on an investigation into
complaint no 00/A/09260 against the
London Borough of Camden
20 August 2001
Mr Bartram (not his real name for legal reasons) complained that the Council had not correctly considered the possible effects on his home of a proposed neighbouring development when it granted planning permission. In particular he said the Council failed to give due account to potential instability and did not follow its own policy. He also complained that the Council had attempted to mislead him when he complained about the decision.
The Ombudsman finds that there was maladministration by the Council. A report on the planning application omitted express mention of a policy that was relevant to the application. He considers that this caused injustice to Mr Bartram who was put to avoidable time and trouble in complaining to the Council and to the Ombudsman. He recommends that the Council should pay Mr Bartram £250 in recognition of this. However, the Ombudsman concludes that the omission did not flaw the decision to grant planning permission.
The Ombudsman also concludes that although there were some discrepancies in the Council’s letters to Mr Bartram and others, they were not motivated by an intention to mislead or cover up.
1. Mr Bartram complains about the way the Council considered an application for planning permission for the development at the property that adjoins his. In particular he says the Council failed to give due account to potential ground instability and did not follow a policy set out in the Council’s Unitary Development Plan (UDP).
2. One of my Investigators has met Mr Bartram at his home, examined the Council’s files and interviewed a planning officer and two building control officers. Mr Bartram and the Council were given the opportunity to comment on two drafts of this report before the conclusions were written. I have taken account of their comments in preparing the final text and in reaching my conclusions. In accordance with section 30(3) of the Local Government Act 1974, my report does not use the real names of any of the people involved.
3. Mr Bartram lives in an area of Hampstead, which he says has a history of ground instability. His own house has internal cracks and he knows of others in the close vicinity that have shown evidence of cracking or subsidence. A local society told the Council in April 2000 that the area forms part of a very unstable hillside composed largely of Bagshott sands and gravels. Moreover it is affected by underground rivers and streams.”
4. The Council’s UDP contains policy EN11 (formerly known as EN12) which says:
" In determining applications for development in unstable locations the Council will give consideration to the possible adverse effects on the stability of adjoining land, local amenities and conservation interests. Where instability is suspected the Council will require applications to be accompanied by a report on the issues relevant to ground instability and indication of the measures to overcome it. Where instability may be such that it cannot satisfactorily be overcome, planning permission may be refused.”
The justification for this policy says, in part:
" Geological conditions such as unstable slopes, ground subject to shrinking and swelling clay and the rising groundwater affecting parts of London, such as much of Hampstead, as well as made-up ground, landfills or excavations can create problems of instability.”
5. In April 1990 the Government issued Planning Policy Guidance Note 14 on the development of unstable land. Among other things, the guidance says:
16. The responsibility for determining whether land is suitable for a particular purpose rests primarily with the developer. In particular, the responsibility and subsequent liability for safe development and secure occupancy of a site rests with the developer and/or the landowner.[...] The developer should therefore make a thorough investigation and assessment of the ground to ensure that it is stable or that any actual or potential instability can be overcome by appropriate remedial, preventive or precautionary measures. It is important that such an assessment of a proposed development site should examine the site within its geographical context since instability of nearby ground may affect a site even where there is no evidence of instability within its boundaries [...]
20. It is not the responsibility of the local authority to investigate the ground conditions of any particular development site unless they propose to develop it. They are, however, empowered under the Town and Country Planning Act  to control most forms of development and are responsible under the Building Regulations and the Housing Acts for controlling particular aspects of the development. When reaching decisions on development proposals, local planning authorities have a duty to take all material considerations into account. The stability of the ground is so far as it affects land use is a material consideration which should be taken into account when deciding a planning application.
21. The principal aims of considering land instability at the planning stage are;
to minimise the risks and effects of land instability on property, infra-structure and the public;
to help to ensure that various types of development should not be placed in unstable locations without appropriate precautions;
to bring unstable land, wherever possible, back into productive use; and
to assist in safeguarding public and private investment by a proper appreciation of site conditions and necessary precautionary measures.
22. A planning authority does not owe a duty of care to individual landowners when granting applications for planning permission and accordingly is not liable for loss caused to an adjoining landowner by permitting development. Nevertheless, where development is proposed on land which the planning authority knows is unstable or potentially unstable it should ensure that the following issues are properly addressed by the development proposed;
the physical capability of the land to be developed;
possible adverse effects of instability on the development;
possible adverse effects of the development on the stability of adjoining land; and
possible effects on local amenities and conservation interests of the development and of any remedial or precautionary measures proposed.
23. It is the function of the planning system to determine, taking account of all material considerations of which instability is only one, whether a proposed development should proceed. Having made that decision for certain types of development, it is the function of the Building Regulations to determine whether the detailed design of buildings and their foundations will allow the buildings to be constructed and used safely. [...]
34. Where there are good reasons to believe that instability could make the ground unsuitable for the proposed development, or could adversely affect it or neighbouring land, a specialist investigation and assessment by the developer to determine the stability of the ground and to identify any remedial measures required to deal with any instability may be required before the application can be decided. [...]
35. If the information about instability initially provided by the applicant is insufficient to enable the authority to determine the application two alternatives would appear to be open to the authority;
(I) if the applicant clearly fails to meet other planning criteria then the application may be refused. [...]
(ii) if a refusal on other planning grounds is unlikely or not clear-cut, the applicant may need to be asked to provide further information about stability. […] The authority would then determine the application in the light of such information as is provided.”
6. In February 1997, the Government issued the third edition of Planning Policy Guidance Note 1: General Policy and Principles. Paragraph C3 of Annex C to the Guidance Note says:
" Planning legislation should not normally be used to secure objectives achievable under other legislation. This principle of non-duplication should normally be maintained even though the powers and duties resulting from the other legislation may also be the concern of local authorities. But even where consent is needed under other legislation, the planning system may have an important part to play, for example in deciding whether development is appropriate for the particular location. The grant of planning permission does not remove the need to obtain any other consents that may be necessary, nor does it imply that such consents will necessarily be forthcoming. Provided a consideration is material in planning terms, however, it must be taken into account in dealing with a planning application notwithstanding that other machinery may exist for its regulation.”
7. The Party Wall Act 1996 provides that where an owner of property proposes any excavation which will within three metres extend to a lower level than the level of the bottom of the foundations of the building or structure of the adjoining owner, the owner must serve a notice giving his or her intentions and explaining how the existing structure will be protected. The Act specifies a procedure for resolution of disputes over work required and over costs.
8. The Building Act 1984 requires builders to submit details of many proposed developments to the local authority or to an Approved Inspector, who must then decide whether the proposals satisfy the Building Regulations. The purposes of the Regulations are to secure personal health, safety, welfare and convenience; conserve fuel and power; and prevent waste.
 Building Act 1984, Section 1
9. On 1 March 2000 Mr Bartram’s neighbour made an application to the Council for planning permission. The application was for the rebuilding of the side extension of the one storey building already on the site, the provision of two roof lights and the creation of a basement area.
10. On 8 March the Council wrote to Mr Bartram to invite his comments on the application. Mr Bartram replied on 28 March. I will quote what appear to me to be the passages of his letter which are most material to the complaint to me:
" My wife and I have no objection to the works proposed on the ground floor of [the neighbour’s building], or any other reasonable proposals on that level. But we object to the creation of the proposed basement [...] As an alternative we object to the size of the huge basement which is proposed, and (at the very least) to all the major part of the whole basement which is nearest to our property.
The HCAA Committee [Hampstead Conservation Area Advisory Committee] have already commented upon this application, and have objected to it on the grounds that it involves development which is too intense. Before their opposition to this application was expressed, we had not made any sort of representation to the HCAAC or any member of it. Indeed we did not know that the matter had already been referred to that Committee. So, without any persuasion from us, that opinion was the opinion of independent local persons (several of them professionally qualified) who are well aware of the site and of the nature of the area, and of the suitability of this form of intensive development on such a site. [...]
We also object on the same ground as the HCAAC.
Secondly, what follows after this paragraph is based on an argument of law. We are aware that there is a distinction between
(a) proper planning considerations, and
(b) arguments based on building control considerations or on rights under common law, and that rights claimed solely under building controls or in law may not be proper matters to be taken into account in making a planning decision.
However the boundary between these categories is far from clear, and they are not mutually exclusive. Considerations arising from the nature of the ground-conditions on and around a site may be highly relevant to the planning issue whether a proposed development is too intensive for that site. This is precisely such a case. It would therefore be wrong in law for the planning authority to dismiss such considerations as irrelevant to the making of the planning decision in this case.
With more and more intensive use of it, this southern slope of Hampstead hill, composed of Bagshot sand and gravel and some layers of Claygate clay, is apparently becoming more and more susceptible to movement. Of no area is this more true than the area round [Mr Bartram’s Road]. Moreover this area is also riven with underground rivulets flowing south and even, I believe, by another stream or other presence of water between both these roads (as appears below).
As a result our own house in recent years has already suffered cracking in some of its structural walls, with the main crack in the flank wall (on the first floor) adjacent to the application site. Insurers had to be involved when the cracks appeared. Our house is a tall three-storey building which is very narrow relative to its height. Apart from a small back addition (itself narrow) on the ground floor, the flank width of the house is only twelve feet, ie. it is only one room wide, and is therefore the more vulnerable
I was also informed two weeks ago by the owner of the house immediately opposite ours [...] that last year his house has developed significant cracking. A little further up the road [...] a basement was excavated some years ago, which resulted in flooding and movement which, I remember, necessitated the presence, during an extended period, of great tankers’ in the road, pumping water out and then pouring concrete into the house.
Less than 100 yards away from our house in the other direction [...] [a specified house] suffered considerable subsidence some years ago and had to be extensively underpinned by insurers at a cost put by its owner at about £20,000. More years ago, the road itself outside that same house [...] collapsed with a great hole in it [...]
It is in the area by [the specified house] that yet another underground stream runs, which formerly had outlets on and near the road at the Hampstead 'Head Spring’ [...]
All these examples in this immediate neighbourhood (within 100 years from our house) can be proved by evidence. They have become known to us simply as close residents when we began to realise the way in which conditions in and around [Mr Bartram’s road] have been changing. There may well be other instances known to the planning authority but not known to us; eg. by common repute there have recently been about three swimming pools built not far away, and I believe that similar movement problems have been met with at least one of them.
It is clear that this immediate area is, as indicated above, particularly susceptible to movement problems. Such local conditions are directly relevant to the question whether a proposed development is too intense in the area and position concerned. In law such conditions cannot be dismissed as relevant only to issues of building control or the law of nuisance or the law relating to support of neighbouring buildings. In appropriate circumstances (such as exist here) such other remedies may also be available to those put at risk by a proposed development. But that does not entitle a planning authority, when considering the intensity of the development proposed, to ignore the proved conditions local to the proposal.
Even more so this is true in a Conservation Area. The HCAAC are correct in saying that not only is the proposed development too intense in itself, but also that it will cause damage to, ie. an in-road on, the principle of the Conservation Area.”
Later in his letter Mr Bartram said that the proposed development:
" would bring the supporting basement party-wall or party-walls, supporting both the open area and (in part) the print room, right up to the actual boundary between our property and the studio site and within about three feet from our house.”
11. The planning application was considered by a Planning Officer (Athe Planning Officer”). She discussed it with a Building Control Officer. The Planning Officer made a note of the discussion. The note said:
Spoke BC who advise that not a known [area] for instability B all areas suffer from cracks etc & not indicative of instability problems in area. [Illegible] flooding [?] in basement
a. No worse than elsewhere in Boro else
b. spk briefly about examples but again reiterated B no more problems than elsewhere [...]”
The Building Control Officer was not asked to put his advice in writing. The Planning Officer told my Investigator that the Aexamples” referred to in her note were the examples Mr Bartram had mentioned in his letter of objection.
The Planning Officer told my Investigator that it was normal for her to consult a Building Control Officer face to face as they worked close together. Her decision to consult on this application was because the proposal included a basement and because of Mr Bartram’s objections. She said she had not been able to find any record of a planning application where the applicant was asked to provide details in accordance with policy EN11.
13. The Building Control Officer told my Investigator that in his view Hampstead is not an unstable area. He regarded serious ground instability as that caused by mining or other excavations or by land-fill. He said that engineering solutions can be adopted to enable any building work in the area. Shortly before the Planning Officer asked him about this application, he had made a number of visits to a site in Mr Bartram’s road, very close to the application site, where similar work had been carried out. (My Investigator has seen the records of these visits.) The Building Control Officer had inspected excavations for underpinning to satisfy himself that it was being correctly and appropriately installed. He said that this gave him specific knowledge of ground conditions relevant to the application site. He was not aware of the wording of policy EN11; he told my Investigator that he disagrees with the implied view that much of Hampstead is geologically unstable.
14. The Planning Officer told my Investigator that she had visited the application site on two occasions; once alone and once with the applicant’s architect. After speaking to the Building Control Officer, she had discussed the application with her manager; they had agreed that B in the light of the Building Control Officer’s advice B it would not be reasonable to ask the applicant for more information about the soil conditions. It was for this reason that she did not take up the offer by the architect to provide both copies of a report on the soil conditions which had been obtained by a structural engineer and of the engineer’s drawings for underpinning the proposed works.
15. The Planning Officer wrote a report on the planning application. It briefly described the site and the proposal. It cited ten relevant policies in the UDP; but policy EN11 was not cited and the report contained no express reference anywhere to policy EN11. Section 5 of the report summarised the responses to the consultations on the application and commented on them. Section 5 said:
5.1 Conservation Area Advisory Committee Comments
Hampstead CAAC raise objection to the proposal advising that if the applicant requires additional accommodation they should find it on another site. The proposal is too intense and would damage the building and Conservation Area.
5.2 Local Groups
The Heath & Hampstead Society raise objection to the proposal to excavate the basement. They advise that they have taken legal advice and that the unstable ground is a material planning consideration and that the Council cannot grant planning permission without taking into account the unstable ground.
5.3 Adjoining Occupiers
Number Notified 7
Replies Received 2
In support 0
Two letters have been received which object to the proposal on the grounds of disturbance to the footings and foundations. The second letter raises no objection to the works proposed at ground level but raises objection to the proposed basement. Objection is raised to the large basement area, that the use will be too intense and furthermore will result in further land movement. Their house has structural cracks. Furthermore, a recent basement excavated at [a house Mr Bartram had cited] resulted in flooding and movement. The letter advises that the implications of the [sic] such an intense development on the possible likelihood of further land movement resulting in structural problems for neighbouring properties is a planning matter and should not be dismissed by the Council as a matter for building control only. They go on to mention other examples.
Comment: The case officer has liaised with the Building Control Section who have advised that the area where the property is located is not, to their knowledge, within a known area for ground instability. In the light of this advice, it is not considered reasonable to require the applicant to provide more additional information in respect of the stability of the land, excavation details and structural details of how the extension and works are to be constructed. It is the function of the Building Control Regulations to determine whether the detailed design of buildings and their foundations will allow the building to be constructed and used safely.”
In the section of the report giving the Planning Officer’s assessment of the application, there was the following paragraph about the ground conditions:
6.7 The potential instability of the land is a material planning consideration which needs to be considered in the determination of any application. However, in the light of the advice provided by the Building Control Section, i.e. that land instability is not a known problem in this area, the structural implications of excavating the basement area and yard area should be dealt with under Building Control legislation and through the Party Wall Act. Finally, the agent has advised that structural engineers have inspected the site and dug test pits. They have not discovered conditions which would be likely to prevent the development going ahead.”
The report recommended that planning permission for the development should be given subject to some conditions, none of which concerned further investigation of the stability of the soil.
17. Because there had been objections to the proposal, the report was the subject of a briefing meeting with two Councillors (Athe Members’ briefing meeting”). The purpose of the meeting was to consider whether the application should be decided by officers under the delegation arrangements or should be referred to the Development Control Sub-Committee. The meeting decided that the application should be dealt with by officers under the delegation arrangements.
18. On 22 May the Council granted planning permission for the development with a number of conditions, none of which related to the stability of the soil. On 1 June the Council wrote to tell Mr Bartram the decision and said that:
" Concerns had been received which object to the proposed basement on grounds of disturbance to footings and foundations and the possibility that the proposed excavation will result in further land movement resulting in structural problems for neighbouring properties.
You are advised that the case officer has liaised with the Building Control section who have advised that area where the property is located is not, to their knowledge, within a known area for ground instability. In the light of this advice, it was not considered reasonable to require the applicant to provide more additional information in respect of the stability of the land, excavation details and structural details of how the extension and works are to be constructed. It is the function of the Building Control Regulations to determine whether the detailed design of buildings and their foundations will allow the building to be constructed and used safely.”
19. On 9 June 2000 Mr Bartram wrote to a Councillor to complain about the decision. He said that the decision had been reached by way of ignoring or not considering or concealing facts about the instability in nearby houses which he had provided in his letter objecting to the planning application. Mr Bartram asked if the Planning Officer had told the Building Control Officer about the examples he had given. In the light of those examples, he asked how the Building Control Officer could possibly have given the advice that the area was not one known for ground instability, particularly since no one from the Council had asked him about the examples or visited him or the other properties he had mentioned. Moreover, the justification for policy EN11 expressly referred to Amuch of Hampstead” as an area where there could be geological instability. Mr Bartram also asked if there had been a report on the application. He wrote about the risk to his house and the uncertainty to which he and his wife were exposed by the Council’s decision. He said that this would have been avoided if, by taking fitting notice of his objections and having the issues decided by a fully informed committee, the Council had done its job properly.
20.On 10 June the Health and Hampstead Society (HHS) wrote to the Council citing policy EN11. The HHS said that it was incomprehensible that the application site was said by the Building Control Section not to be in a known area of ground instability. The letter asked the Council to pay close attention to Mr and Mrs Bartram’s concerns and to do everything to ensure the safety of the property of the Bartrams and their neighbours.
21. On 14 June the Conservation Area Advisory Committee wrote to tell the Council that it shared the concerns of the HHS. The Advisory Committee said that policy EN11 obliged the Council to require a report from the applicant on sub-soil conditions and proposals for dealing with any problems it revealed. The Advisory Committee was astonished that planning permission had been granted without the imposition of such a condition.
22.On 16 June, Mr Bartram wrote to the Chief Executive to give him notice that he was consulting solicitors about the grant of the planning permission; an application for judicial review of the decision might be made. Mr Bartram’s letter continued:
The main details of the grounds for such proceedings appear in the enclosed copy letter which I wrote on the 9th June 2000 to Councillor [...], whom I had earlier consulted in connection with this application. I have asked certain questions in that letter, and I am entitled to know what the answers to those questions are. To summarise the grounds: it is clear that in obtaining the so-called advice’ from Camden’s own Building Control officers to the effect that ... "the area where the property is located is not, to their knowledge, within a known area for ground instability”, the already-existing subsidence to my house and the details of the instabilities which other nearby houses and [the] Road itself have suffered were ignored by Camden’s officers, and no inquiries to me or other house-owners about the true local situation were made. The 'advice’ obtained from the B.C. officers was itself no more than a statement of inaccurate fact.
Previously all these facts about local instabilities had been expressly drawn to Camden’s attention by me in paragraphs 6 and 7 in my written Objection in March this year to the planning application. Moreover Hampstead is itself uniquely picked out in Camden’s own UDP as being extensively liable to ground instability, and a special provision in the UDP relating to instability was circumvented by the course which was followed in the granting of this permission.
Since writing the letter to Councillor [...] on the 9th June, I have been supplied with a copy of the relevant part of the planning officer’s Report which, I am told, accompanied the application when it was considered by a 'panel’ of only two Councillors. This too made no mention about the factual matters which I had referred to in my Objection, and in its material paragraph merely referred to the so-called 'advice’ from Building Control officers. No advice was tendered in this Report to the two Councillors about the complete conflict between the facts given to Camden by me about local instabilities and the so-called 'advice’ from Building Control officers in April/May; nor about any steps or investigations undertaken (if indeed any were undertaken) in order to resolve that conflict.
I do not at present know why this course has been followed by Camden officers. But if it transpires that it is an approved practice of the Borough of Camden to avoid the effect of their UDP in relation to areas of unstable ground, by seeking and obtaining inaccurate internal 'advice’ of this kind and ignoring known facts, then this too should be brought to public notice and will be made the subject of other relief in any proceedings brought.”
23. On 27 June the Chief Executive wrote to the Councillor about the concerns expressed by Mr Bartram and the HHS. On 28 June, the Director of Environment wrote to Mr Bartram and the HHS. The three letters were in similar terms. They explained why the planning application was decided by officers under the delegation arrangements; and they said that the Planning Officer had visited the application site and had written a report for the Members’ briefing meeting after taking the advice of the Building Control Section. All three letters said that:
"Although an adjoining occupier noted that several properties in the area had suffered from cracking, cracks are not uncommon to many properties in the Borough and are not in themselves justification to require the applicant to provide detailed structural information”.
The letters said that Mr Bartram’s concerns, and objections from others, were taken into full consideration. The Council had taken the view that:
" in the absence of known ground instability in respect of this property, it is the function of Building Control Services to determine whether the detailed design of buildings and their foundations will allow the building to be constructed and used safely. Furthermore, the Party Wall Act deals with developments that involve party walls and the implications of this”.
24. By 13 July, Mr Bartram had not received the letter from the Director of Environment dated 28 June; but he had seen the letters dated 27 and 28 June to the Councillor and the HHS. So on 13 July, Mr Bartram wrote to the Chief Executive’s office. He said that the letters to the Councillor and HHS contained a misrepresentation which had the clear effect of concealing the true nature of what had happened. The letters referred to 'cracking” but made no mention of the incidents of subsidence and flooding which Mr Bartram had cited in his letter of objection. Mr Bartram said that these awkward facts, which refuted the bland advice given by Building Control [...] were ignored [...] so that the provisions of the UDP could be circumvented”. Finally, Mr Bartram repeated his request for an answer to the question whether the Planning Officer had told the Building Control Officer, before or after receiving his advice, of all the facts contained in his letter of objection.
25. On 24 July the Director of Environment replied. His letter to Mr Bartram said (among other things) that he did not believe the letters to the Councillor and the HHS had been misleading. The examples Mr Bartram had given in his objection were noted at the time the application was determined and were available to all those involved in the decision-making process. The Director’s letter said:
"In the absence of engineering details in respect of the cracking problems experienced by yourself and [another house], flooding at [.....] and subsidence at [.....] and road collapses, discussions with Building Control in respect of subsidence cracking, flooding and collapses in the area were of a general nature. The possible problems raised by yourself were discussed at the time that Building Control Section advised that this area was not a known area for ground instability, to any more severity than other areas in the Borough”.
The Director enclosed a copy of his letter of 28 June to Mr Bartram
26. Agreement under the Party Wall Act was reached on 20 April 2001. The agreed work includes a line of 19 piles near the boundary between Mr Bartram’s property and the development site. The Building Control Officer is supervising the works for compliance with building control. He is satisfied that the extent of the piling will be sufficient to ensure stability.
27. Mr Bartram considers that the Council failed to take proper notice of the facts he had cited about incidents of cracking, subsidence or flooding in his own house and nearby. Policy EN11 says that where instability "is suspected” the Council will require applications to be accompanied by a report on the issues relevant to ground instability and an indication of the measures to overcome it. Mr Bartram considers that he had provided facts giving grounds for such suspicion. Yet no officer visited his house or made inquiries to him about the examples he had given. Moreover, the Building Control Officer was not told about policy EN11 when he gave his advice to the Planning Officer. The report to the Members’ briefing meeting omitted any reference to policy EN11. The reference in paragraph 6.7 of that report to test pits dug by the applicant’s structural engineer was irrelevant; none of the three test pits was within 20 feet of Mr Bartram’s boundary.
28. Mr Bartram considers that if the Council had acted properly either planning permission would have been refused or the developer would have been required to provide the information specified in policy EN11. Mr Bartram says that because of the way the Council reached its decision, he has had to endure protracted party wall negotiations and he has had to incur substantial costs for the advice of solicitors and an engineer.
29. Mr Bartram also considers that the Council tried to "cover up” its errors. For example, the Council’s letters of 27 and 28 June to the Councillor and the HHS (see paragraph 23 above) referred only to "cracking” and omitted reference to the examples of subsidence and flooding he had given. Mr Bartram also questions whether the letter dated 28 June was actually written and sent to him at that time (see paragraphs 23 to 25); and he points out that that letter refers to him as "an adjoining owner”.
30. The Council accepts that the Planning Officer’s report (paragraphs 15 and 16 above) should have mentioned policy EN11 but does not consider that this omission affected the decision, since B in the Council’s view B the report did adequately address the issue dealt with in the policy. Councillors who considered the matter could have referred the application to the Development Control Sub-Committee but decided not to do so.
31. In May 2001, the Council told my office B for the first time B that shortly before Mr Bartram’s neighbour made his planning application, the Building Control Officer had been dealing with works to a site in Mr Bartram’s road, in close proximity to Mr Bartram’s property and the applicant’s. The Building Control Officer had made 13 inspections at that site between 19 January and 11 February 2000 and so had specific knowledge of ground conditions relevant to the application by Mr Bartram’s neighbour. The Council said that it was not necessary, therefore, for the Building Control Officer to visit the application site before advising the Planning Officer; and a report by the applicant on the ground conditions would not have provided any information which the Council did not have at its disposal at the time the planning application was being considered. Structural matters relating to the implementation of the development could appropriately be left to the powers of control in the Building Regulations.
32. In considering the planning application, the Council was required to take into account all the material planning considerations B of which the ground conditions were one B and all the relevant policies in its UDP. It was also required to take proper account of the representations it had received about the application, including the objections made by Mr Bartram.
33. It is a matter of fact that the report prepared by the Planning officer made no reference to policy EN11 but mentioned other UDP policies. The Council accepts that the omission was wrong. I find that it was maladministration.
34. Mr Bartram had grounds to "suspect” that there was instability; and his letter of objection gave specific examples in support of his suspicion. I have considered, therefore:
a. Whether the Council ignored or gave insufficient consideration to the information Mr Bartram had given;
b. Whether an officer should have visited Mr Bartram’s house and the other sites he had exemplified;
c. Whether the Building Control Officer was given proper information about the examples cited by Mr Bartram;
d. Whether the Council should have required the applicant to provide the information described in policy EN11; and
e.Whether the report prepared by the Planning Officer was so inadequate or misleading as to amount to maladministration.
35. I am satisfied that the Planning Officer did take account of the examples Mr Bartram had given. That was why she consulted the Building Control Officer. And paragraph 5.3 of her report to the Members’ briefing meeting (see paragraph 15 above) expressly refers to the structural cracks to the objector’s house; to flooding and movement at a house nearby; and to other examples given by the objector. The Planning Officer’s note of her discussion with the Building Control Officer says that they Ask briefly about examples” (see paragraph 11 above).
36. It is not clear if the Building Control Officer was actually shown Mr Bartram’s letter of objection. It is unfortunate that there is no contemporaneous record by the Building Control Officer of what documents he was shown or of his advice. But, on balance, I am satisfied that he was told of at least some of Mr Bartram’s examples and that he took those into account as well as his own recent detailed knowledge of soil conditions at a nearby house. I have concluded that, in the light of that knowledge, it was not maladministration for the Council to decide that it need not visit Mr Bartram’s house and the other places he had mentioned.
37. It was also reasonable for the Council to conclude that, in the light of the Building Control Officer’s knowledge of local grounds conditions, it should not require the applicant to provide a report on conditions at the application site and an indication of proposals to overcome instability. I can understand, however, why Mr Bartram (and others) consider that, because of the way policy EN11 is drafted, the Council was obliged to require this information. That policy says the information will be required AWhere instability is suspected”. The policy does not say by whom the suspicion is to be held. Certainly, it was suspected by Mr Bartram. Moreover, the justification for policy EN11 expressly says that the relevant geographical conditions affect "much of Hampstead”even if the Building Control Officer does not share that view (see paragraph 13 above).
38. As I have already said, I find that the omission from the Planning Officer’s report of any reference to policy EN11 was maladministration. But I think the report did provide an adequate summary of Mr Bartram’s objections; it specifically said that potential instability of land was a material planning consideration; and the assessment of the application refers to the advice given by the Building Control Officer. The report also gives the reason why it was not considered reasonable to require the applicant to provide more information about the stability of the land and about related works. On balance, therefore, I have concluded that the report was not inadequate or misleading save for the omission of any express reference to policy EN11. I consider that that omission alone is not sufficient to flaw the decision of the Members’ briefing meeting that the application should be dealt with by officers under delegated powers or to flaw the decision to grant planning permission.
39. It would have been open to the Council to attach a condition or conditions to the permission requiring further information about the ground conditions. But I consider that it was reasonable for the Council not to do so because, in the Council’s view, the structural matters could be dealt with appropriately under the Building Regulations; and paragraph C3 of PPG1 says that planning legislation should not normally be used to secure objectives achievable under other legislation (see paragraph 6 above).
40. I do not know why Mr Bartram did not receive the Director of Environment’s letter of 28 June until he received the copy enclosed with the Director’s letter of 24 July (see paragraphs 24 and 25 above). It seems to me likely, however, that the letter of 28 June to Mr Bartram was prepared and sent at that time because the letter of 28 June to the HHS was received by the Society.
41.I agree with Mr Bartram that the references in the letters of 27 and 28 June to an adjoining owner noting that Aseveral properties in the area had suffered from cracking” was inaccurate (see paragraph 23 above). Mr Bartram had also referred to subsidence and flooding. But I am not persuaded that the inaccuracy was motivated by an intention to mislead or cover up. I am surprised, however, that the Council at no stage told Mr Bartram, the Councillor or the HHS about the recent inspections the Building Control Officer had made of the nearby site and which he took into account in giving his advice to the Planning Officer. Again, however, I see no reason to believe that there was an intention to cover up the matter.
42. I have concluded that the Council’s maladministration in omitting any reference to policy EN11 caused Mr Bartram an injustice. That omission caused Mr Bartram to doubt whether his concerns had been adequately considered. He was put to avoidable time and trouble in pursuing the point with the Council and in bringing his complaint to me. The deficiencies in the Council’s correspondence with Mr Bartram, the Councillor and the HHS also caused Mr Bartram avoidable time, trouble and frustration. I recommend that the Council should recognise this by paying Mr Bartram £250. I also recommend that the Council should consider introducing a requirement that Building Control Officers should put in writing their advice to planning officers (see paragraph 36 above); and should review the terms of policy EN11 and the justification for it (see paragraph 37).
E B C Osmotherly CB 20 August 2001
Local Government Ombudsman
21 Queen Anne’s Gate
London SW1H 9BU