The Ombudsman's final decision:
Summary: Mr C complains about the Council’s decision to allow significant changes to an approved landscaping scheme as a non-material amendment to a planning permission. Mr C says he lost both his opportunity to make representations and expected landscaping to a development near his property. The Ombudsman has found no evidence of fault by the Council.
- The complainant, whom I shall refer to as Mr C, complains about the Council’s decision to allow significant changes to an approved landscaping scheme as a non-material amendment to a planning permission. Mr C says that because of the Council’s fault he lost his opportunity to make representations and has lost expected landscaping to a development near his property.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I read the papers provided by Mr C’s representative and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C’s representative. I have explained my draft decision to Mr C’s representative and the Council and considered the comments received before reaching my final decision.
What I found
- The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
- Planning permission may be granted subject to conditions relating to the development and use of land and/or a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
- Where planning permission is granted, it is sometimes necessary to make changes. The planning authority may grant a non-material amendment application and amend the original approval without the need to begin the planning process again. Councils may also decide that some very minor changes are ‘de minimis’ and can be accepted without requiring a non-material amendment.
- The Council’s Planning Committee received a planning application in 2014 for a flood attenuation pond on land adjoining Mr C’s property as part of works to manage local flood risk. Mr C had no objection to the planning application and was involved in discussions about landscaping proposals that formed part of the application.
- The case officer’s report to Committee concentrates on the need to reduce flooding and mitigate the impacts of flooding in the local area and whether the scheme would deliver this. The reference to visual impact states:
“In terms of visual impact the proposed attenuation pond would be dry above the through-flow channel for the majority of the time not in use, and so the visual impact would be limited to the low earth bund surrounding the pond. This would be grassed over and is not considered to have a significant impact on the visual amenity of the site or its surroundings”.
- The Council approved the application subject to conditions in 2015.
- The Council received an application in 2016 to make some changes to the above permission. The changes related to conditions of the planning permission. The first related to the condition requiring works to be in accordance with the approved plans and drawings. The applicant sought to change the landscaping plan by excluding an area of tree and shrub planting and removing wildflower planting. The second condition related to maintaining existing shrubs, trees and hedgerows on and bordering the site during the works and for 5 years thereafter. The applicant provided details of proposed works to some trees, shrubs and hedgerows on site. The Council treated this application as a non-material amendment and approved it at officer level.
- The Council took the view the proposed planting as part of the landscaping plan was not fundamental to the original scheme being acceptable and did not run to the heart of the permission. The Council highlights the planting itself was not specifically conditioned and as such was not considered necessary to make the development acceptable. The Council also notes the reason for the original planning application remains the same.
The Council accepts the removal of the tree planting allows more open views of the pond, particularly from the public highway, in an area that had existing open views and little significant tree cover. The Council considered this acceptable in planning terms. The proposed planting may have been an enhancement to the existing landscape but was not considered necessary for the original proposal to be acceptable.
- I am satisfied the Council has provided a cogent argument for treating the application as a non-material amendment. This was a decision the Council was entitled to reach. There is no requirement for such an application to be decided by the Council’s Planning Committee.
- The Council says it does not normally consult the public on a non-material amendment applications and would generally only do so where comments had been received on the original application which related to the amendment being sought. Although Mr C was involved in some initial discussions at an early stage of formulating the proposals he did not make any formal representations about the original planning application which was the subject of the subsequent amendment.
- On balance, although it may have been good practice for the Council to advise Mr C of the subsequent application I do not consider failure to do so constitutes fault.
- I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman