Summary: Mr X complained about the Council’s actions relating to planning and enforcement matters about a development next to his home. We have not found fault in how the Council considered the developer’s retrospective planning application or in its actions linked to enforcement matters. We do not intend to uphold Mr X’s complaint.

The complaint

1. Mr X complains the height of the finished access road for the neighbouring construction development is higher than it should be according to plans. He says the Council has done nothing to mitigate this.
2. Mr X says this has impacted his overall privacy and also the enjoyment of his garden, causing him distress and frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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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What I have and have not investigated

6. I have not investigated an alleged continuing planning breach in relation to tree planting. It was open for Mr X to contact the Council about this as suggested in its complaint response to him.

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How I considered this complaint

7. I have considered all the information Mr X provided and discussed this complaint with him. I have asked the Council questions and requested information, and in turn have considered the Council’s response. I have also viewed various documents available on the Council’s planning portal.
8. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Planning permission

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.

Enforcement

10. 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.
11. 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.

Retrospective planning applications

12. Section 73A of the Town and Country Planning Act 1990 (S73A) allows retrospective planning applications to be made for development which has already been carried out without permission.
13. It also allows applications to be made for planning permission to authorise development which has been carried out without complying with plans which were part of the original approved application.

What happened

14. I have set out below a summary of the key events. This is not meant to show everything that happened.
15. In 2020, a developer submitted a planning application to the Council to build on land next to Mr X’s home. This was rejected by the Council.
16. The developer lodged an appeal with the planning inspectorate and permission was then granted early in 2021. The developer then submitted a further planning application to the Council to develop more buildings on the site. The Council granted permission for this late in the summer of 2021.
17. During 2022 and whilst construction was underway, Mr X reported various issues to the Council that he said were planning breaches. The Council opened an enforcement case to investigate the alleged breaches. Mr X and the Council communicated numerous times about the issues over the coming months, with the Council liaising with the developer to discuss relevant issues at the same time.
18. In December 2022, the Council advised Mr X that it had been out to visit the site. It had taken various measurements and assessed that there had been no visible raising of the ground level that could be seen as worthwhile to pursue with the developer. It confirmed the existing fence height between property boundaries was to be kept. It also advised that the planning inspectorate decision said the proposed development would not result in a material loss of privacy.
19. In the spring of 2023, following construction on site, the developer applied to ‘regularise works undertaken’ under S73A. This was to seek the Council’s approval for things the developer had changed during the construction works, but after it had already made the changes and built the development. Mr X sent a letter to the Council to object and raise various concerns about the proposed alterations to the original, approved plans.
20. The Council considered the developer’s S73A application. The officer’s report listed a number of objections received. These included that the development caused a loss of privacy and that the height of the finished development was greater than that in the original plans.
21. The officer considered the changes and was satisfied the altered position of the building on the plot and its increased height did not ‘fundamentally impact its overall design, appearance and layout’ or ‘conflict with the established principle of the development’.
22. The officer was satisfied the proposed amendments were appropriate. The Council granted permission which meant it approved the changes.
23. The Council closed its enforcement case in August 2023.
24. In mid-November 2023, Mr X complained to the Council about various matters linked to the development. Mr X also approached the Ombudsman to make a complaint. We asked him to complete the Council’s formal complaints process as normal.
25. At the beginning of March 2024, the Council sent its stage one complaint response to Mr X’s November complaint. In this, it:
• confirmed all of the various enforcement complaints about the neighbouring development had been investigated;
• advised no breaches were established or proven;
• said that although the site may not have been developed in accordance with the original planning permission granted, amendments had been applied for and considered accordingly (S73A);
• confirmed that if trees (which were part of the planning permission) had not been planted by the end of March, he should contact the Council so it could investigate the matter further; and
• said the alleged increase in height was investigated and no raising of the ground levels was identified.
26. The letter ended by advising Mr X that if he had further evidence regarding the alleged increase in ground levels it would consider this but the enforcement file was currently closed as he had been advised.
27. A few days later, Mr X escalated his complaint to stage two of the Council’s complaints process as he remained unhappy with its response. Amongst other points, Mr X said:
• he had sent photographs of the raised ground height along with the original ground survey compared to the new survey of the actual build;
• the raised heights were included on the revised planning application and had been approved without contest by the Council;
• the original planning application said there would be no loss of privacy;
• the original six-foot high fence was still in situ despite the new development being at least two feet higher which meant there was now a direct line of sight into his property and garden; and
• he questioned why the Council found it acceptable that the ground level had been raised but not the fencing which was supposed to maintain his privacy.
28. The Council sent Mr X its stage two complaint response in mid-April 2024. The response said:
• the original plans for the driveway of the development had been refused by the Council but subsequently overturned by the planning inspectorate on appeal and with some conditions attached;
• the inspectorate had found the development would not result in any material loss of privacy to the existing neighbour;
• it noted Mr X’s complaint though, was about the height of the driveway itself; and
• it had confirmed with its planning department that the issue of the ground being raised had already been investigated and the Council was unable to evidence that the height of the driveway had been changed.

Analysis

Context

29. The Ombudsman is not an appeal body. We do not make planning decisions. Rather, we consider whether there was any fault in how the Council acted when considering any relevant legislation, guidance or local policy in relation to the matters concerned.
30. If we consider the Council followed processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.

The neighbouring development

31. The fence which provides a border between Mr X and the neighbouring development was already in position before final (retrospective) plans were submitted. There were no conditions attached to the retrospective plans about its position, height or any changes which should be made as a condition of granting the permission.
32. Evidence shows the Council considered the various breaches Mr X reported and decided that at the time of closing the enforcement file, no breaches had been found. I am satisfied there is no fault in its actions here.
33. In terms of the finished development, I am satisfied the Council has adequately considered Mr X’s loss of privacy and the finished height of the building in its decision on the S73A application made in 2023.
34. Whilst I acknowledge Mr X is unhappy with the finished development, I find no fault in the Council’s actions in the process of how it came to its decision to approve the S73A application.

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Final decision

35. I have now completed my investigation. I do not uphold this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman