The Ombudsman's final decision
Summary: the Council failed to properly consider how a development would impact on Mr B’s amenity, failed to seek a further planning application when the applicant proposed to raise site levels and delayed dealing with Mr B’s complaint. An apology, payment for screening on Mr B’s boundary and an additional payment to reflect Mr B’s time and trouble is satisfactory remedy.
The complaint
The complainant, whom I shall refer to as Mr B, complained the Council: failed to consider how a development on his boundary would impact on his amenity; failed to identify the need for a new planning application when the applicant propose an increase in site levels; and delayed dealing with his complaint.
Mr B says fault by the Council has led to overlooking of his property and the loss of light.
The Ombudsman’s role and powers
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) 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) 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and Mr B's comments; made enquiries of the Council and considered the comments and documents the Council provided.
Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened The Council’s policy on advertising planning applications says the Council is required by legislation to notify neighbouring households that an application has been received. This will usually be carried out by sending a letter. In some cases it may be necessary to display a site notice.
The planning portal says a non-material amendment may be applied for to approve a minor change to the planning permission. If the amendment is not considered minor by the Local Planning Authority, a new planning application will be required. Whether or not the proposed amendment is considered to be ‘non-material’ rather than ‘material’ will depend on the specific details of the existing planning permission. Government does not provide a statutory definition of ‘non-material.’ It is down to the local planning authority to be satisfied that any amendment(s) sought are ‘non-material.’
A material consideration is a matter that should be taken into account in deciding a planning application. Material considerations include overlooking/loss of privacy and loss of light or overshadowing.
What happened The Council granted planning permission for a replacement dwelling on a site adjacent to Mr B’s property in 2018. The report for that planning application assessed the neighbouring properties but did not refer to the impact on Mr B’s property. One of the conditions imposed on the permission required the applicant to submit drawings to show the existing and proposed site levels before the development began.
The applicant submitted details in relation to site levels in 2019. The applicant’s information showed a change in level next to a footpath which sits between the development site and Mr B’s property. The footpath is at a lower level than the ground floor of the house and the main part of the garden. The applicant’s information said the house would be elevated above the level of the footpath which would require building some steps in the entrance area. The Council approved the proposals and discharged the condition relating to levels on the planning permission.
Mr B contacted the Council to complain about the height of the new property in 2021. Mr B raised concerns the Council had allowed the applicant to add steps to the house which raised it to around 8.9 metres tall when viewed from his property. The Council told Mr B he could put in a complaint. When responding to that complaint in May 2021 the Council accepted the plans approved as part of the discharge of condition in 2019 increased the height of the dwelling from 7.6 metres to a maximum of 8.8 metres which was significant. The Council accepted it should have asked for a full planning application where neighbours would be consulted. The Council told Mr B though that it would still likely have approved the application given the majority of the house is 7.8 metres above ground level.
Mr B asked the Council to move the complaint to stage two and raised some further concerns about the development as built. The Council told Mr B it would consider those concerns further as part of an enforcement investigation. The Council therefore told Mr B it would close the complaint investigation.
In August 2021 an enforcement officer visited the site to undertake measurements. At first the Council believed the development had been built 0.7 metres higher than approved. However, when the applicant challenged that the Council accepted the development was 7 or 8 cm taller than approved. The Council told Mr B that and explained as it was a small discrepancy it did not intend to take further action.
Mr B asked the Council to reinstate his stage two complaint on 5 November 2021. The Council responded to that complaint on 11 January 2022. The Council said it should not have accepted so many changes to the development through nonmaterial amendment applications and should have required the applicant to apply for full planning permission once the height of the building had changed and other changes were made. The Council expressed the view though that the outcome for Mr B would have been the same as it considered planning permission would still have been granted for the development as completed. The Council apologised to Mr B for not properly consulting on changes made to the building by allowing the applicant to submit the changes through nonmaterial amendments and apologised for any misleading reports about the height of the building. The Council said it was satisfied the building had been built in accordance with the approved plans.
Analysis Mr B is concerned about the Council’s decision to allow a development on his boundary which blocks some of the light to his property and creates overlooking. Mr B’s initial complaint concerned the discharge of a planning condition in 2019. However, Mr B said he also wanted to complain about the failure to consider the impact on him when granting the original permission.
I did not originally intend to investigate the grant of planning permission for the development in 2018. That is because the Ombudsman does not normally investigate a complaint about matters which occurred more than 12 months ago because we would expect the person affected to complain to the Ombudsman within 12 months. Having considered the documentary evidence on this case though there is no evidence the Council consulted Mr B on the original planning application. Given Mr B’s concerns about the development now I consider it likely he would have commented on the original planning application had he been aware of it. I have therefore exercised the Ombudsman’s discretion to investigate how the original planning application was processed given it is likely Mr B did not know about the grant of permission until works began on site in 2020.
I am concerned to note the report for the planning application in 2018 does not mention Mr B’s property. That is despite the fact Mr B’s property is closer to the development than the other properties referred to in the planning officer’s report. I am therefore not satisfied the planning officer considered the impact the development would have on Mr B when the original grant of planning permission was made. That is fault. That is particularly serious in this case because Mr B’s property sits at a lower level than the development site. What that means is the development, when viewed from Mr B’s property, is taller than it appears when viewed from the other neighbouring properties which were mentioned in the report. The report makes no mention of the difference in levels between the site and the footpath which separates the site from Mr B’s property. As there is no mention of Mr B’s property in the report I am not satisfied the Council considered the impact the development would have on him when it granted the original planning permission.
I am satisfied though the Council imposed a condition on the permission requiring the applicant to submit a drawing showing site levels before the development began. I consider that should have protected Mr B’s position as the officer considering the information submitted by the applicant to discharge the condition then had an opportunity to consider how the proposed levels would impact on Mr B. The Council accepts that did not happen in this case. The Council accepts the drawings submitted by the applicant in 2019 showed the development would be considerably higher on the elevation facing Mr B’s property due to the differing site levels. The Council accepts it should have asked the applicant for a full planning application at that point and consulted neighbours. I welcome the Council’s acceptance there was a failure to follow the right process in this case. I consider the Council’s failure to identify the need for a further planning application in 2019 denied Mr B a further opportunity to comment on the development. It also meant the Council did not take the second opportunity to consider how the increased height of the development, when viewed from Mr B’s property, would impact on his amenity. That again is fault.
The Council says though even if it had identified the need for a new planning application the outcome would not have been different and it would still have granted planning permission. I do not consider it likely, on the balance of probability, the Council would have refused the application. However, that does not mean the Council would likely have granted permission without any changes to deal with the impact the development would have on Mr B’s amenity. The report for the original planning application noted three other properties were particularly affected by the development. As I said earlier, all those properties are further away from the development than Mr B’s property and are not at a lower level. For all those properties windows at first floor level facing the other properties were removed to prevent any overlooking or loss of privacy. Given the proximity of Mr B’s property to the development and the fact it sits at a lower level I consider it likely, on the balance of probability, if the Council had properly considered the impact the development would have on Mr B either at planning application stage or when discharging the planning condition it would likely have considered whether a first-floor window facing Mr B’s property was suitable. I consider it is more likely than not the Council would have required the developer to remove the window at first floor level given this is what it did for the first floor level windows facing properties which are further away. I therefore consider Mr B is left with an impact on his amenity which would not have been the same had the Council properly considered the case.
To remedy that injustice I recommended the Council apologise to Mr B, pay him £250 to reflect his time and trouble in pursuing the complaint and fund screening on Mr B’s boundary so he can obscure the first floor window. If Mr B has already carried out additional landscaping at his own expense I recommended the Council refund the amount Mr B has had to pay for that screening. If Mr B has not completed landscaping on the boundary I recommended the Council work with him to identify suitable screening and pay for that screening to be planted. The recommendation is for the Council to fund the purchase and planting of the screening. The ongoing upkeep of that screening will be for Mr B to fund. I also recommended the Council send a memo to planning officers to remind them of the need to carefully check the surrounding area when considering a planning application to ensure all those affected are aware of it and able to comment and to ensure that the impact on affected properties is properly considered. The Council has agreed to my recommendations.
It is clear there have also been delays dealing with Mr B’s complaint at stages one and two. That is fault. I do not criticise the Council for putting the first request for a stage two investigation on hold though, pending the enforcement investigation relating to the height of the building. However, the Council still delayed dealing with the stage two complaint when it was reactivated in November 2021 as the Council did not respond until January 2022. That again is fault. I consider an apology a satisfactory remedy.
Agreed action
Within one month of my decision the Council should: apologise to Mr B and pay him £250; send a memo to planning officers to remind them of the need to carefully check the surrounding area when considering publicity for a planning application to ensure all those affected are aware of it and able to comment and ensure reports assess the impact a proposed development will have on all affected properties.
Within two months of my decision the Council should liaise with Mr B and pay him an amount to reflect the costs of purchasing and planting screening on his boundary.
Final decision
I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman