Summary: Mr X complained about the Council’s enforcement action against a neighbouring development and its consideration of a variation to the approved plans in response to planning breaches. The Council was not at fault. It investigated the planning breach and properly considered a new planning application to address the issues.

The complaint

1. Mr X complained about the Council’s enforcement action against a neighbouring development and its consideration of a variation to the approved plans in response to planning breaches. He says the Council’s failings have caused him and his wife distress and resulted in damage to his property. Mr X wants the Council to pay compensation for the impact on him and his wife.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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

5. Part of Mr X’s complaint is late because it concerns council actions that happened more than 12 months before he complained to us. I have not investigated events before October 2023. It was open to Mr X to complain to us sooner about events before that date and I consider it was reasonable for him to have done so. Also I do not consider further investigation would lead to a worthwhile outcome.

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The Law

Planning permission

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

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

10. 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.

11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Site visits and officer reports

12. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using arial photographs and other tools such as Google Streetview.
13. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
14. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Non-Material amendments

15. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
16. 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.

17. 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.
18. Councils may also decide that very minor changes are so insignificant, they require no procedural action.

Enforcement

19. 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.
20. 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.
21. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues. Councils can decide it is not ‘expedient’, meaning not appropriate in the circumstances, to take enforcement action.

Background before October 2023

22. The Council granted Mr X’s neighbour planning permission for an extension. The permission came with a condition to finish the extension in matching materials. Shortly after Mr X’s neighbour started construction Mr X reported a breach of planning control. He said his neighbour was not using matching materials and had put garden steps in a different location. The Council investigated the location of the garden steps and decided it was not expedient to take enforcement action.
23. Mr X’s neighbour later submitted a variation to the approved plans to increase the size of the extension. Mr X continued to complain about several aspects of the development. The Council did not uphold Mr X’s complaint and approved the variations.

What happened after October 2023

24. The following is not intended to be a full account of everything that happened in this period, nor does it refer to all the records I have considered. It is a summary of the key events and facts relevant to this complaint.
25. Mr X made a second enforcement complaint following the Council’s approval of the planning variations. He said the external materials still did not match. The Council visited the site and identified a planning breach. It agreed the extension was not finished in matching materials.
26. The Council invited Mr X’s neighbour to make a retrospective planning application. Mr X’s neighbour submitted the application which Mr X commented on. Mr X said the changes were not in keeping with the local area. He said the finish would impact the price of his house and the proposed cladding would impact his ability to protect and repair his home from water damage. During the process Mr X’s neighbour submitted amended plans which removed old references to matching materials and added a separate list of materials to be used.
27. The Council considered Mr X’s comments and approved the application. It said other properties in the area had similar finishes and Mr X’s ability to repair his home was not a planning consideration.
28. Mr X complained to the Council. He said it had failed to investigate his reported breaches of planning permission and its officer had not carried out a site visit. He said the Council had referred to the wrong plans when approving the retrospective application. He added he had not had an opportunity to comment on the amended plans before the Council approved the application.
29. In its complaint response the Council accepted it had not investigated Mr X’s original enforcement complaint about the finish to the extension and had only investigated the garden steps. It said it had since properly investigated the issue, and the retrospective application meant there was no longer a planning breach. It also accepted some minor errors with the way it had handled the retrospective application, but said these had not impacted its decision making. It said it was clear which construction materials it was approving. It said the changes to the plans were minor and it was entitled not to seek further comments on them. It added its officer had considered Mr X’s comments. Mr X complained to the Ombudsman.

My findings

30. The Council can only take material planning considerations into account when deciding a planning application or whether to take enforcement action over a planning breach. Mr X has complained about several issues which are not material planning considerations, including damage to his property. These are civil matters between Mr X and his neighbour. The Council was under no duty to act in response to these complaints. The Council was not at fault.
31. Mr X complained the Council failed to take enforcement action against his neighbour. Following Mr X's second enforcement complaint the Council carried out a site visit and identified breaches in its planning permission. It invited Mr X’s neighbour to submit a retrospective planning application. The Ombudsman cannot question a council’s decision if it is made without fault. The Council followed the proper procedures. It was entitled to invite the new planning application, so I cannot criticise its decision to do so. The Council was not at fault.
32. The Council then considered the new application and Mr X’s comments. Mr X says there were several errors in the planning officer’s report, including references to the wrong plans. While there were errors in the planning officer's report, these did not impact the Council’s decision making. The report shows the Council understood the proposed changes and considered Mr X’s concerns and the material planning considerations before approving the application. The Council was not at faut.
33. During the application Mr X’s neighbour submitted slightly amended plans. The Council considered the changes to the plans were not significant and decided not to share them for further comments. This is something the Council was entitled to do. The changes were not significant and did not alter the basis of the Council’s planning consideration. The Council’s report and decision show it fully understood the nature of the plans and Mr X’s comments. The Council was not at fault.

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Decision

34. I find no fault and so have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman