Summary: Mr X said the Council failed to properly consider differing ground levels in granting planning permission for development near his home. We found no fault in how the Council both reached its decision to grant planning permission and investigated Mr X’s reports of breaches of planning control on the development site.

The complaint

1. Mr X said the Council failed to properly consider differing ground levels in dealing with development on a site near his home. Mr X said the differing ground levels meant the development had an unacceptable impact on his home, including significantly reducing his privacy. Mr X was also dissatisfied with the Council’s handling of his complaint.
2. Mr X would prefer the development to be demolished. Alternatively, Mr X wanted the Council to secure, on the development’s boundary, land drainage, a retaining wall with fencing, and landscaping to protect his home from damage and to reinstate some privacy.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I have:

• considered Mr X’s written complaint and supporting papers and photographs;
• talked to Mr X about the complaint;
• considered Internet images of the area, including the access to the development site;
• asked for and considered the Council’s comments and supporting papers, including photographs, about the complaint;
• shared Council information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

Planning permission

6. Most development needs planning permission from the council. Councils must consider each planning application on its own merits. They must also decide applications in line with relevant policies in their development plans unless material planning considerations indicate they should not. Material considerations concern the use and development of land in the public interest but not private matters. Examples of material considerations are traffic generation and overlooking. The developer’s behaviour, the view from peoples’ homes and potential changes to house prices are not material planning considerations.
7. A planning case officer may, but does not have to, visit the development site when considering a planning application. The case officer may also write a report assessing the proposed development against relevant policies and other material planning considerations. The report usually ends with a recommendation to approve or refuse the application. The courts have made clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

8. Planning policies may pull in different directions, for example, promoting new housing and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application. A senior council officer will decide most of their council’s planning applications.
9. Councils may impose planning conditions to make development acceptable in planning terms. The Government’s National Planning Policy Framework (NPPF) says councils should keep conditions to a minimum. And councils should only impose conditions where they are necessary, relevant to both planning and the development, precise, enforceable, and otherwise reasonable (‘the six tests’). The Government’s Planning Practice Guidance (PPG) reflects the NPPF and refers to the “rigorous application of the six tests”. The PPG also says it is “good practice” to keep conditions to a minimum wherever possible.

Planning enforcement

10. If development takes place without the necessary planning permission or that fails to comply with a planning permission, there will be a breach of planning control. Councils should investigate reported breaches. But planning enforcement is discretionary. The NPPF says councils should act proportionately in responding to suspected breaches. When deciding whether to take enforcement action, councils should consider the likely impact of harm to the public and whether they might grant planning permission if they received an application for the unauthorised development. As enforcement is discretionary, if councils find a breach, they may decide to take informal action or not act at all.

The Council’s complaints procedure

11. The Council has a two stage complaints procedure. At stage one, if the Council cannot quickly resolve the complaint, it will send a formal written response within 20 working days. If complainants remain unhappy with their stage one response, they may take their complaint to stage two. The Council will consider a complainant’s reasons for continuing with their complaint and decide whether to accept the complaint at stage two. If the Council accepts a stage two complaint, it will respond within 20 working days or, in complex cases, either 40 working days or a timescale agreed with the complainant.

What happened

12. The Council received a planning application to develop land (‘the Site’) near Mr X’s home. A Council planning case officer visited the Site and then prepared a report (‘the Report’) assessing the proposed development (‘the Development’). The Report identified the impact of the Development on existing residential amenities and flood risk as key issues in deciding the application. The Report recommended the grant of planning permission.
13. In considering existing residential amenities, the Report referred to the Council’s Local Plan policy DM2 (‘the Policy’) and its supporting comments. The Policy supported development that did not have a “significant adverse impact” on existing residents’ amenities, including their privacy. The Policy’s supporting comments said there should normally be 21 metres separating facing windows of development and existing homes. The Report said the separation distance between the Development and homes on the road where Mr X lived was greater than 21 metres. The separation distance was also sufficient to reasonably safeguard existing residents’ privacy. And overlooking windows would not have a significantly detrimental impact on existing residential amenities. Overall, the Council found the Development complied with the Policy.
14. In considering the impact on flood risk, the Report found the Development would increase hard surfacing on the Site. And, this would likely increase surface water run-off. So, the Development needed a sustainable drainage scheme to reduce surface water run-off.
15. The Council granted the Development conditional planning permission. One planning condition said the developer had to get the Council’s approval to a detailed drainage scheme for the Site. Another condition said the developer had to get the Council’s approval to a landscaping scheme for the Site. A third condition said the developer needed to get the Council’s approval of details for the treatment of Site boundaries. Later, the Council approved separate schemes for the drainage and landscaping of the Site and approved the Site boundary treatments.
16. Building work started on the Site. Mr X became concerned about the impact of the Development on his privacy. Mr X contacted the Council about ground levels, drainage, and landscaping on the Site. And, over the following 10 months, the Council carried out two planning enforcement investigations into Mr X’s concerns. The investigations included consideration of the Development planning permission, visits to the Site, liaison with drainage and other Council officers, and contact with both the developer and Mr X.
17. In summary, the Council’s enforcement investigations found ground levels on the Site were significantly higher than some neighbouring land. But Site ground levels appeared unchanged by the Development. There was a “large soil bund” on the Site. The developer said the soil would be spread over the Site for landscaping purposes. The height of new buildings on the Site was in line with that shown on the approved Development plans. The approved drainage scheme installed on the Site did not include drainage measures on the Site boundary near Mr X’s home. The Council suggested added drainage measures for the Site boundary, which the developer appeared willing to put in place. The Council told Mr X it could not force the developer to carry out added drainage works that were not part of the approved scheme. The Council closed both enforcement cases finding no breach of planning control on the Site.
18. Mr X complained to the Council saying it had not properly considered the impact of the Development on his living conditions, including his privacy, before granting planning permission. The Council, apologising for its delay, replied 12 weeks later. The Council said development usually led to some adverse impacts, including from overlooking. It pointed to the Policy seeking to prevent significant adverse impacts and its supporting comments about a 21-metre separation distance. The Council said it had considered the impact of the Development on existing residents’ homes. The Report found a separation distance greater than 21 metres, which was sufficient to safeguard privacy and avoid a significantly adverse impact. The planning permission did not deal with ground levels as the Development did not propose any material changes to levels. The Council recognised Mr X did not agree with its planning assessment of the Development.
19. Mr X made a stage two complaint and asked the Council to visit to see the impact of the Development on his home. The Council visited Mr X’s home and sent its stage two response about two weeks later. The Council again said the Development would not have a significantly detrimental impact on existing homes. It found no legal or procedural errors in its decision to grant planning permission. And its enforcement officer had investigated the Development and found no planning breaches, including any change to ground levels. However, the Council accepted there was a ‘feeling of being overlooked’ at Mr X’s home. So, it would ask the developer if it might add more landscaping near Mr X’s home. The Council said it could not force the developer to add planting beyond that shown in the approved landscaping scheme. The Council also gave reasons for its delay in dealing with Mr X’s complaint and made a further apology.
20. Mr X brought his complaint to the Ombudsman saying ground levels had changed on the Site. And the developer had removed mature vegetation from the Site and installed inadequate boundary fencing. This meant he had no privacy in his home. Mr X also said the lack of boundary drainage meant his garden would flood.

The Council’s comments to the Ombudsman

21. The Council said its planning case officer visited the Site and saw the differing ground levels on the Site and neighbouring land. The case officer estimated the difference along the Site boundary with adjoining land was between 0.5 and 1 metre. And, near Mr X’s home, it was about 0.5 metres. Photographs of new fencing along that boundary now showed that difference, which it did not consider significant. The Council also said its enforcement visits showed no evidence of changes to Site ground levels.
22. The Council said it treated 21 metres as a ‘start point’ it normally expected developers to meet. But, its planning case officers used their judgement, given the circumstances of each case, to decide if a development would have a ‘significant adverse impact’ under the Policy. Here, it considered the circumstances were ‘normal’ as it was dealing with an approximate 0.5 metre difference in ground levels and a separation distance greater than 21 metres.
23. The Council said the variation in levels was gradual within the Site. And the Development did not propose changes to ground levels. So, in line with the NPPF and PPG, it was neither necessary nor reasonable to impose a planning condition to control ground levels (see paragraph 9 of this statement).
24. The Council said, in responding to Mr X’s complaint, it had wanted to recognise he found the impact of the Development unacceptable. However, in urban areas, overlooking development was almost inevitable. And, in line with the Policy, overlooking was to be avoided where assessed as having a ‘significantly adverse’ impact. Here, its assessment, which was thorough and sound, found the Development did not have a significantly adverse impact.
25. The Council said it consulted the local water company and the Report dealt with drainage issues (see paragraph 14). The drainage condition aimed to prevent an unacceptable increase in surface water run-off and to reduce any flood risk. And the approved scheme provided for disposal of surface water run-off from new hard surfaces through existing pipe work. It did not consider the Development had increased the risk of surface water run-off on open areas, which included land next to Mr X’s boundary. The approved scheme provided for run-off from open areas to continue to drain away through the ground. The developer had not carried out its suggested added drainage measures near Mr X’s boundary. However, the developer said it liaised with Mr X and had provided alternative works near his boundary. However, the Development was acceptable without any added drainage measures. And the Development had not increased the flood risk to Mr X’s home.
26. The Council said approved boundary treatments were in place that provided reasonable and suitable privacy between the Development and existing homes. And the developer would soon carry out the approved landscaping scheme. Landscaping was not intended to reduce overlooking. However, the developer had voluntarily agreed to carry out extra landscaping near Mr X’s home that might further protect his privacy. The Council confirmed the Development was acceptable without any added landscaping.
27. The Council considered its communications with Mr X had been adequate. While finding no breaches of planning control, as a goodwill gesture, it had contacted the developer to see if it would carry out added works to address Mr X’s concerns. It recognised it had not replied to Mr X’s stage 1 and 2 complaints within its target times (see paragraph 11). After visiting Mr X’s home, it sent its stage 2 response within the timescale then given to Mr X. There had been staff vacancies which contributed to its delays in responding to complaints. It had now recruited staff and intended to review its corporate complaints policy. The Council said it was willing to write to Mr X to further apologise for delay in its complaints handling.

Consideration

Introduction

28. We are not an appeal body. Our role is to consider whether there is evidence a council has acted with fault in reaching a decision (see paragraph 3). And, where there is evidence of fault, to consider if it has caused the complainant injustice. I carefully considered all Mr X’s information, and that provided by the Council, but this statement does not, and does not need to, address every point and concern raised between the parties. Rather, this statement focuses on whether the Council acted with fault in granting the Development planning permission and later finding no breach of planning control on the Site. Without evidence of fault, I could not question the Council’s decisions however strongly Mr X might disagree with them.

Ground levels and privacy

29. The evidence showed the Council’s planning case officer visited the Site. So the Council was aware of the varying ground levels when assessing the Development. The planning application showed the Development would use an existing access. Photographic and other images showed the access left a public road whose ground level was higher than the road where Mr X lived. This would also have been clear from the planning case officer’s visit to the Site. The application plans showed the existing access extending into the Site and the new buildings adjoining the extended access. The new buildings would therefore be on ground higher than the road where Mr X lived.
30. The Report provided evidence the Council took account of the impact of the Development on existing residential amenities. The Report showed the Council assessed the Development against the Policy (see paragraph 13). In identifying the Policy as a key relevant planning policy and then assessing the impact of the Development against the Policy, the Council acted without fault. It was for the Council to then decide whether the Development had a ‘significant adverse impact’ on nearby homes. As I found no fault by the Council, I could not question its resulting decision that no significant adverse impact arose (see paragraph 3).
31. The planning application for the Development did not show Site ground levels were to change. And the Council did not impose a condition on the Development planning permission about ground levels. Given the NPPF and PPG, I did not find the Council at fault in not imposing such a condition (see paragraphs 3, 9 and 23).
32. Mr X became concerned once building work started on the Site and this led the Council to carry out two planning enforcement investigations. The evidence showed the Council took steps reasonably to be expected in investigating reported breaches of planning control (see paragraph 16). I therefore saw no evidence of fault in how the Council investigated Mr X’s reports of planning breaches on the Site. The Council’s enforcement investigations found the height of new buildings on the Site was in line with the approved Development plans. And that ground levels for the new buildings reflected those existing on land next to the original access.
33. However, Mr X was also concerned about the open land on the Site. Mr X referred to and provided a photograph of a ‘soil mound’ on the Site. The Council’s enforcement investigations also found a large soil bund on the Site (see paragraph 17). Later photographs and images showed the open land landscaped and no soil mound/bund. Photographs also showed new boundary treatments in place around and within the Site.
34. The photographs of fences on the Site showed ground levels varied on substantial completion of the Development. The photographs also supported the Council’s view that ground levels near Mr X’s home varied by about 0.5 metres (see paragraph 21). The seeming movement of the soil mound/bund for landscaping may have affected ground levels. But the photographic evidence did not suggest any such movement significantly changed ground levels. The Council provided a photograph viewed from the ground floor of a new building on the Site and showing some new fencing. The photograph helped show how the boundary fencing provided privacy at ground floor level between the new building and homes along the road where Mr X lived.
35. Mr X’s photographs showed overlooking between the new buildings and homes along the road where he lived. However, the evidence showed the Council considered the differing ground levels and the Development’s impact on existing homes before granting planning permission. The Council accepted there was overlooking. But, having considered the planning issue in the Report, the Council was entitled to find the overlooking was not ‘significantly adverse’. The Council also investigated Mr X’s concerns about ground levels once work started on Site. I therefore found no evidence of fault in how the Council considered the planning application for the Development or investigated Mr X’s reports of planning breaches. And, without evidence of fault in how the Council acted, I could not question its resulting decisions to grant planning permission for the Development and to find no breach of planning control on the Site.

Drainage

36. The Report provided evidence the Council identified the impact of the Development on flood risk as a key issue in deciding the planning application. The Report also provided evidence the Council considered the issue. And, to address the likely increase in surface water run-off caused by new buildings, the Council placed a drainage condition on the Development planning permission. This was a suitable and proportionate approach to take in assessing the Development and so I found no evidence of fault here by the Council.
37. Having acted without fault in identifying and then dealing with the issue, the Council was entitled to decide whether the developer’s drainage scheme was acceptable under the planning condition. And, the Council approved a scheme that did not include drainage measures on the Site boundary near Mr X’s home. The Council explained that no such measures were needed to make the Development acceptable as that part of the Site near Mr X’s home remained unbuilt and open. It therefore expected surface water would continue to percolate through the ground as it had before construction of the Development.
38. The Council, while not finding added measures necessary, sought to allay Mr X’s concerns by seeking the developer’s agreement to boundary drainage works. The Council understands the developer discussed the matter with Mr X and then put additional works in place near Mr X’s boundary.
39. However, a grant of planning permission does not allow developers to cause damage to their neighbour’s land. If the developer’s acts or omissions cause damage to Mr X’s home, remedies are available in the civil courts and tribunals.

Complaint handling and support

40. I thanked the Council for recognising it failed to meet its complaint handling time targets. I found it avoidably delayed dealing with Mr X’s complaint at stage 1. However, at stage 2, it responded without avoidable delay in seeking a date to visit Mr X’s home. It took time for the visit to take place but, once it did, the Council sent its formal written response within two weeks of the visit. The Council had already apologised to Mr X for its complaint handling delay. I found the Council’s apologies suitably and proportionately addressed any frustration and distress its delays would likely have caused Mr X. The Council had also taken, and intended to take further steps, to improve its complaint handling (see paragraph 27).
41. I also found no fault in the Council’s correspondence with Mr X. The Council’s planning enforcement records showed it kept Mr X suitably and reasonably updated about its investigations and resulting decisions. I also found the Council’s complaint responses satisfactorily addressed Mr X’s key concerns.

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Final decision

42. I completed my investigation finding no fault in how the Council reached its development management and planning enforcement decisions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman