Summary: Mr B says the Council failed to tell him about receipt of a nonmaterial amendment, wrongly accepted the changes as nonmaterial amendments, delayed placing the nonmaterial amendment on the Council’s website and failed to respond to his complaint properly. There is no fault in how the Council dealt with the complaint. The Council failed to tell Mr B about receipt of the nonmaterial amendment which denied him an opportunity to comment and it delayed putting information on its website and on the planning file. Those faults did not affect the decision on the nonmaterial amendment. An apology, creation of a process to ensure communication between the Council’s enforcement and planning departments and payment to Mr B is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about the way the Council considered an application for a nonmaterial amendment to a planning permission. Mr B complained the Council:
• failed to tell him it had accepted a nonmaterial amendment from his neighbour even though he had raised concerns with the enforcement department and been told he would be kept updated;
• should not have accepted the changes as a nonmaterial amendment as they are significant and affect his amenity; and
• delayed placing the nonmaterial amendment documentation on the Council’s website and in the planning file.
2. Mr B also complained about how the Council handled his complaint and how it dealt with a Freedom of Information Act request.
3. Mr B says the Council’s failures have resulted in overlooking of his conservatory.

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What I have investigated

4. I have investigated how the Council considered the nonmaterial amendment application and how it dealt with Mr B’s complaint. The final section of this statement contains my reason for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

5. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. 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

8. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

10. The Government has issued guidance on dealing with applications for nonmaterial amendments to planning permission. (the guidance). The guidance says 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 the amendment sought is non-material in order to grant an application under section 96A of the Town and Country Planning Act 1990.
11. The guidance says an application to make a non-material amendment is not an application for planning permission. As a result, the 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 on whether and how they choose to inform other interested parties or seek their views.
12. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out what are permitted development rights in schedule 2. This is where certain types of work do not need planning permission.

What happened

13. The Council granted planning permission for an extension to Mr B’s neighbour’s property. The planning application did not propose any windows or doors on the side elevation facing Mr B’s property. Mr B did not object.
14. Mr B contacted the Council when his neighbour began to build the side elevation as it showed a door and window opening at ground floor level. A Council enforcement officer visited the site. The Council’s enforcement officer told Mr B his neighbour had said they would submit a planning application for the revisions. The Council’s enforcement officer told Mr B if and when that application was received he would be notified. The Council’s enforcement officer told Mr B his neighbour retained permitted development rights for the property which meant he could insert windows and doors in the ground floor side elevation once the extension was complete without requiring planning permission.
15. Mr B’s neighbour put in an application for a nonmaterial amendment for the door and window on the side elevation. The Council accepted the application and granted permission for the nonmaterial amendment. Mr B did not know about that application or the decision on it. He therefore contacted the enforcement officer to find out what was happening. The enforcement officer told Mr B there was no record of an application as at that point it was not available on the planning file.
16. Mr B subsequently identified receipt of the nonmaterial amendment application and grant of permission. Mr B raised concerns about that decision.

Analysis

17. Mr B says the Council failed to tell him it had accepted a nonmaterial amendment from his neighbour. Mr B says this prevented him commenting on the application. The Council is right to point out there is no statutory requirement for it to consult on applications for nonmaterial amendments. However, I refer to Government guidance in paragraph 11. As that guidance says, while it is not a requirement for the Council to consult it is expected to use its discretion on whether and how to inform interested parties. In this case the Council knew Mr B had raised concerns about the impact the changes would have on his amenity as he had raised the issue with the Council’s enforcement team. In those circumstances I would have expected the Council to notify Mr B when it received the application for a nonmaterial amendment. Failure to do so is therefore fault.
18. I consider the issue here is the lack of communication between the Council’s planning and enforcement teams. Due to that lack of communication the planning officer considering the nonmaterial amendment did not know an enforcement case had been opened or that Mr B had raised concerns about the impact of the proposed changes. It is clear from Mr B’s correspondence with the Council if he had known about the nonmaterial amendment he would have submitted comments. Failure to notify him therefore prevented him doing so. That is a serious injustice. As part of the remedy for that I recommended the Council put in place a procedure to ensure communication between planning and enforcement teams when the Council receives an application following enforcement involvement. The Council should also remind officers pf the need, in those cases, to tell the person that raised the issue with the enforcement team about the developments in the case, including receipt of any applications. The Council has agreed to my recommendations.
19. Mr B says the Council should not have accepted the changes as a nonmaterial amendment. Mr B says this is because his own property sits at a higher level than his neighbour’s property and the door and window will overlook his conservatory. As I said in paragraph 10, there is no definition of what constitutes a nonmaterial amendment. What this means is planning officers have to exercise their judgement as to what is nonmaterial in each case. I am aware Mr B has put forward evidence from other councils which provide guidance on what is accepted as a nonmaterial amendment. Mr B notes several councils exclude the insertion of windows from what is accepted as a nonmaterial amendment. While I understand Mr B’s concern, guidance adopted by other councils is not relevant for the Council complained of in this case, which does not have any guidance on what cannot be accepted as a nonmaterial amendment. That is not fault.
20. The evidence I have seen satisfies me the Council accepted the proposal as a nonmaterial amendment as the proposed windows are at ground floor level. I have seen nothing in the documentary evidence though to suggest the planning officer visited the site, although the same planning officer assessed the previous planning application for the extension on the site. Nor does the report for the nonmaterial amendment refer to the alleged difference in levels between the two sites. That is information which might have been highlighted to the planning officer had the Council told Mr B about receipt of the nonmaterial amendment application. However, I consider it unlikely, on the balance of probability, the outcome for Mr B would have been different if he had an opportunity to comment on the application and raised the issue of the difference in levels. That is because under permitted development rights Mr B’s neighbour could have inserted a door and windows at ground floor level in the same position they are now currently in without the need to seek planning permission once he completed the extension. That is a relevant consideration for the Council to have taken into account when considering whether to accept the proposed changes as a nonmaterial amendment. Photographs Mr B provided of his neighbour’s extension also show there is a fence partially obscuring the newly created window. I therefore consider Mr B’s injustice is limited to his lost opportunity to comment and the time and trouble he had to go to pursuing the complaint. As remedy for that I recommend the Council apologise to Mr B and pay him £250.
21. In reaching the view that the outcome would not have been different if Mr B had an opportunity to comment, I am aware Mr B says the estate he lives on is subject to a covenant which requires directors to approve any changes to properties. Mr B therefore says permitted development rights do not apply on his estate. The existence of a covenant though does not override permitted development rights. A covenant is a private matter and is not something the Council could consider when determining a planning application or an application for a nonmaterial amendment. A covenant can only be enforced by private action through the courts. So, whether a covenant exists preventing development of houses on the estate without permission does not mean permitted development rights do not apply.
22. Mr B says the Council delayed placing the nonmaterial amendment documentation on its website and in the planning file. The Council accepts it delayed placing the officer report and decision notice on its website. Mr B considers this was deliberate to prevent him commenting. While I understand why he would take that view I have seen nothing to suggest this was anything other than a clerical error. I consider an apology a satisfactory remedy for this part of the complaint.
23. Mr B says the Council blocked his complaint about the nonmaterial amendment decision. Having considered the documentary evidence I am satisfied the Council responded to Mr B’s complaint at each stage of the complaints procedure. I appreciate Mr B is unhappy with the Council’s responses. However, I have seen no evidence to suggest the Council blocked Mr B’s complaint or that it failed to consider his complaint properly. In particular, I note that the second and third stage complaint responses to Mr B were comprehensive. I therefore have no grounds to criticise the Council.

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Agreed action

24. Within one month of my decision the Council should:
• apologise to Mr B for not notifying him of receipt of the nonmaterial amendment and for the delay putting the nonmaterial amendment documentation on the Council’s website and planning file; and
• pay Mr B £250 to reflect his time and trouble and frustration.
25. Within two months of my decision the Council should put in place a process to ensure communication between its planning and enforcement departments when an enforcement case is opened which results in submission of an application. This should also cover who is responsible for notifying those that have complained about enforcement matters which have resulted in the submission of the application.

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Final decision

26. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

27. I have not investigated Mr B’s concerns about the delay responding to his Freedom of Information Act request. Concerns about how the Council has dealt with a Freedom of Information Act request are matters for the Information Commissioner, rather than the Ombudsman. Mr B has already exercised his right to complain to the Information Commissioner. It is therefore not appropriate for the Ombudsman to comment on this part of the complaint.

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Investigator's decision on behalf of the Ombudsman