Summary: Mr Y complains on behalf of Mr X about the Council’s handling of two planning applications and a planning enforcement investigation. We will not investigate concerns about the first planning application because Mr X has previously complained to the Ombudsman about this, and we decided not to investigate as the complaint was late. There is no procedural fault in the other matters complained about, or they caused little or no injustice to Mr X, so we have not investigated them further. The Council’s apology for the fault identified in its handling of Mr Y’s complaint is sufficient and we do not recommend anything further.

The complaint

1. The complainant, who I have called Mr Y, complains on behalf of Mr X about the Council’s handling of two planning applications and an associated planning enforcement investigation. Mr Y also complained about the Council’s handling of his complaints about the matters.
2. Mr Y says Mr X has suffered injustice because of significant harm caused by overlooking and loss of privacy. Mr Y says Mr X will experience ongoing distress, hurt and financial impact from the development.

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The Ombudsman’s role and powers

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 the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained, or the injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended)
5. 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)
6. 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

7. I called Mr Y and invited him to discuss his complaint with me. We had some subsequent correspondence over email.
8. I considered the Ombudsman’s final decision on Mr X’s previous complaint.
9. I made enquiries of the Council and considered its response.
10. I issued a draft decision, inviting comments from Mr Y and the Council. I considered any comments received before making a final decision.

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What I found

Original approval of planning permission

11. Several years ago the Council refused an application seeking planning permission for a new development of residential units near to Mr X’s home. The applicant revised the proposal and resubmitted their application in 2016. Mr X objected to the application, but the Council approved it. He complains the Council did not properly consider the impact the development would have on his privacy.
12. The developer has now completed the work. Mr X says he has had to buy trees to provide additional screening between his home and the new development because the condition attached to the approval, which requires the developer to add screening in the form of vegetation, is not sufficient. He says Mrs X will no longer use rooms at the rear of their property for fear of overlooking and will no longer go into the garden. He believes the new development has reduced the value of their property and would like the Council to apologise and pay him compensation.
13. Mr X complained to the Ombudsman in August 2020 about the Council’s decision to grant planning permission. We decided not to investigate the complaint because Mr X approached us almost four years after the Council’s grant of permission. When making this decision, we noted the considerable time Mr X took in raising the complaint with his MP, and then the Council. However, we decided this did not account for the full period of time between the Council’s decision to grant permission and his complaint to the Ombudsman.
14. Mr X complained, via Mr Y, to the Ombudsman about the same matter again. But we have already decided not to investigate this aspect of his complaint. This was our final decision and therefore we will not consider the matter further.

Non material amendments

15. Section 73 of the Town and Country Planning Act (1990) allows planning applicants the option to submit applications seeking non-material (NMA) or minor-material amendments (MMA) once planning permission has been granted. There is no statutory definition of a non-material or minor-material amendment. However, the government’s ‘Planning Practice Guidance: Flexible Options for Planning Permissions’ says a MMA “… is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved”.
16. Section 96A of the Town and County Planning Act 1990 says the following: ‘In deciding whether a change is non-material, a Local Planning Authority must have regard to the effect of the change, together with previous changes made under this section, on the planning permission as originally granted.’ There are four key tests:

• Whether the proposed change is ‘inconsequential’ in terms of its scale when compared to the original approval. If so, then;
• Would the proposed change result in a detrimental impact either visually or for living conditions?
• Would the interests of a third party who participated in, or were informed of, the original decision be disadvantaged in any way?
• Would the amendment be contrary to any Council policies?

17. Councils are not required to consult neighbouring properties upon receipt of a NMA application.
18. In May 2019 the Council approved an application for a NMA seeking approval for the following:
• Change of external materials
• Addition of apex windows to some properties
• Changes to the first and second floor
• Retention of a back wall in one plot
19. Mr Y complains about the Council’s decision to accept the application as a non-material amendment, rather than a minor-material amendment. He says the incorrect application process was used and as a result the affected residents were not consulted and did not have the opportunity to comment on the amendments. This is because Mr Y says the plans submitted with the NMA also revealed:
• Proposed increase of 32.5 centimetres in the ridge height of seven plots
• The removal of a car parking space previously designated for one of the plots
• Amendment to two balconies, causing further overlooking
20. The officer approved the NMA, citing the following key reasons in their report:
• The proposal seeks to make minor amendments to the scheme, slightly altering the form and scale of the dwellings. This change is minimal and would not cause any material harm to the character or to neighbouring dwellings. The change to scale is negligible and inconsequential to the original permission.
• The proposal includes mainly cosmetic changes, such as alterations to the finishing and addition of new glazing.
• The proposed amendments to the balconies and internal floor space for plots 1-7 are minimal and will not materially change the bulk of the development.
• The proposed ridge heights are different, but the change is negligible.
• The proposed changes to plot 8 are cosmetic and the amendments are minor, maintaining a good level of visual and neighbouring amenity.
• The new parking space for plot 8 is appropriately located and vehicles can access and exit the site in forward gear. The new parking area will not materially increase noise or disturbance above what is already approved.
• Overall the proposal will not introduce any material changes regarding amenity and loss of privacy.
• The Town Council, although not in favour of the original application, did not consider this proposal significantly altered the existing approval.
• The proposal is not contrary to any Council policies.
21. Mr Y complained to the Council. He did not agree with its assessment, and instead suggested the proposal was, at least, a minor-material amendment due to the cumulative impact. Mr Y also pointed out that the Council had failed to notice the removal of a previously agreed parking space at plot 8.
22. In response to Mr Y’s complaint, the Council acknowledged the officer had failed to address the removal of the parking space in their report. The Council said this did not impact on the decision made to approve the NMA, because:
• The overall changes to the parking arrangements for plot 8 formed part of the officer’s assessment. The officer did not consult with Highways because the officer was satisfied the amendment was acceptable.
• The proposed change was inconsequential in terms of scale when compared to the original application. The revised plans show a reduction from 16 to 15 parking spaces. The Council decided this was not unreasonable.
• If occupiers require further parking, they will need to park elsewhere or use alternative modes of transport. The merits of the car parking designation were assessed in the original application.
23. I appreciate Mr Y feels strongly that nearby residents should have been consulted about the proposed amendments. I understand he feels that some of the amendments were significant in nature, and therefore should have been subject to consultation and a more thorough decision-making process. For example, he says the changes to ridge height are not negligible. However, it is not for the Ombudsman to decide whether an application is material or not in nature. Instead, our role is to consider how the Council reached its decision that the amendments were ‘non-material’ and whether it applied the relevant ‘tests’ when making its decision.
24. I am satisfied, based on the information seen, that the Council gave a reasoned justification for processing the application as a non-material amendment. The Council has accepted the officer failed to include analysis about the loss of one parking space, however it has provided a reasonable explanation in retrospect about these changes. There is no evidence of procedural fault by the Council, and I therefore have no grounds to question the merits of the Council’s decision. For this reason, I do not uphold this part of Mr Y’s complaint.

Planning enforcement: investigation one

25. In April 2019 Mr Y reported several breaches of planning control to the Council. These are summarised as:
1. Amendment to the footprint of the building containing plots 1-7
2. Introduction of steps on the west elevation of plots 1-7
3. Changes to the elevations of plot 8
26. Due to concerns about the level of impact caused by the reported breaches, a local Councillor requested the matter to be considered by the Council’s Planning Committee. Before the Committee considered the reports, the Enforcement Officer investigated the alleged breaches and wrote a report in October 2019 outlining their findings.
27. The officer identified breaches in planning control as the eight new homes had not been constructed in accordance with the approved plans. The officer found the building had moved 1.2 metres to the south. The developer had also introduced steps, instead of the approved ramp, to the front elevation.
28. The officer also found that the eastern elevation of plot 8 was not built in accordance with the approved plans.
29. The report summarised the officer’s conclusion that, “the breaches identified in this case do not result in material harm to the surrounding environment… they also do not introduce material harm to the occupiers of neighbour properties due to the limited extent of the change.” This is because:
• Views from balconies and windows will not change to any meaningful extent, including the outlook to Mr X’s property
• The developer has constructed the end side elevations to the front in a solid wall, rather than the approved glazing. Therefore, the outlook to neighbouring properties has been reduced.
• The repositioning of the block would not increase the extent of overshadowing or overbearing due to the limited scale of the change
• The introduction of the steps causes no material harm to the neighbours or the appearance of the overall development.
30. The Council recommended, “…it is not expedient to formally pursue this matter and that no action is taken in respect of the development in its current form”
31. The Council’s Committee considered the alleged breach, alongside the officer’s report with plans and photographs of the site showing the change in footprint.
32. The minutes of the meeting show the Committee agreed that it was not expedient to pursue formal enforcement action against the breaches identified.
33. The Ombudsman considers complaints about fault causing injustice. We may not investigate all or part of a complaint if we feel the issue complained about has not caused significant injustice to the complainant.
34. After considering the information available to me, it is my view that Mr X has not suffered a significant injustice from some of the breaches complained about. For example, changes to plot 8 would not affect his outlook or impact on his privacy. Furthermore, the addition of steps to the doors has no impact on Mr X. However, I accept that Mr X has some perceived injustice from the changes to plots 1-7, although the Council considers the impact is minimal.
35. The Council’s investigation of the breaches was in line with its Enforcement Plan. I find no evidence of procedural fault, and so I have no grounds to challenge the merits of the Council’s decision not to pursue enforcement action.
36. Although the investigation did not conclude within the suggested timescale of 16 weeks, the Council explained this was due to conducting several site visits, arranging surveys and scheduling a Committee meeting. I am satisfied the case was not subject to significant and avoidable delay causing significant injustice to Mr Y or Mr X.

Planning enforcement: investigations two, three and four

37. Mr Y also reported alleged breaches of planning control about the following three matters, which the Council logged as separate enforcement cases:
• a change in one of the car parking spaces and the alleged encroachment of one of the plots onto private land. The Council considered the report but decided there was no material harm caused by the movement of a boundary fence and that land ownership disputes were outside of its remit.
• a change in the elevation of one plot. The Council inspected the area in question and found the materials used to construct the balcony differed from the approved plans. The Council also found some changes in the size and construction of the balcony, but decided the breach was minor and did not cause any material harm or additional overlooking.
• a change to the access way to the gate, which is narrower than on the approved plans. Mr Y also reported a breach regarding the gradient of the access road. The Council inspected the access point and found it to be 200mm narrower than approved. The Council said the reduction in width was due to the positioning of the hinges on the access gate to allow for electronic opening and closure. In its view, this change did not result in any planning harm. The Council found no evidence of a breach regarding the gradients.
38. In my view, and based on the evidence seen, I am not persuaded that Mr X has been personally affected by these reported breaches. For this reason, I propose not to investigate these points further.
39. Furthermore, the Ombudsman cannot investigate matters concerning the illegal encroachment of land because this would be a private civil matter for the affected parties to pursue through the appropriate legal channels.

Complaint handling

40. Mr Y complains about the Council’s handling of his complaints. He says he made three formal complaints, but only one went through the full corporate complaints process. Mr Y says the Council combined two of his complaints, and in doing so, did not provide a response at stage one of the complaints process.
41. I note Mr Y’s complaints were submitted in close succession; 6 November 2019, 15 December 2019 and 13 January 2020.
42. In response to Mr Y’s concerns about the process, the Council explained it decided to merge the three complaints under one reference because it received a significant amount of correspondence on the subject. The Council accepts this is a deviation from its usual complaints process. The Council also acknowledges the officer allocated to respond to the complaint was away when the stage one response was issued, and in their absence the Council failed to notice the issues raised in the second and third complaint were not included.
43. The Council has apologised for this fault.
44. In my view, I agree it was pragmatic for the Council to merge the complaints for ease of reference due to their related nature. However, it should have clearly explained this to Mr Y and ensured that it responded to all three issues. It did not, and this is fault.
45. However, the Council did address all the issues raised in its second and final complaint response. Mr Y has therefore received a full response to his complaint and in my view has not experienced a level of injustice which requires more than the apology already provided by the Council.

Final decision

46. I have completed my investigation with a finding of no fault for the reasons explained in this final decision statement.

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Investigator's decision on behalf of the Ombudsman