Summary: Mr X complains that the Council allowed a non-material amendment to a planning permission it granted years ago. There was fault by the Council because it did not notify Mr X of the application. However, the complaint was closed because there is no worthwhile outcome that can be achieved through further investigation of the matter by the Ombudsman.

The complaint

1. I refer to the complainant as Mr X. Mr X complains that the Council allowed a non-material amendment to a planning permission it granted years ago. Mr X says:
• The amendment means occupiers of first floor apartments on a block of flats can have access to a terrace which directly overlooks his garden. Mr X also says the terrace has a direct line of sight into his living area.
• The amendment was allowed without any consultation.
• The Council accepted the non-material amendment route was inappropriate but then defended the decision to ignore the conditions of the original planning permission.
• The Council failed to impose any acceptable mitigation on the builder and failed to handle his complaint in a timely manner.

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The Ombudsman’s role and powers

2. 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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

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

3. 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

4. I considered the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I discussed matters internally with the Ombudsman’s planning specialists. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

Non-material amendment applications

5. 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. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make; and
• the nature of the application remains the same, that is the amended proposal is still substantially the same as the original.
6. Councils may also decide that some very minor changes are ‘de minimis’ and can be accepted without requiring a non-material amendment.
7. 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.
8. 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.
9. As the changes sought will be non-material, consultation or publicity are unlikely to be necessary. However, the local planning authority concerned must notify anyone who is the owner of land which would be affected by the non-material amendment, or where the land comprises an agricultural holding, the tenant of that holding. The applicant must also record who has been notified on the application form. Anyone notified must be told where the application can be viewed, and that they have 14 days to make representations to the local planning authority.
10. The local planning authority must have regard to the effect of the change, together with any previous changes made under section 96A of the Town and Country Planning Act 1990. They must also take into account any representations made by anyone notified, provided they are received within 14 days of notification. 

Background to the complaint

11. The Council granted planning permission for a block of flats adjacent to Mr X’s home. The new building is on higher ground than Mr X’s home. The new building would have a set of terraces which overlook Mr X’s home. When the Council granted planning permission it imposed two conditions which concerned the development’s relationship with Mr X’s home. The conditions were:
• The ground floor kitchen and lounge windows of the flat closest to the northern boundary shall either be obscure glazed and non or high-level windows with a still height no lower than 1.7m above floor level unless otherwise agreed in writing by the LPA. No further windows shall be inserted into the northern elevation of this flat. REASON: in order to prevent overlooking in the interests of amenity in accordance with policy GE2 of the Local Plan.
• The roof area of the building hereby permitted shall not be used as a balcony, roof garden or similar amenity area without the prior written consent of the LPA. REASON: To avoid overlooking of the adjacent property in the interests of residential amenity.
12. The conditions meant any occupiers of the flats would be unable to use the proposed terraces unless the Council approved such use.
13. In 2019, the Council received a non-material amendment application which proposed changing windows to doors on two flats. The Council accepted the application was not a material change and validated the non-material amendment application. It approved the change.
14. Mr X was abroad when the application was submitted to and then determined by the Council. On his return, he complained to the Council about the change and the impact on his amenity.
15. The Council accepted the application was one where some consultation with neighbours may have been expected or required. It said it may not have been appropriate to deal with the application as a non-material amendment.
16. However, the Council felt the new access to the terrace would only allow cursory views on to Mr X’s home. It said access to the terrace would not cause an unacceptable level of overlooking or serious loss of amenity.
17. Mr X had contacted the developer in addition to complaining to the Council. As a result of his contact, the developer installed obscure glazed glass panels on the terrace that faced Mr X’s home. Mr X considers the panels are insufficient and the Council did not do anything to ameliorate the development’s impact on his home.

Finding

18. I find fault by the Council because it did not notify Mr X of the non-material amendment application. The statutory requirement is that the planning authority should notify owners of land which would be affected by the non-material amendment.
19. The Council could arguably say that it did not consider Mr X would be affected by the amendment. But there is no evidence that it considered this point. This is because it has no written record of the planning officer reaching this conclusion.
20. I cannot now determine the consequence of this fault. Notification could have meant the Council would have dealt with the application as a material amendment or asked the developer to submit a full planning application. However, I note Mr X was abroad at the time. So, whether Mr X would have responded had the Council notified him is speculative.
21. Had the Council notified Mr X of the application and he made representations, then the Council would have had to decide whether the proposal was a material or non-material amendment. But from the papers, I cannot now conclude the decision could only have been a choice of material amendment or full planning application.
22. The fault by the Council in this matter is compounded by the absence of a planning officer report when the Council determined the non-material amendment application. A report usually sets out the planning officer’s judgement of material planning considerations and the merits of the application. So, it would, for example set out the planning officer’s judgement of the proposal’s impact on adjoining properties.
23. Because there is no planning officer’s report in this case, Mr X takes issue with the Council’s explanation of the proposal’s impact on his home. There is no statutory requirement that there is a planning officer’s report in the case of non-material amendment applications. But given the two conditions in the original planning permission, I consider the Council should have included documentary evidence of the planning officer’s evaluation of the proposal’s impact on the relationship between the development and Mr X’s home.
24. I cannot conclude there was fault by the Council due to the lack of a planning officer’s report. This is because it is not a statutory requirement. However, I am critical of the Council’s approach for the reason stated in the foregoing paragraph.
25. I sympathise with Mr X. But there is no worthwhile outcome that can now be achieved through further pursuit of this complaint by the Ombudsman. While I am critical of the Council and consider its handling of the matter could have been better, I cannot now say what the outcome would have been had the Council notified Mr X.
26. I urge the Council to use this complaint as a learning opportunity for its planning team. While not every type of application warrants a full evaluation as in a planning officer’s report, there should be evidence of the reasons for decisions made on non-material amendment applications.

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Final decision

27. There was fault by the Council because it did not notify Mr X of the non-material amendment application. However, there is no worthwhile outcome that can be achieved through further pursuit of this complaint by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman