Summary: Mr B complains about the way the Council managed changes to a planning application for a neighbouring property. He says the Council has allowed his neighbour to build an extension with three windows on the side elevation, an extended balcony and overhanging drainage. The Ombudsman finds fault in the Council’s procedures on consultation and in its design guidance. Also, in not updating Mr B about its enforcement investigation.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council approved an application that did not comply with its design guidance. He says the Council has not taken enforcement action about the size of the extension, guttering that overhangs his garden, or an extended balcony. He also says the Council did not consult him when it approved changes to the application, including three windows on the side elevation.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

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How I considered this complaint

5. I considered the information Mr B provided and spoke to him about the complaint. I then made enquires of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.

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What I found

Law, Guidance and Local Policy

6. Planning permission is required for the development of land. Councils are required to give publicity to planning applications. Councils must make all decisions on planning applications in accordance with the development plan unless material considerations indicate otherwise.
7. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.
8. The Council’s design guidance says, where feasible, developers should leave a one metre gap between a side extension and the boundary to prevent a terracing effect and retain rear access. It says first-floor windows on the side elevation should be at a high level, obscure glazed and non-opening.
9. Where planning permission is granted, it is sometimes necessary to make changes. The planning authority may grant such an application and amend the original approval without the need to begin the planning process again, providing:
• it considers the procedural fairness of doing so
• the nature of the application remains the same.
10. Government guidance says it is for the council to decide whether further publicity is necessary in the interests of fairness. In doing so it should consider whether, without re-consultation, any of those who were entitled to be consulted, would be deprived of the opportunity to make representations they may have wanted to make.
11. Further government guidance says it is unlikely further publicity will be needed when the changes are non-material. There is no definition of a non-material amendment.
12. The Ombudsman has considered recent case law about when councils should re-consult. Our position is that, as the question is one of procedural fairness, there should be evidence councils have considered whether to re-consult in each case. Even where the amendment is non-material, there may be a common law duty to re-consult where it is fair in the circumstances of the case.
13. The Council’s says its procedure is not to consult on non-material amendment applications. It says this is in line with government guidance.
14. 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. Government guidance says:
• “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

Background

15. In late 2018 the Council approved an application for Mr B’s neighbour to build and extension at the side of his home. The extension was two storeys, had an obscured bathroom window on the first-floor side elevation and a Juliet balcony to the rear.
16. The Council publicised the application in line with its normal procedures. Mr B did not comment on the application as, at that time, he did not have any concerns.
17. The Council approved the application. Its report noted the extension was set back and therefore subservient to the existing house. It found the extension did not cause any unacceptable impact to the amenity of any neighbours.
18. In early 2019, Mr B raised a planning enforcement concern with the Council. He said the neighbour wanted to install two ground floor windows in the side elevation. He said the extension was right up to the boundary and would overhang his property.
19. The Council visited the property and measured the extension. It found the extension was built 10cm larger than the approved plans. It said the difference was minor and it was not expedient for it to take enforcement action. It said any encroachment onto Mr B’s property was a private matter.
20. The neighbour made a non-material amendment application for three ground floor windows on the side elevation. It said the windows would be screened from the neighbour by a fence. The Council approved the application. In line with its procedure, it did not re-publicise the application so Mr B could not provide any comments or objections.
21. Mr B complained about the decision to approve the application. He said the windows were higher than the fence and would look straight into his living room. The Council responded that a person standing the same position as the windows before the extension was built would have the same view. Therefore, there was no increase in overlooking. It noted the windows would also be allowed under permitted development rights.
22. In mid-2019 Mr B wrote to his local councillor. In his letter he said the neighbour had also installed a platform balcony rather than a Juliet balcony. He said the Council’s design guidance said there should be a one metre gap to the boundary to retain side access and first floor windows should be obscured and fixed closed. He said the bathroom window in his neighbour’s extension opened. The councillor forwarded the letter to be responded to as a formal complaint.
23. In its response to Mr B’s complaint it said the window, while not matching the guidance word for word, was acceptable in this case. It said officers could use judgement about side access and in this case, it was, again, acceptable.
24. The Council also carried out a further visit to the site. It found the balcony was a breach as it extended further out than the Juliet balcony on the approved plan. However, it did not consider it was expedient to take enforcement action as it was only by a small amount and did not lead to any overlooking that would not have been the case with a Juliet balcony. The Council did not inform Mr B of the outcome of its enforcement investigation.
25. Mr B made a further complaint. The Council responded in late December 2019. It did not uphold the complaint in terms of the planning matters but apologised that it had not updated Mr B about the outcome of the planning enforcement investigation.

Findings

26. Mr B complaint involves several different issues around:
• The original planning application
• The non-material amendment application
• The planning enforcement investigations

Original planning application

27. Mr B is concerned the Council allowed an extension that is not in line with its design guidance. It does not have a one metre gap between the side wall and the boundary, and the first-floor window opens.
28. The Council says the design guidance is only a guide and not part of its local plan. It is for officers to make decisions with the guidance in mind. The Council does not consider the neighbour’s extension conflicts with the guidance. It says the extension is subservient and cannot create a terracing effect as Mr B’s house is set back. It says permitted development rights allow a one storey extension up to the boundary so requiring a one metre side access is not within planning control.
29. I accept the Council’s point about terracing and permitted development rights. However, if that is the Council’s position, it raises the question of why it has a clear section in its design guidance about leaving a one metre gap to retain rear access. It must have included this for a reason.
30. The application was for full planning permission rather than a permitted development. Therefore, the contents of the design guidance were relevant, including the part about retaining rear access. I accept this is only guidance and the officer can decide based on the overall nature of the development. However, I find fault in the Council not giving any rationale in its report for why it considered the loss of side access was acceptable.
31. I do not find the fault caused a significant injustice to Mr B. The loss of side access does not affect him in any direct way. It affects him indirectly, in that not leaving a one metre gap means the guttering now overhangs his property. However, the purpose of the sections in the design guidance are to prevent loss of access and terracing, not to prevent overhanging. Any encroachment across the boundary is a private matter between Mr B and his neighbour.
32. I do, however, recommend the Council review its design guidance on retaining rear access and update this if it considers necessary. There is a conflict between what it said in its response to me and what its design guidance says. If the Council’s position is that, due to permitted development rights, it can never require a developer to retain rear access, then its design guidance may give an inaccurate impression.
33. I also find fault in respect of the opening window. I can see it is only a small panel at the top of the window that opens. However, the design guidance is clear that first-floor side windows should be non-opening. There is no record in the Council’s report that it considered whether the opening window was acceptable and if so why.
34. It may not have been clear from the approved plan that the window would open. If so, and the Council only approved permission for a non-opening window, then it would be a planning enforcement matter. However, the Council has not considered this from an enforcement point of view and says it considers the window is acceptable. This indicates it considers it did approve permission for the window as it is, and therefore is an issue with the planning application.
35. Again, I do not find this caused Mr B a significant injustice. He has provided photographs that show the possibility of some overlooking into a corner of his bedroom. However, he says he has not had any problems with overlooking.

Non-material amendment application

36. I find fault in the Council not considering whether to publicise the non-material amendment application to Mr B. I also find fault in the Council’s policy not to consult or publicise such applications.
37. The Council says it does not consult on non-material amendments in line with government guidance. I accept the guidance says it will rarely need to consult when the amendment is not material. Also, that it is at the Council’s discretion whether to consult. However, government guidance also says it needs to decide whether to consult in the interests of fairness. This, together with relevant case law, means the Council needs to at least consider whether there is a reason to publicise or consult in each case and record its reasons. In doing so it needs to consider factors such as whether the person it might consult would want to know or has an expectation of being consulted.
38. The Council’s response suggests it has a blanket procedure not to consult. This is fault. I recommend the Council review and update its procedures to ensure it considers whether it is necessary to publicise/consult in each case and records its reasons.
39. There is no evidence the Council considered whether to publicise the non-material amendment to Mr B. Again, this is fault as it should at least consider this in each case.
40. I cannot say what decision the Council would have reached had it properly considered whether to consult Mr B. The government guidance is clear that it is unlikely a need to consult will arise. One reason the Council gives for not doing so is that Mr B did not object to the first application. However, the neighbour only made the non-material amendment application on the back of an enforcement complaint from Mr B, which suggests he would have wanted the opportunity to comment.
41. In any case it would have been the Council’s decision and I could not criticise that decision unless there was evidence of fault in how it was made. Even if Mr B did comment on the application, it is unlikely to have changed the outcome for the reasons the Council gave Mr B in its response to his complaint. Therefore, the injustice to Mr B is very limited.

Planning enforcement investigations

42. I do not find fault in the outcome of the Council’s enforcement investigations. The Council is entitled to decide whether it is expedient to take enforcement action against a breach. I cannot question the merits of that decision unless there is evidence of fault in how it went about making the decision.
43. The Council identified two breaches of planning control. On each occasion it visited the site, took photographs, and has clearly explained why it considered the impact was minimal and it was not expedient to act. I therefore cannot find fault.
44. I find fault in the Council not giving Mr B an outcome to the second enforcement investigation between July 2019 and December 2019. Mr B continued to raise complaints during this time. He may have raised those complaints despite the outcome of the enforcement investigation. However, had he known the outcome it is likely to have avoided some unnecessary time and trouble in chasing for the Council to act on the issue of the balcony. I therefore recommend the Council pay Mr B £100 to acknowledge the fault and the avoidable time and trouble this caused.

Agreed action

45. The Council has agreed to, within a month of this decision:
• Apologise to Mr B for not considering whether to allow him an opportunity to comment on the non-material amendment application and for not updating him on the outcome of the outcome of the second enforcement investigation
• Pay Mr B £100 for time and trouble
46. The Council has also agreed to, within three months of this decision:
• Review its design guidance on retaining rear access and update this if it considers necessary
• Review its procedures on non-material amendment applications so that in each case it considers whether it is necessary to publicise or consult interested parties and record the reasons for its decision

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Final decision

47. The Council is at fault in its procedures on consultation and its design guidance. Also, in not updating Mr B about its enforcement investigation.

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Investigator's decision on behalf of the Ombudsman