Summary: Miss X complains the Council incorrectly advised her to submit a non-material amendment (NMA) application for changes to existing planning permission which it then rejected, after it deemed the changes as material, incurring a £234.00 fee. There was no fault in the initial advice the case officer gave Miss X. However, there was fault with the Council’s on-line guidance which did not clearly manage an applicant’s expectations around pre-application advice. The Council agreed to carry out a review of its on-line guidance around NMA applications.

The complaint

1. Miss X complains the Council incorrectly advised her to submit a non-material amendment application for changes to existing planning permission which it later rejected.
2. Miss X wants the Council to refund the £234.00 fee she paid based on the planning officer’s incorrect advice.

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The Ombudsman’s role and powers

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. We cannot question whether an organisation’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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I spoke to Miss X and considered the information she provided.
8. I considered the Council’s online guidance in relation to how it considers advice requests around non-material amendment applications and its communication with Miss X about the matter.
9. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Planning conditions

10. Councils may impose planning conditions to make development acceptable in planning terms. Planning conditions limit and control the way in which the planning permission must be implemented.

Non-material amendment to planning permission

11. Following a grant of planning permission, it may be necessary to make amendments to the proposals which were originally approved. A non-material amendment (NMA) may be applied for to approve a minor change to the planning permission which does not breach any conditions originally placed on the consent. There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and a matter for the Council to decide. A NMA means the applicant will not have to submit a new planning application. The usual fee for making a NMA application is £234.00. There is no right of appeal for refusal of NMA applications.

Minor material amendment to planning permission

12. An amendment to approved planning permission which cannot be treated as a NMA requires a new freestanding planning permission usually by way of a minor material amendment. There is no set criteria to what is considered a minor material amendment however the Government defines it as ‘one whose scale and nature results in a development which is not substantially different from that which has been approved’.
13. Applications for minor material amendments should be made by way of a variation of condition application. The fee for this is £234.00

The Council’s guidance on amendments to planning permission

14. The Council’s website sets out how it deals with proposals for small changes to planning permission. It says to propose a non-material amendment the applicant should first contact the case officer who dealt with the original planning application, setting out the proposed changes clearly. The website states the case officer will let the applicant know if they can submit the change as non-material or whether they need to make a new planning application. The website confirms the fee for a NMA is £234.00.
15. There is no guidance on the Council’s website about minor amendments or applications to vary conditions.

Our approach to pre application planning advice

16. Pre application advice does not bind the council and any planning application then submitted must be considered on its merits. It is good practice for councils to make clear pre application advice is not binding in the information they publish on their websites; and when giving written pre application advice.

Good administrative practice

17. The Ombudsman has published guidance on ‘good administrative practice’ for councils which we use as a benchmark for the standards we expect when we investigate the actions of councils. One of the principles is ‘being service-user focused’ and we expect councils to inform service users what they can expect and what the council expects of them. Councils are expected to set expectations for service users by having and communicating appropriate guidance.

What happened

18. In 2020 Miss X applied for planning permission to convert a three-storey property, situated in a conservation area, into a single dwelling which included changing windows and doors. The Council granted planning permission with conditions. One of the conditions included that the development should conform with all aspects of the plans and details as submitted with the application.
19. In early 2021 Miss X emailed the case officer who dealt with the original planning application. Miss X told the officer that as part of the development she wanted to replace the original sash windows with like for like double glazed windows. Miss X clarified that the windows would be replaced by windows in exactly the same style with exactly the same external paintwork but in double rather than single glaze. Records show Miss X had mistakenly omitted the detail of double glazing from the original application. Miss X asked the case officer whether she could submit the amendment as non-material.
20. The case officer emailed Miss X a few days later. They said ‘based on the information provided, it sounds that the proposals would constitute an NMA and not a Section 73 [application for amendment to planning permission] application. With this in mind, it is considered that proposed drawings must evidence the exact materials and finishes to ensure they are visibly consistent with the approved plans and drawings. Please note that this is not an informal acceptance of an application and therefore acceptable plans indicative of the above are requested to inform a decision’.
21. Following the email from the case officer Miss X submitted a NMA application with plans of the proposed changes from the original application along with the application fee of £234.00.
22. A few weeks later the case officer wrote to Miss X to inform her they had rejected her NMA application. The case officer said Miss X’s proposals were material changes to the initial planning permission which would impact the design and amenity of the building.
23. Unhappy with the Council’s decision Miss X wrote to the Council in March 2021. Miss X said she followed the guidance on the Council’s website in asking the case officer whether to submit the amendments as non-material. Miss X said she included the initial planning reference. Miss X said she now had to spend another £234.00 submitting a further application. Miss X asked the Council to either re-consider its decision or refund the £234.00 fee given the incorrect advice the case officer gave her.
24. Miss X did not receive a response to her concerns so in early May 2021 she complained. Miss X said she submitted the NMA application based on the advice from the case officer and after following the guidance on the Council website. Miss X said she wanted to know a way forward to replace the windows on the property without having to pay further fees.
25. A planning officer emailed Miss X a few days later. They explained that Miss X’s proposed double glazed windows would have different frame dimensions due to the thicker glaze. The officer said therefore the frames would change how the existing building looked, which they said was important in the area where Miss X lives as the area is characterised by traditional style buildings. As such, the officer said the windows were not considered like for like as they would materially change the appearance of the window. Therefore, the changes were not a NMA.
26. The planning officer told Miss X that the correct process was to apply for a minor material amendment by applying to vary a condition in the original planning permission. The officer said this would incur a further £234.00 fee. The officer said that without further drawings showing the dimensions they could not say whether the double glazing would be appropriate.
27. In July 2021 Miss X submitted an application to vary a condition in the initial planning permission. This application showed Miss X requested to vary plans to show the minor material amendment to the details of the windows. Miss X included revised plans and drawings. Miss X included the fee of £234.00. The Council granted Miss X’s application in October 2021.
28. The Council wrote to Miss X with its final response to her complaint with regards to her request for a refund of the £234.00 she paid following the case officer’s initial advice for her to submit a NMA application. The Council said the case officer provided advice to Miss X in good faith, explaining they would need to see detailed plans. The Council concluded the case officer based their advice on information supplied at the time. However, when they reviewed the application, they decided the changes had a greater impact than the NMA process could achieve. The Council therefore did not uphold Miss X’s complaint.
29. Miss X remained unhappy and complained to us.

My findings

30. Pre-application planning advice is not binding. Miss X approached the case officer with her proposal and asked them whether the changes to the windows were allowed under a NMA application. The case officer provided Miss X with advice and told her they required plans and drawings before making a final decision. The case officer told Miss X that their advice was not an informal acceptance. The case officer’s advice was based on information submitted by Miss X at the time. Had Miss X provided the case officer with the relevant drawings and plans it is likely that they would have given Miss X different advice to apply and vary the conditions, which she ultimately did. In the circumstances, there was no fault by the Council in the advice given to Miss X. It was Miss X’s decision to submit the formal NMA application based on the case officer’s initial advice.
31. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of how much a complainant disagrees with the decision. Miss X submitted a formal NMA application following the email from the case officer which incurred a fee. After considering the plans and drawings the case officer decided to reject the application. The case officer made that decision after considering all the relevant information including the detailed plans and drawings and was not at fault.
32. The Council’s website guidance however is not clear. It does not explain that the case officer’s advice is not binding. Neither does it explain that case officers may require drawings and plans to provide robust advice. Not doing so is poor administrative practice and is fault. It fails to adequately manage an applicant’s expectations about what they can expect from pre-planning application advice. This did not cause Miss X an injustice however as I am satisfied the case officer set out what they expected before they could provide robust advice on what application Miss X should submit.

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Agreed action

33. Within one month of the final decision the Council agreed to review its online guidance around NMA applications so it clearly explains what information applicants should provide so the case officer can provide more informed advice. The guidance should also manage an applicant’s expectations that any advice is not binding.

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Final decision

34. I completed my investigation. There was some fault which did not cause Miss a significant injustice. The Council agreed to a service improvement recommendation to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman