Summary: Mr X complained about the Council’s decision to approve a planning application to amend an approved plan. The Council’s decision to allow an amended plan has been superseded by a more recent decision. We ended our investigation as it is unlikely to result in a finding of fault, or of a significant injustice to Mr X.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application to amend an approved plan. Mr X said the Council mishandled this application because:
• It treated the application as a minor amendment:
• It did not require elevation plans of adjacent buildings;
• It approved inaccurate plans;
• The development as built does not match approved plans; and
• It approved a development that was overbearing, of poor construction and which adversely affected his amenities.

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The Ombudsman’s role and powers

2. We may 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)
3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
8. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
12. If the council decides the changes are ‘material’, it may require that the whole process begins again with a fresh application. However, if the changes are considered ‘non-material’ the council may allow changes without re-starting the process.
13. The courts have made it clear that, the fact there was a misrepresentation by a planning applicant or an error on an application plan, is not necessarily a material planning consideration. Where a discrepancy in a plan has not been noticed, the Ombudsman will only criticise a council if the discrepancy would have:
• been obvious to any reasonable planning officer; and
• been material to its consideration (i.e., it made a difference to the outcome).

What happened

14. A few years ago, Mr X’s neighbour got planning permission to carry out development works, including conversion of a large flat into two separate flats.
15. A year later, the neighbour sought permission to vary the approved plans. The changes mostly related to the internal layout of the development. The Council approved this application, and it is this decision that Mr X’s complaint focuses on.
16. Since Mr X complained to the Ombudsman, the Council has considered and approved a further planning application to amend plans it had already approved. This application was for development that was largely complete, so it was a ‘retrospective’ application. This meant that when it considered the application, the Council could consider the development as it had been constructed.
17. The Council’s website included the decision notice, a case officer’s report and the application plans. The case officer report included:
• A description of the proposal and site;
• A summary of relevant planning history, including the original approval;
• Comments from neighbours and other consultees;
• A summary of planning policy and guidance considered relevant;
• An appraisal of the main planning considerations, including impact on amenity and the character of the area; and
• The officer’s recommendation to approve the application, subject to planning conditions.
18. Mr X complained to the Council about the development and the Council’s handling of it. The Council explained:
• Its officers had visited the site and found no breach of planning control. The development matched with approved plans and the internal layout met space standards. There was a slight difference in height, but this was so small it made no meaningful difference to what had been approved.
• It accepted the plans showed Mr X’s home higher than it was, but this made no difference to its opinion that the development was acceptable.
• Mr X’s concern that the development was poorly finished was not a planning consideration.
19. Mr X said the council’s planning department is performing badly and that the Council’s scrutiny committee is dissatisfied.

My findings

20. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault in the decision making process causing a significant injustice to the individual complainant.
21. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
22. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
23. Our investigations need to be proportionate. We consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
24. I should not investigate this complaint further, because:
• I have seen no evidence that the Council’s decision to approve development next to Mr X causes him a significant injustice that we can remedy.
• Since Mr X complained about the Council’s decision to approve an amendment to the original application, the Council has considered and approved a third application. This retrospective planning approval supersedes earlier application decisions, which will not now be built. Because of this, investigating earlier approvals is unlikely to result in a finding of fault causing a significant injustice to Mr X or a recommendation of a remedy.
• Before the decision on the most recent application was made, the Council considered the application plans, comments from neighbours and other consultees, and planning policy and guidance. The Council followed the decision making process we would expect and so it is unlikely we would find fault.
• The Council visited the site and considered Mr X’s allegation that the building does not match approved plans, but it did not agree there was a breach of planning control. It also explained it has no power to control poorly finished building work. The Council has considered Mr X’s allegation, its enforcement powers, approved plans and what it found on site before making its decision. This is the process we would expect it to follow and the absence of fault in the decision making process, we may not comment further.
• We do not carry out general audit style investigations, so I will not investigate Mr X’s allegation that the planning department is underperforming. Our investigations focus on complaints of fault that cause injustice to individual complainants and for the reasons given above I see no good reason to continue my investigation.

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Final decision

25. I ended my investigation, as further investigation is unlikely to result in a finding of fault or a significant injustice to Mr X that we can remedy.

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Investigator's decision on behalf of the Ombudsman