Summary: Mrs X complained the Council failed to notify her when plans changed for a development adjacent to her property. We found the Council failed to follow its Statement for Community Involvement by not notifying Mrs X. This was fault. However, we decided on balance, the outcome was unlikely to have been different if the fault had not occurred.

The complaint

1. Mrs X complained the Council failed to notify her of a change to the plans submitted for a housing development. The revised plans showed two and a half storey houses in place of bungalows on land adjacent to her boundary. Mrs X complained the changes affected her amenity unreasonably.

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The Ombudsman’s role and powers

2. 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 us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
4. If we are satisfied with an organisation’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

5. I spoke to Mrs X and considered her complaint. I considered the Council’s response to the complaint and documents available on the council’s planning file and website.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.
7. We exercised discretion to consider the issues relating to the 2019 planning decision. This was because Mrs X was not aware of the amendments at that time and her complaint was ongoing because it included other matters.

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What I found

Amendments to Planning Applications

8. Developers sometimes make changes to planning applications during the planning application process. There is no statutory obligation upon councils to consult on revised plans. However, in deciding whether to re-consult they should consider the procedural fairness of not doing so and whether this might deprive a third party of the chance to make representations. They should also consider if the changes mean the nature of the application is still substantially the same as the original.

The Council’s Statement of Community Involvement (SCI)

9. The Council’s SCI states that it will follow the minimum statutory requirements to publicise planning applications and it states it will publicise on a wider basis than the ‘statutory minimum’ wherever possible to ensure it maximises opportunities for community involvement. It goes on to state that in addition to providing 21 days for comments on planning applications…”Any plans that amend the original application will be re-advertised for a further 14 days.”

The Council’s Supplementary Planning Guidance – “Successful Places”

10. This guidance sets out guidance on considering impacts to residential amenity. Paragraph 3.11.4 states minimum separation distances between developments traditionally help maintain reasonable levels of privacy and daylight. However, they should be balanced against the desire to create good design. It states a reasonable distance between directly facing properties will normally be 21m. It notes that consideration should also be given to site conditions. One example of this is where a difference in site levels may aggravate overlooking problems.

What Happened

11. In 2017 the owner of the site adjacent to Mrs X’s property submitted a planning application for a housing development. The plans proposed four bungalows along the boundary of the site with Mrs X’s land.
12. In April 2019 the applicant made changes to the development which was still undecided at that time. These included a change to the properties along the boundary with Mrs X’s property. Two of the bungalows had been replaced with two and a half storey townhouses and a water pumping station had been moved closer to Mrs X’s boundary. The applicant also sent revised drainage plans. Mrs X was not notified about the changes.
13. The case officer’s report for the application noted the alterations from the original plans, and the inclusion of townhouses. The report considered the impact Mrs X’s amenity. The case officer acknowledged Mrs X’s property was at a lower level to the development site and that Mrs X’s property had windows facing the development. However, the case officer stated the separation distance between Mrs X’s property and the rear of the new properties would be 28m. This complied with the Council’s guidance. The case officer considered the impact would be acceptable in terms of privacy and amenity. The application was approved in late 2019.
14. The Council received complaints in 2021 concerning various issues. The majority of the issues related to drainage on the site. This is subject to a separate complaint. However, as part of her complaint, Mrs X referred to the Council’s failure to notify her about the changes to the plans. She suggested that when the plans were amended, the Council should have required the developer to submit a new planning application.
15. Mrs X explained to us that she was concerned about the impact of the taller buildings along the boundary with her property. She stated the development site was already significantly higher than her land and the properties had living rooms at 1st floor level which led to significant overlooking which she found unreasonable.
16. In response to Mrs X’s complaint, the Council stated that it received formal amendments to the plans in April 2019. It agreed with Mrs X that, had the application already been decided, a fresh application would have been needed because the changes were ‘more substantial than would have been accepted as a non‑material amendment’ in that situation. However, it stated, because the application was undecided, it was permissible for the applicant to send revised plans. In respect of notification, the Council stated the question was whether the public had time to comment. It noted the application was not decided until October 2019 and the revised plans were placed on the Council’s website in April 2019. It stated this was ample time for further comments to be made. The Council noted the old and new plans were available for the public to compare.
17. Mrs X noted that after the time period for public comments ended, she did not return to the Council’s planning website. So, she was unaware of the change to the plans.
18. The Council told Mrs X that most development applications led to some kind of impact on neighbouring properties. It stated it had to consider whether those impacts were sufficiently harmful to warrant the refusal of the application. In this case it decided the impact did not cause harm that justified refusal.

What should have happened

19. Although the Council is not under a statutory obligation to notify the public about revised plans on undetermined planning applications, its SCI states clearly that it will do so.
20. Without notification, the public would not have been alerted to the changes. The Council suggested, because the plans were on its website for some months before it was approved, there was sufficient time for comments to be made. However, this ignored the commitment it makes in its SCI. In addition, given the application was originally submitted in 2017, it would have been unreasonable to expect the public, in these circumstances, to maintain regular vigilance of the council’s planning website for a period of years.
21. The failure to notify Mrs X of changes to the plans, which the Council recognises as material, was fault.
22. It is likely that Mrs X would have made further comments about overlooking if she had been given the opportunity. Because Mrs X was not alerted to the changes, I have considered whether the lack of notification affected the outcome. On balance, I do not consider that it did. I say this because there is evidence the case officer’s decision recognised the development along the boundary with Mrs X was taller than originally proposed. The report shows that her amenity was considered, the officer noted Mrs X’s property was at a lower level and they took account of the relevant supplementary guidance about separation distances.
23. So, while I found there was fault by the Council, I do not consider it led to a different outcome.

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Agreed action

24. Within four weeks of my final decision:
25. The Council should apologise to Mrs X for the failure to notify her of the amendments to the plans for development.
26. The Council should review why the SCI was not adhered to in this case and carry out relevant any briefings or training that is required to ensure the SCI is followed in future.

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Final decision

27. There was fault by the Council. We found, on balance, this did not change the outcome.

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Investigator's decision on behalf of the Ombudsman