Summary: Mrs X complained about how the Council dealt with a planning application near her home. There was fault in how the Council considered a non-material amendment application, but this did not affect the outcome. There was also fault in how the Council responded to Mrs X’s complaint which caused her avoidable distress, time and trouble. The Council agreed to pay Mrs X the financial remedy it has offered and issue a reminder to its staff.

The complaint

1. Mrs X complains about how the Council dealt with a planning application near her home. She says the Council did not consult her after the developer applied to make changes to the planning permission. She also says the Council failed to respond to her requests to escalate her complaint.
2. As a result, Mrs X says the Council approved the changes which resulted in a loss of value to her property and caused her avoidable upset and frustration. She wants the Council to either reverse its decision to approve the changes or compensate her for any loss in value of her property. She also wants the Council to take disciplinary action against its staff.

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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 significant injustice, or that could cause injustice to others in the future 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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

7. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning permission and non-material amendments

9. Most development to land or buildings requires planning permission. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Planning enforcement

11. 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.
12. 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.

Non-material amendments

13. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
14. If the Council decides the changes are ‘material’, it may require the whole or part of the process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process, but only if:

• it considers the procedural fairness of doing so. It should consider whether it 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.

15. This type of amendment is known as a non-material amendment. There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and a matter for the Council to decide.
16. 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’.

The Council’s complaints procedure

17. The Council has a two stage complaints procedure:
• Stage one – a response from the Council service concerned within 10 working days.
• Stage two – a review by the head of the Council service concerned within 20 working days.

What happened

18. The Council granted planning permission for changes to a building near Mrs X’s home in 2022. The planning permission said the works needed to follow the approved plans.
19. In mid-2023, Mrs X told the Council that the works had not been carried out in accordance with the plans. She said the way the building works had been done meant the building was now larger than approved, was overbearing and was less visually appealing. Mrs X also said the works, as built, would have an impact on the value of her property.
20. The Council contacted the developer and started a planning enforcement investigation. An officer visited the site of the development, took measurements, agreed there was a breach of the planning conditions and asked the developer to either rebuild according to the plans, or apply for a non-material amendment.
21. The Council told Mrs X it agreed there had been a breach of the planning conditions and of the options it had given to the developer.
22. The developer chose to apply for a non-material amendment. The Council did not notify Mrs X of the non-material application or seek her further comments on the changes.
23. The Council considered the non-material amendment application and decided the changes were non-material. It considered the changed did not have an unacceptable impact on the amenity of nearby properties, including Mrs X’s.
24. Mrs X complained to the Council in late 2023 that she had heard nothing further from the Council and that it had approved the changes to the building works.
25. The Council replied to Mrs X’s complaint in early 2024. It explained it had followed the correct process and its reasons for approving the changes.
26. Mrs X asked the Council to consider her complaint under the second stage of its complaints procedure. However, the Council did not respond to several of these requests from Mrs X until Spring 2024. The Council apologised for overlooking Mrs X’s messages but confirmed its decision that the change was non-material.

My findings

27. It is not our role to decide if the changes to the development were material or not; that was the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
28. I do not consider there was any fault in the Council’s first response to Mrs X’s reports of a breach of planning control. The Council asked Mrs X for more information, carried out a site visit and informed the developer that it considered they had breached planning control. It was also not fault for the Council to invite the developer to submit a non-material amendment application for it to consider. The Council did not suggest to the developer that such an application would be approved.
29. When deciding whether to approve a non-material amendment application, the courts have clarified that councils should consider the procedural fairness of such an application. Councils should consider whether a non-material amendment might deprive any third party of the opportunity of making representations they might want to make, which they could make as part of a full planning application.
30. I do not consider the evidence shows the Council explicitly considered the procedural fairness and Mrs X’s ability to make representations about the changes. That was fault.
31. However, I do not consider that fault affected the outcome. The Council was clearly aware of Mrs X’s views about the changes. Mrs X had explained to the Council that she objected to the changes and the impact she felt this had on her and her home. The Council had Mrs X’s written comments and photographs of the building work. Had the Council considered Mrs X’s ability to make representations, it is likely it would have decided she had already had that opportunity and approving the non-material amendment application would not have denied her that opportunity.
32. I do not consider there was otherwise fault with how the Council decided the non-material amendment application. The case report shows the Council considered both the nature of the changes and the effect on the amenity on nearby properties, including Mrs X’s. The Council considered these relevant issues based both on the information Mrs X had provided and its own visit to the property. The decisions the Council made about those issues were a matter of professional judgement for the Council’s officers. Since there was no fault with how the Council made those decisions, I cannot question the outcome.
33. There was fault with how the Council responded to Mrs X’s complaint, which the Council accepted. At stage one, the Council took more than the 10 working days to respond. Even taking into account the Christmas and New Year period, there was still a significant delay.
34. There was a further delay at stage two of the Council’s complaints process, when the Council overlooked several requests from Mrs X. However, once the Council realised it had overlooked those requests, it responded promptly.
35. In response to my enquiries, the Council said it wished to offer Mrs X a symbolic payment of £100 to recognise the distress and inconvenience caused by the delays in responding to her complaint. I consider that is a suitable remedy to recognise that distress. It also explained it had reminded staff of the importance of identifying and responding to complaints in line with the Council’s complaints process.

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Agreed action

36. Within one month of my final decision, the Council will pay Mrs X the £100 is has offered to recognise the distress, time and trouble caused by the delays and failures in how it handled her complaint.
37. Within three months of my final decision, the Council will remind relevant planning staff that they should consider the procedural fairness and the ability of third parties to comment when deciding non-material amendment applications, and that they should make a record of that consideration.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. There was fault in how the Council considered a non-material amendment application, but this did not affect the outcome. There was also fault in how the Council responded to Mrs X’s complaint which caused her avoidable distress, time and trouble. The Council agreed to pay Mrs X the financial remedy it has offered and issue a reminder to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman