Summary: There was no fault by the Council in a complaint that alleged it approved a non-material amendment planning application without considering the development’s impact on the complainant’s amenity.

The complaint

1. Ms X complains the Council approved a non-material amendment planning application without considering the development’s impact on her amenity. The development involved relocation of a bin store in a major development.
2. Ms X says she had no opportunity to comment on the development. She is faced with a view of a bin store whereas her previous outlook was over a car park. Ms X says the bin store is 14 times the size and located at half the distance set out in EU guidance on the location of waste containers.
3. Ms X is concerned about the health and safety risks posed by the bin store. She says the location of the bin store has had a detrimental impact on the value of her home.

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The Ombudsman’s role and powers

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’. 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)
5. 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

6. I examined the complaint and background information provided by Ms X. I consulted government guidance on non-material amendment planning applications. I discussed matters with Ms X by telephone.
7. I sent a draft decision statement to Ms X and the Council. I considered a letter Ms X sent to the Secretary of State for Housing, Communities and Local Government in response to my draft decision statement.

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What I found

Law and guidance on non-material amendment planning applications

8. When planning permission is granted, development must take place in accordance with the permission and conditions attached to it, and with any associated legal agreements.
9. New issues may arise after planning permission has been granted, which require modification of the approved proposals. Where these modifications are fundamental or substantial, a new planning application under section 70 of the Town and Country Planning Act 1990 will need to be submitted. Where less substantial changes are proposed, there are the following options for amending a proposal that has planning permission:
• Making a non-material amendment
• Amending the conditions attached to the planning permission, including seeking to make minor material amendments.
10. There is no statutory definition of ‘non-material’. This is because it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another. The local planning authority must be satisfied that the amendment sought is non-material in order to grant an application under section 96A of the Town and Country Planning Act 1990.
11. As an application to make a non-material amendment is not an application for planning permission, the existing Town and Country Planning (Development Management Procedure) (England) Order 2015 provisions relating to statutory consultation and publicity do not apply. Therefore, local planning authorities have discretion in whether and how they choose to inform other interested parties or seek their views.
12. As the changes sought will be non-material, consultation or publicity are unlikely to be to be necessary, and there are unlikely to be effects which would need to be addressed under the Environmental Impact Assessment Regulations 2011.

Background to the complaint

13. The Council first granted planning permission for a major development in 2007. The planning permission was implemented but the developer made changes to the approved permission which required the consent of the Council. The developer therefore submitted a proposal for a non-material amendment in 2016.
14. The Council decided the changes were non-material and so determined the application as a non-material amendment application. It did not consult the public.
15. The planning officer’s report set out the reason why the Council decided the proposal amounted to a non-material amendment. It noted section 96A (2) of the Town and Country Planning Act 1990 states ‘in deciding whether a change is material, a local planning authority must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission as originally granted.’
16. The planning officer said the main differences between the proposal and the previously approved planning permission related to the car parking and refuse areas to the east of the site. The officer said the refuse areas had been rearranged to allow for easier collection of waste. The changes did not alter the approved parking or refuse provision but merely rearranged it within the site.
17. The officer said the proposed changes would not materially affect the appearance or function of the development as originally approved. Overall, the officer said the changes were acceptable and would have a neutral impact on the character and appearance of the conservation area, the setting of nearby listed buildings, highway safety and convenience, and the amenity of neighbouring occupiers.
18. Ms X recently found out about the relocation of the bin store when the store was being built. She then made a complaint to the Council and then the Ombudsman.

Finding

19. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
20. Here, I do not find fault in the way the Council reached its decision on the non-material amendment application. The papers show the Council considered whether the changes were substantial so as to require a full planning application or minor so as to amount to a non-material amendment.
21. Had Ms X been consulted I accept she would have made representations against the relocation of the bin store. However, as the Council was not statutorily required to consult on a non-material amendment application, I do not find fault because she was not consulted.
22. I note Ms X’s concerns about the environmental impact of the bin store in its present location. But the Council was not required to consider the environmental impacts she describes because the application was dealt with as a non-material amendment application.

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Final decision

23. I have closed this complaint because I did not find fault by the Council in the matters raised by Ms X.

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Investigator's decision on behalf of the Ombudsman