The Ombudsman's final decision
Summary: Mr X complains about the Council’s granting of planning permission for his neighbour’s extension and its failure to take enforcement action due to increases in the height of the extension and patio. We do not find fault in how the Council considered the retrospective planning application for the increased extension height. However, the Council has accepted it failed to consider the increased patio height and the impact this would have on neighbouring amenity when granting planning permission. This fault has caused of loss of amenity for Mr and Mrs X. To remedy this, the Council has agreed to apologise to Mr and Mrs X and make them a payment.
The complaint
The complainant, who I shall refer to here as Mr X, complains about the Council’s handling of a planning application for an extension next to his home. Mr X says he did not object to the original application at the site, but is unhappy with how the Council has dealt with the development since. More specifically, he complains: the extension is one metre higher than it should be; a fence exceeding two metres has been built, which is overbearing; and, his neighbour’s existing patio was demolished and raised. Mr X says this was not included as part of the original planning application and therefore does not have planning permission.
Mr X complains that the raised patio affects his privacy and the value of his home. He says anyone standing on the patio can now look into his garden and through his kitchen window, which was not possible before. Mr X says this is intimidating and has removed his and Mrs X, his wife’s right to enjoy the privacy of their garden.
Mr X complains the height of the fence is overbearing and has reduced the view from his property. He says this will impact the value of his home.
Mr X says he has gone to significant time and trouble complaining and reporting enforcement issues to the Council. He says the situations has significantly affected his mental and physical health as well as Mrs X’s mental health.
The Ombudsman’s role and powers
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) 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) 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)
How I considered this complaint
I spoke with Mr X about his complaint. I considered the information provided by Mr X and the Council.
Mr X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
What I found
Planning permission Planning permission is required for the development of land (including its material change of use).
Planning permission may be granted subject to conditions relating to the development and use of land.
Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
Decision making and material considerations All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
General planning policies may pull in different directions (for example, in promoting residential development and protecting residential amenities).
It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.
Enforcement Councils can take enforcement action if they find planning rules have been breached. 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. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
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) Planning Enforcement Options Councils have a range of options for formal planning enforcement action available to them, including: Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
However, as planning enforcement 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.
Human Rights Act The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to respect for private and family life. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
Not all rights operate in the same way. For example, the right to respect for private and family life is a qualified right. These rights are where interference may be justified in order to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.
What happened In 2020, Mr X’s neighbour made a planning application to the Council to replace their previous extension.
The Council approved the planning application.
In late 2020, Mr X spoke with a Council Case Officer in its planning department. He reported that his neighbour had raised the patio height, which had not been included in the original planning application. Rather, he said the approved application only gave permission to replace two separate extensions with a single extension, but was silent on changes to the patio.
The following month, the Case Officer emailed Mr X. The Officer said the Council could not take any enforcement action against Mr X’s neighbour for the raised patio. The Case Officer said the raised land levels and patio were shown on the approved plans meaning this benefitted from planning approval.
Mr X complained to the Council.
The Council sent Mr X its stage one complaint response. It accepted that the patio was not specifically assessed in the Case Officer’s report and was not included as a separate consideration in the decision notice giving planning permission.
In 2021, Mr X asked for his complaint to be escalated.
The Council sent Mr X a final complaint response. It maintained its previous decision. It said that planning permission had been granted to the submitted plans. It accepted that it would have been good practice to include the reference to the raised patio area in the description of the application, but the absence of this description did not amount to fault. It said the patio level was clearly labelled on the submitted plans, which had been approved.
Mr X reported to the Council that the height of the as-built extension was one metre higher than the approved plan.
The Council’s enforcement team invited Mr X’s neighbour to make a retrospective planning application for the changes to the extension height and steps.
Mr X complained to the Ombudsman. However, we decided not to investigate the complaint because the complaint was linked to the retrospective planning application, which the Council had yet to decide on.
Later in 2021, the Council approved the neighbour’s retrospective planning application to modify the previously approved plans in line with the as-built development. The application approved changes to the increased height of the extension and changes to the steps.
Mr X complained to the Council about its decision to approve the retrospective planning application. He said the Council had failed to consider the impact of the increased height of the extension, fence and patio. He said the Council had failed to consider the loss of residential amenity, privacy and sunlight that he and Mrs X had suffered. He said the Council had failed to consider its duties under the Human Rights Act 1998.
Towards the end of 2021, the Council sent Mr X its stage one complaint response. It said: it had previously responded to Mr X’s complaints about the increased patio height, which was not part of the retrospective planning application; with regards to the extension height, it said the Council had assessed the potential impact on residential amenity in both the original and retrospective planning applications; and, it had asked its enforcement team to look into Mr X’s report that the fence was more than two metres high.
Mr X asked for his complaint to be escalated. He complained the Council had failed to carry out a site visit or monitor the development.
Two weeks later, the Council sent Mr X its final complaint response. It said it did not uphold Mr X’s complaint that the Council had failed to monitor the development. It explained that the Council did not have the resources to monitor all planning applications for compliance. Rather, when it becomes aware of a potential breach, its planning enforcement team would investigate and decide what action to take. In Mr X’s case, it confirmed that a retrospective planning application was approved after the Council became aware of a potential breach. It said its enforcement team was looking into the height of the fence and would contact Mr X soon.
In early 2022, Mr X complained again to the Ombudsman.
Analysis – was there fault by the Council causing injustice?
Height of the extension Mr X complains about the Council’s decision to approve retrospective planning permission for the increased height of the extension (part a of the complaint). He says the Council failed to consider the impact this would have on his view and privacy.
It is my understanding the Council’s enforcement team invited Mr X’s neighbour to make a retrospective planning application for the changes to the extension height and steps. This was followings reports from Mr X that these breached the original approved application. As explained above, this was a decision the Council was entitled to make. I do not find the Council at fault. Planning enforcement action is discretionary and councils may decide to take informal action, which includes asking the applicant to submit a planning application so they can formally consider the issues.
Before approving the retrospective planning application, the Council visited the site. The Case Officer’s report said: the changes to the scheme were considered minor and would be appropriate to the site and surroundings; the changes would not adversely impact the amenity of neighbouring residents; and, the as-built scheme was acceptable in terms of its impact on neighbours.
I find the Case Officer appropriately considered the potential impact of the changes on residential amenity and neighbours, including Mr X.
Mr X complains the Council failed to consider his and Mrs X’s right to respect for their private and family life under Article 8 of the Human Rights Act 1998.
Article 8 and Article 1 of the First Protocol (the right to peaceful enjoyment of their property) are qualified rights. This means a public authority may interfere with them if they consider it is in the interest of the wider community or other people’s rights to do so.
The Case Officer’s report shows she considered the rights of individuals who could be affected by the changes, such as Mr X, under Article 8 and Article 1 of the First Protocol. However, the Case Officer decided the interference was justified as it was not considered disproportionate. In the Council’s stage one complaint response from the end of 2021, it said the Case Officer’s report said “it was not considered that the changes to the approved scheme would have a significantly greater impact upon your property than that already approved and the application was … granted”. This was a decision the Council was entitled to make. I do not find the Could failed to have due regard to Mr X’s rights under the Human Rights Act here.
Increased fence height Mr X complains about the Council’s actions after he reported his neighbour built a fence exceeding two metres, which he considered overbearing.
Parliament has given a blanket planning permission (‘permitted development’) for many minor works. This can include building a new fence if it does not exceed two metres in height from ground level.
Based on the evidence I have seen, the Council’s enforcement team began investigating Mr X’s report that his neighbour’s fence exceeded two metres when it became aware of this at the end of 2021.
A few months later, the Council’s enforcement team wrote to Mr X confirming it had completed its investigation. It said it had carried out a site visit where it found the fence height had been reduced to two metres. It explained this meant the fence was a permitted development and no further action would be taken.
I am satisfied the Council took Mr X’s report seriously and took sufficient steps, including a site visit, to satisfy itself the reduced fence height met the requirements of a permitted development. I do not find the Council at fault (part b of the complaint).
Raised patio height Mr X complains his neighbour’s existing patio was demolished and raised. He says this was not included as part of the original planning application and therefore does not have planning permission. He complains about the Council’s handling of this.
In the Council’s stage one complaint response it accepted the Case Officer’s report had failed to specifically assess the proposed changes to the patio and the Council had failed to include this as a separate consideration in the decision notice giving planning permission. It accepted that the Council had failed to consider the impact of the changes to the patio on neighbouring amenity. This is fault. In my view, the Council’s failure to consider any potential loss of privacy or increased overlooking meant the Council failed to have due regard to Mr and Mrs X’s rights under Article 8 of the Human Rights Act (a material planning consideration).
The Council assessed the impact on neighbouring amenity in the same stage one complaint response. It decided the raised patio would have been acceptable in planning terms, but a condition could have been added to limit any potential impact. I find the Council has accepted that it would not have approved the original planning application in its current form without this condition.
The fault identified here has caused Mr and Mrs X significant distress and stress. They have experienced a loss of amenity, which the Council has accepted. Mr X has gone to time and trouble complaining.
When such permanent loss of amenity has occurred, the Ombudsman would usually recommend the Council consider possible ways to reduce the impact. For example, this could be planting hedges or trees in Mr and Mrs X’s garden to screen the development.
The Council told Mr X that it could contact the applicant and ask if they would consider putting in place a suitable screen. However, it correctly explained that the Council has no powers to require the applicant takes this action. It is my understanding that this action was not carried out by the applicant.
I asked Mr X whether he would accept such remedial action being taken in his garden instead. However, Mr X said he would not wish for hedges or trees to be planted in his garden as this would significantly encroach into the available space.
In these circumstances, where it is not possible to take remedial action to lessen the effects of the flawed decision, I have recommended a financial payment to acknowledge the loss of amenity to Mr and Mrs X. As the screening condition would have been a small change to the original planning permission, I have recommended a remedy for loss of amenity towards the lower end of the scale (between £1,000 and £5,000).
Agreed action
Within four weeks of my final decision, the Council has agreed to: apologise in writing to Mr and Mrs X for the fault causing injustice; make Mr and Mrs X a payment of £1,500 due to the loss of amenity accepted by the Council; and, make Mr X a payment of £150 for the time and trouble he was put to complaining.
I have considered the Ombudsman’s published guidance on remedies when recommending these payments.
The Ombudsman will need to see evidence that these actions have been completed.
Final decision
I have completed my investigation.
I have decided not to uphold parts a and b of Mr X’s complaint. This is because I have not seen evidence of fault by the Council causing injustice.
I have decided to uphold part c of Mr X’s complaint. The Council has accepted it was at fault, which caused Mr and Mrs X injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.
Investigator's decision on behalf of the Ombudsman