The greyed out material is misleading filler (conditions 3 and 4) and each of the paragraphs except 22 contains a misrepresentation or misdirection which has been highlighted and a comment made in blue.
19. We know work on the foundations started within five years of the approval. Building control inspectors confirmed it at the time. However, the developers had not met conditions 3 and 4 before starting work in 2001. The Council considered if this meant the permission had not been implemented (i.e. if commencement was in breach of the Whitley principle). It concluded conditions 3 and 4, although pre-commencement conditions did not go to the heart of the permission. The Council found the planning permission was lawfully implemented. There is no fault in either the process or reasoning by which the Council reached this decision.
It may be lawfully implemented but to say that to mean it is not in breach of building control is fraudulent misrepresentation. See Paragraph 22 for the truth.
20. In response to the draft of my decision Mr X says because the foundations are too wide the permission was not lawfully implemented. I did not say anything about them being lawful. I know exactly what I said and it was: “That they were not laid in accordance with the authorised plans (1m too wide) was overlooked by the Council. This could have been looked at if the Council had ask(ed) for retrospective planning application.
The developer started work within five years, meeting condition 1. He could have done this by digging one trench. Instead the developer laid the foundations. If they are too wide this concerns compliance with condition 2, which is not a pre-commencement condition. The Council’s view the permission was lawfully implemented is sound, even if the foundations are wider than shown in the plans. I should also say we cannot know if the foundations laid by the developers in 2001 were wider than allowed in the plans. In February 2014 the Council said the increased width gave greater structural stability. It is possible the developer widened the foundation laid in 2001 to provide improved stability.
21. The Council considered if the building accorded with the approved plans. The planning officer originally assigned the case considered the developers were building the boat shed to the measurements in the 1996 plans. Mr X says he told residents this at a public meeting. The Council accepts these measurements were wrong. They were not wrong. If a more senior officer had checked the measurements it must have been on or near the 17th September i.e. two months before the Council met with the residents committee, at an exclusive meeting 25-Nov-13, where we were told the base and height were compliant. Mr Dawson told the public meeting in March 2014 that the shed had been built without planning permission.
22. A more senior officer checked the measurements; he found the width at ground level was just less than one metre wider than the permission allowed. The Council decided the developer had not built the shed entirely in accordance with the approved plans and so had not met condition 2. The Council decided this was a breach of planning control.
23. The Council considered the difference between the permitted width and the width of the built shed and decided not to enforce. Enforcement is discretionary and the Council explained to residents in great detail how it reached its decision. It explained the law and policy it considered. There is no need for me to repeat this. It decided the degree of departure from the plans – less than one metre – was “non-material.” In the response to our Petition the Head of Development Services said the variation in width was material. It had been so since the footings were laid in 2001. Given the overall scale of the building, its decision is sound. The Council took the view “comparing the as built development from that for which permission was granted, there are not considered to be any additional significant impacts to residential amenity that would justify taking enforcement action.” In other words, there was not enough harm.
Conclusion.
In paragraphs 19-21, the Ombudsman has drifted from a complaint about non-compliance in width to one about the lawfulness of it and in this she appears to be following the directions of a Senior Planning Officer of South Tyneside Council rather than mine because I never questioned the lawfulness of anything.
22-23 The Ombudsman was told by me that we were advised that the shed was compliant in December but the Planning Manager conceded that it was wider and taller two months later.
Nothing had changed during that time which was why the senior planning officer rearranged the sequence (rewrote the history) to make an excuse for the Principal Planning Officer misleading us.
Contradictory statements, 22: The Council decided this was a breach of planning control and 23: It decided the degree of departure from the plans was “non-material.”