the site. As a result, water run-off goes on to the rear gardens immediately below the site.
23. The Council said given the modest garden area to the rear, consisting of lawn, it would expect water to infiltrate rather than run-off and cause a risk of flooding.
24. The Council has seen no evidence the approved drainage system has not been complied with although construction was ongoing during its last visit.

My findings

25. I found no fault on this complaint. The Council confirmed there was a proper drainage scheme which it approved at the time it granted consent, a copy of which I have seen.

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Final decision

26. I found no fault on Mr J’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman