Summary: The Council was at fault for approving plans to increase the height of Ms X’s neighbour’s property without following the proper decision-making processes. Ms X says the increase in height negatively affects light and privacy in her home. However, we do not find that this fault caused an injustice, as Ms X lives a significant distance from the property.

The complaint

1. Ms X complained the Council approved an amendment to a plan which allowed a neighbouring property to be built higher than was shown on the original plans.
2. Ms X said neighbours were not consulted before this decision was made and the Council was wrong to consider such a significant change through a process meant to be used for minor amendments.
3. Ms X said the property overlooks her and her neighbours’ homes, affecting their light and privacy.

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The Ombudsman’s role and powers

4. 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)
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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How I considered this complaint

6. I considered the information provided by Ms X and the Council.
7. I considered the relevant law and guidance as set out below.
8. I considered our Guidance on Remedies.
9. I considered comments made by Ms X and the Council before making a final decision.

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Law and guidance

Planning law and policy

10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
12. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. Applicants need to provide information to the Council to ‘discharge’ planning conditions. Decisions to discharge planning conditions are usually made by officers using delegated powers.
14. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
15. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
16. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
17. If the Council decides the changes are ‘material’, it may require that the whole process begins again with a fresh application, which would be publicised. However, the courts have made it clear that, if the changes are considered ‘non-material’ councils may allow changes without re-starting the process, but only if:
• they consider the procedural fairness of doing so. This means they should consider whether they might deprive any third party of the opportunity of making representations they might want to make; and
• the nature of the application remains the same, so the amended proposal is still substantially the same as the original.
18. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.

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What I found

Original planning application

19. The Council granted planning permission for Ms X’s neighbour to build a three-bedroom house. There is 22 metres of separation between Ms X’s property and the nearest house on the new development. There is also a row of trees between the two buildings.
20. Planning permission was granted subject to conditions. One of the conditions required site levels to be, ‘submitted to and approved in writing by the Local Planning Authority’.
21. The property has increased in height from the levels set out in the original plan. On the side facing Ms X’s house, levels have increased by 1.2 metres.

Application to make ‘minor’ changes

22. Sometime after the original application was approved, the Council approved an application for minor changes relating to the ‘landscaping’ of the development. This referred to proposed amendments for trees, plants and hedges around the property.
23. The landscaping plans application included a drawing which the Council explicitly approved in its decision letter. However, this drawing did not only show landscaping. It also introduced increases to site levels.
24. I have seen no evidence to show the Council considered changes to site levels when it considered the landscaping amendments. If the Council had considered the changes and found them to be acceptable, we would expect it to keep a record of its reasons, albeit briefly stated.
25. The Council said it accepts its normal processes were not followed in this case, as any application to significantly increase the height of a proposed building is usually outside the scope of a discharge of conditions or non-material amendment application.
26. The Council said it was aware of its legal obligation to consider the procedural fairness test set out in the first bullet point of paragraph 17 above. However, there is no evidence to show that it did so in this case.

My findings

27. The Council did not consider the impact of increased land levels when it approved amendments to landscaping plans. This is fault.
28. Whenever we find fault, we must determine whether it caused a significant injustice to the individual complainant.
29. I cannot show that, but for the fault I have found, the Council would have made a different planning decision. This is because Ms X lives a significant distance from the property that is normally considered acceptable by planning authorities. Therefore, I find fault, but it has not led to a significant injustice to Ms X.
30. The Council also said that it knew of the procedural fairness test set out in paragraph 17 above. However, there no evidence to show it considered the test or the issues it should apply to before it made its decision. This is fault.
31. Though I have not found a significant injustice to Ms X, I will recommend service improvements to avoid recurrence of the fault.

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Agreed action

32. Within one month of the date of the final decision, the Council should demonstrate that it has;
• reminded planning officers of the importance of carefully checking condition application details before discharging them; and
• ensuring its officers are aware that, regardless of the planning merits of minor amendments, they must consider whether third parties might want to comment on changes before a decision is made, as well as whether the substantive planning issues that affect their judgments.

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Final decision

33. We found fault in the way the Council made its decision, but the fault did not make any difference to the outcome. The Council agreed to improve its service to avoid recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman