Summary: Mr F complained the Council failed to properly consider a planning application for development next to his home. We found no fault in the way the Council determined the planning application or carried out its enforcement investigation. There was fault in complaint handling which caused Mr F some time and trouble. The Council has agreed to apologise for this.

The complaint

1. Mr F complained the Council failed to properly consider a planning application for development next to his home. In particular, it failed to notice the plans did not show the correct ground levels and failed to follow its planning policies.
2. Mr F says as a result, the extension is at least one metre higher than shown in the plans and he has suffered a substantial loss of amenity due to loss of light, loss of privacy, overlooking and enclosure.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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

6. I considered the information Mr F sent, the Council’s response to my enquiries and the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the 2015 Order”).
7. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Planning permission

8. 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.
9. Material considerations concern the use and development of land in the public interest but not private matters. Examples of material considerations are overlooking and overshadowing. The view from peoples’ homes and potential changes to house prices are not material planning considerations.
10. 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.
11. 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.
12. The courts have made it clear that, the fact there was a misrepresentation by a planning applicant or an error on an application plan, is not necessarily a material planning consideration. Where a discrepancy in a plan has not been noticed, the Ombudsman will only criticise a council if the discrepancy would have:
• been obvious to any reasonable planning officer; and
• it would have been material to its consideration (i.e. it made a difference to the outcome).
13. Article 2 of the 2015 Order defines height of a building as “… height when measured from ground level; … “ground level” means the level of the surface of the ground immediately adjacent to the building in question or, where the level of the surface of the ground on which it is situated or is to be situated is not uniform, the level of the highest part of the surface of the ground adjacent to it.”

Planning enforcement

14. 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.
15. Planning enforcement action is discretionary, so even if councils find a breach, they may decide to take informal action or not act at all. 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.

What happened

16. Mr F lives in a terraced house. In 2023, his neighbour applied for planning permission to build a single storey side and rear extension.
17. Mr F objected to the application. He said it would cause overshadowing and overlooking and have an adverse impact on his privacy and light. Mr F also said that the plans did not show that the land sloped down away from the houses. The ground level in the garden was about half a meter below the floor level of the house.
18. The application was considered by a planning case officer, who visited the site and wrote a report. The case officer’s report included:
• a description of the proposal, the site and its previous uses;
• a summary of relevant planning history;
• a summary of comments from neighbours and other consultees;
• relevant planning policy and guidance; and
• an appraisal of the main planning considerations, including the concerns of objectors, and the impact on neighbours’ amenities.
19. The report says the proposed height of the extension next to Mr F’s property was 2.1 metres to the eaves.
20. In relation to Mr F’s property, the report says there are no windows facing the application site, so “the proposed corner element is not considered to impact” Mr F’s amenity. The extension would extend to the shared boundary and the proposed eaves height would exceed the permitted height of a boundary fence by 0.10 metres. This mitigated any adverse impacts towards Mr F’s property. Proposed glazed side doors would not change the degree of privacy already experienced and would be acceptable. There was no reference to ground levels.
21. The application was approved subject to planning conditions, using delegated powers.
22. Mr F and his solicitor raised concerns with the Council about the decision. The Council’s responses say the proposal had been considered under a full planning application. Whilst the change in ground levels was not acknowledged in the officer report, the case officer had visited the site and the plans clearly showed the rear extension to be marginally higher than the existing natural ground level. It was not considered that this would have any significant adverse impact on the amenities of either neighbouring property.
23. Mr F emailed the Council on 9 February 2024 raising his concerns. The Council responded to his comments on 26 February but it did not register Mr F’s email as a complaint and did not signpost him to the second stage of the complaint procedure.
24. In July 2024, Mr F reported a possible breach of planning control because the extension appeared to be higher than shown in the planning application.
25. The Council opened a planning enforcement case. It examined the heights of the extension and found the height from ground level of the extension being built next to Mr F’s property was 1.9 metres to the eaves. As the approved height was 2.1 metres there was therefore no breach of planning control. The Council emailed Mr F on 3 September with this outcome.
26. Mr F made a formal complaint to the Council on 5 August. The Council’s stage one response of 21 August did not uphold the complaint. Mr F asked for his complaint to be escalated to stage two. He said the Council had failed to take into account the ground levels.
27. The Council’s response of 9 October did not uphold Mr F’s complaint. It said the Council had been clear about what it was approving despite the ground levels not being referenced in the case officer’s report.
28. The response also said that the “the extension as built differs from that which was originally granted planning permission” but it was not considered that the development was “so impactful so as to justify refusing consent”. The Council arranged an enforcement visit “so that the relevant measurements can be recorded”.
29. The Council then asked the applicant to submit a planning application to deal with changes that were being made to the patio, windows and angle of the roof. The plans in the new application show the changing ground levels. The new application has since been approved.

My findings

30. It is not the Ombudsman's role to decide whether planning permission should be granted or whether there has been a breach of planning control. That is the local planning authority’s role. My role is to consider if the Council has followed the correct process in determining the planning application or carrying out an enforcement investigation. If a council has followed the process correctly, the Ombudsman cannot find it at fault just because a person disagrees with its decision.
31. The drawings in the planning application did not clearly show the changing site ground levels and ground levels were not referenced in the case officer’s report. Where there is a discrepancy in plans or case officer reports, the Ombudsman will only find fault if the discrepancy would have made a difference to the outcome. So I have carefully considered whether the planning application would have been refused if the changing ground levels had been shown in the drawings or referenced in the case officer’s report.
32. The case officer’s report set out the proposals, objections, main planning policies and the key planning issues for deciding the application. It shows the Council considered the impact of the development on Mr F’s amenities. The report then assessed these matters and concluded the development would not cause any significant harm to Mr F’s amenity. There were no planning reasons to justify refusing the application.
33. Case officers’ reports do not need to be perfect and do not have to refer to every matter. My view therefore is that there was no fault in how the Council considered the planning application. I therefore cannot question its decision to grant planning permission.
34. But even if there was fault in the case officer’s report, on the balance of probabilities, I find the Council would have granted planning permission even if the application and report had referred to the ground levels. I say this because the case officer had visited the site and the photographs from this visit show the officer was aware of the varying ground levels when assessing the proposal. In addition, the Council has approved the later application which shows the ground levels.
35. When Mr F reported a possible breach of planning control, the Council examined the heights of the extension. It found the extension was being built in accordance with the approved plans. This is because, as set out in paragraph 13, the height is measured from the ground level next to the building. I therefore find no fault in how the Council investigated Mr F’s report of a possible planning breach. I therefore cannot question its decision to find no breach of planning control.
36. Although the Council replied to Mr F’s email of 9 February it should have registered it as a formal complaint and signposted him to stage two of its complaint procedure. It failed to do so, which is fault which caused Mr F time and trouble as he had to make a further complaint to the Council.
37. I also find the stage two response of October 2024 was wrong to say that “the extension as built differs from that which was originally granted planning permission”. The enforcement investigation had not found this in relation to the height and had instead concluded that there were no material differences between the plan and the build. But I do not consider this caused significant injustice to Mr F.
38. There was no fault by the Council in asking the applicant to submit a planning application for the changes being made to the patio, windows and roof angle.

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Action

39. Within a month of my final decision, the Council has agreed to apologise to Mr F for the fault in complaint handling.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman