Summary: Ms X complained about the Council’s handling of a non-material amendment application and planning enforcement investigation for a development near her home. She also complained about the Council’s consideration of her complaints about this matter. We found fault by the Council, and it has agreed to apologise to Ms X and pay her £300 in recognition of the injustice caused to her by the identified fault.

The complaint

1. The complainant, who I shall call Ms X, complained about how the Council dealt with a non-material amendment application for a development near her home. She says the proposal warranted a full planning application.
2. Ms X also complained the development is not built in accordance with the approved plans and about the Council’s handling of the resulting enforcement investigation and her complaints.
3. Ms X says the Council’s actions have left her home with a significant loss of privacy and overlooking, caused her distress and put her to the time and trouble of following complaints.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. As part of my investigation I :

• discussed the complaint with Ms X;
• considered the complaint and documents provided by Ms X;
• made enquiries of the Council and considered its response;
• considered the relevant legislation and policies;
• set out my initial view on the complaint in a draft decision statement and considered Ms X and the Council’s comments in response and;
• made further enquires of the Council in response to Ms X’s comments on my draft decision.

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What I found

8. Planning permission is required for the development of land (including its material change of use).
9. Planning permission may be granted subject to conditions relating to the development and use of land.

Non-Material Amendments

10. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
11. If the Council decides the changes are ‘material’, it may require the whole or part of the 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, but only if:

• 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, so the amended proposal is still substantially the same as the original.

12. This type of amendment is known as a non-material amendment. 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.

Enforcement

13. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
14. 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.
15. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

The Cornwall Design Guide 2013

16. Section 4.11 says the design of developments should consider privacy and outlook, and where distance between habitable rooms is less than 25 meters schemes should show how the design principles ensure that privacy is maintained.

The Cornwall Local Plan Strategic Policies 2010-2030

17. Section 12.2 says that development proposals should protect individuals and property from:

• Overlooking and unreasonable loss of privacy;
• Overlooking and overbearing impacts: and
• Unreasonable noise and disturbance

Background

18. Ms X brought a home on a large development in September 2020. Construction was continuing on plots adjoining and adjacent to her home.
19. What follows is a brief chronology of planning permission granted for the development and the concerns and complaints raised by Ms X following construction balconies and staircases to plots B-F. It does not contain all the information I have reviewed during my investigation.

2017 Application

20. The Council received a planning application seeking outlining planning permission for a large residential development.
21. The Council approved the application subject to conditions including a condition requiring the development to be built in accordance with the approved plans.
22. The approved plans show:

• Ms X’s home will be a detached dwelling. The garden of her home shares a boarder wall with Plot B. Plots B and C are directly behind Ms X’s home.
• Ms X’s home will be 2.55m lower than plots B and C
• Plots B and C will be a pair of semi-detached houses. The plans did not show any raised balconies, walkways, or staircases.

2019 Application

23. In late 2019 the Council received an application seeking to revise the originally approved plans. The Council carried out a public consultation on the application.
24. The Council approved the application in spring 2021.
25. The approved plans for the application show:

• The site plan shows plots B and C to be a pair of semi-detached house with no balconies, raised walkways or staircases.
• However, the drainage plan shows plots B and C will have 9 steps and a balcony on the rear elevation.
• The site plan shows Plots D,E and F will have balconies and staircases. The drainage plan shows these plots will have a balcony and a staircase.

2021 Non-Material Amendment application (NMA)

26. In summer 2021 the Council received a NMA application proposing changes to the approved plans. The changes sought to add decking to plots B and C and to reduce the decking for plot F. The description did not include plots D and E.
27. The Council consulted with the local Town Council and Elected Members. The Town Council raised some initial concerns about the changes sought but following further information from the Council both it and Elected Members did not make any objections.
28. The plans presented as part of the application show the changes sought. However, the Decision Notice does not list the plans showing these changes on the list of approved plans attached to it.

Enforcement Investigation 2021

29. In summer 2021 Ms X told the Council the balconies and staircases to plots B-F did not match the approved plans. The Council began an enforcement investigation.
30. In autumn 2021 an enforcement officer visited the site. The officer accessed some plots and took photos during his inspection.
31. Following his visit, the enforcement officer identified the following:

• The balconies to plots D and E were not in the description of the Non-Material Amendment application and so, despite being on the site layout plan, they do not have planning permission.
• The balcony to plot B did not match the approved plans because it is bigger. The officer decided this increased the chance of overlooking of Ms X’s home.
• The balcony to plot F had altered in position and the balcony area increased which may make overlooking to neighbouring properties more likely.

32. To address the breaches of planning permission identified the enforcement officer proposed the developer take the following action:

• Make a retrospective planning application for the balconies to plots D and E
• Install obscure glazing around the parts of the balcony on plot B which cause the most overlooking of Ms X’s home.

33. The Council asked the developer for a response to its suggestions throughout the period October 2021 to February 2022. The developer responded in February 2022 broadly agreed to the Council’s suggestion action.
34. On 23 February 2022 the Council decided its enforcement investigation. It said the following:

• Plot B-the balcony was bigger than shown in the approved plans. The increased area was near Ms X’s home. The officer decided the breach of planning control caused overlooking. To mitigate this the officer arranged for the developer to install a 1.8m wooden privacy screen.
• Plot C- The balcony met the approved plans. However, the screening wall did not. The officer decided the breach did not cause any planning issues.
• Plots D and E-The balconies to these plots did not benefit from planning permission as they were not in the description of the NMA application. The balconies met the approved plans which showed balconies to these two plots. The officer decided there were no reasons planning permission would not have given for the balconies if they had been included in the application description. He said the balconies were well screened by a garage and 1.8m wall on either side.
• Plot F-The balcony did not meet the approved plans. It was bigger with room for a table and chairs. However, the officer decided that given the size of the gardens and angle of the plot the impact of any overlooking was reduced.

35. For these reasons the officer decided that it was not expedient to take enforcement action and closed the case.
36. However, the developer did not complete the agreed works despite the Council asking it to do so. The Council reopened the case in April 2022.
37. In May 2022 the Council asked the developer to file a retrospective planning application for the works it had previously asked the developer to complete.
38. In summer 2022 the Council received a retrospective planning application.

2022 Application

39. In June 2022 the Council received a retrospective planning application for the balconies to plots D and E and for screening to plots B and F to prevent overlooking. The application was approved during my investigation.

Complaint about NMA application

40. Ms X was unhappy with the Council’s handling of the NMA application, and she made both a stage one and stage two complaint. The substantive points raised by Ms X as part of her complaints were:

• The application did not meet the criteria for a NMA application and a full planning application was necessary. This was because the balconies exceed the 300mm height referenced in permitted development legislation.
• The officer considering the application did not properly consider the impact on the amenity of her home. She disagrees the balconies are “inconsequential in terms of scale” and they have no “detrimental impact either visually or in terms of amenity”.
• The officer who decided the application did not visit her home and so could not have properly assessed the impact.
• The balconies to plots B and C were completed before the application was decided. The application was also decided on the day she first raised concerns about the balconies.
• She explained the impact of the balconies and she considered this amounted to an unacceptable loss of privacy.

41. The Council’s complaints responses said:

• Balconies to plots B -F are on the drainage plan approved as part of the 2019 application. It accepted the approved site plan for the application did not show the balconies or staircases however their inclusion on the drainage plan means the balconies and stairways were granted planning approval.
• Nevertheless, the case officer for the application should have carefully checked the plans submitted as part of the 2019 application.
• When the 2019 application was submitted there were no existing residents to consider. The focus was to consider if the proposal would create a sustainable neighbourhood with good quality living accommodation for future residents.
• Detailed plans of the balconies were provided as part of the NMA application, and the case officer considered these when deciding the application. The plans are to scale and so the officer could use them to understand the proposal.
• It considers an NMA application was correct for the changes to the balconies given they already benefited from planning permission. It accepted the description for the application suggests the balconies were additions and it should have changed this to reflect the application was for revisions to the balconies.
• Deciding whether a revision to the approved plans is a NMA is not dependent on whether the proposal meets permitted development rules.
• It had regard to government guidance on considering if a revision to the approved plans represents a non-material amendment. It considers the proposal met the criteria in this guidance and so its decision to deal with the proposal as a NMA is correct.
• It does not consider the revisions sought in the NMA allowed any extra overlooking to that allowed in the 2019 application.
• The Decision Notice for the NMA application did not list all the plans filed as part of the application but should have.
• The case officer report for the 2019 application does not refer to the relationship between Ms X’s home and plots B and C but this is not expected in an application for a major development.
• Plot C is at an oblique angle to Ms X’s home and with no facing windows. Views from the balcony and staircase to Ms X’s home are obscured and mitigated to an acceptable degree by timber screen fencing between plots C and B.
• The balcony to plot B allows for greater overlooking into Ms X’s home than those offered by the windows of the property. The Council does not consider the additional view resulted in a significant loss of privacy as the properties are on a newly built high-density development with varying topography. However, it is exploring with the developer adding screening to the balcony to help mitigate Ms X’s concerns.
• The balconies to plots D-F are over 30 metres (m) from Ms X’s home and so meet the advice set out in the Cornwall Design Guide.
• The balconies will not create a level of use that would be out of place in a residential setting.

Enforcement complaint

42. Ms X was unhappy with the Council’s decision to close the enforcement investigation. She complained about the decision at both stages of the Council’s complaints process. She raised the following concerns:

• The enforcement officer did not visit her home and makes no reference to the difference in topography between her home and plots B-F and so his decision that there is insufficient harm to warrant enforcement action is not robust.
• Planning permission for the balconies was not granted as part of the approval of the 2019 application because the application did not contain any supporting documentation, architects’ drawings or any other information about them.
• As planning permission was not granted for the balconies as part of approval of the 2019 application the revisions to them could not be considered as part of a NMA application.
• The mitigation works were not completed at the time Ms X made her complaints and she questioned how long the Council would wait to take further action if they remained outstanding.

43. The Council’s replies said:

• It considers the balconies benefit from planning approval granted to the 2019 application and referred to its consideration of this matter as part of Ms X’s NMA application complaint.

• The Council considered if there were breaches to the planning approval granted and it is addressing the planning breaches that are causing harm with the developer.
• Officers do not have to conduct site visits to assess the impact of planning breaches as it can use other sources to do so.
• It is working with the developer to ensure the mitigation works are completed. If this does not happen it will take further action, if appropriate. It will seek to ensure the long-term retention of the privacy fences by imposing a condition on any planning permission granted for the site.

44. Ms X’s stage one complaint about the NMA application was considered by the same officer who decided the 2019 application.

Complaint to the Ombudsman

45. Ms X remained unhappy with the Council’s handling of complaints about the NMA application and the enforcement case. She reiterated the concerns she made in both complaints to the Council. She also expressed concern that her complaints about both matters had been responded to by officers involved in the decisions complained about and so, were not considered impartially.
46. In its response to our enquiries the Council said:

• It accepts plans filed for the 2019 application show conflicting proposals and that elevational drawings and site plans do not show the balconies and staircases.
• The case officer report for the 2019 application does not consider the impact of the balconies and staircases on the amenity of neighbouring plots. However, for a development of this scale the officer report would not be expected to deal with the relationship between plots in detail.
• The description of the 2019 application would not be expected to included details of balconies and walkways as it sought to vary a condition of the original planning permission.
• The changes sought under the NMA application are minor and inconsequential in relation to the original application and so a full planning application was not necessary.
• Screening for plot B has been requested because the balcony does not meet the approved plans.
• It does not consider it necessary to request screening for plots D-F because there is a separation distance of over 25 metres from Ms X’s home and the balconies. This is in keeping with the Cornwall Design Guide which suggests that screening is only necessary to where there is distance of less than 25 metres between facing habitable rooms.
• The Council is still waiting for documents from the developer including updated plans to enable it to determine the 2022 application.
• It has reminded case officers of the importance of carefully checking filed plans to make sure they do not provide conflicting information. It also reminded officers to make sure Decision Notices contain the details of all the relevant plans.

Analysis

2019 Application

47. I consider the Council is at fault in its handling of this application because there are discrepancies in the approved plans.
48. The case officer report for the application does not discuss the relationship between the balconies and neighbouring properties including Ms X’s. While a case officer report for a large development would not be expected to comment on the relationship between all the proposed dwellings it is unfortunate that we cannot gain any clarity on what the case officer considered from this document.
49. For the above reasons I consider there is doubt about to what extent the case officer was aware of the balconies and stairways proposed for the plots near Ms X’s home and therefore what consideration was given to the relationship between plots.
50. However, on balance I consider the balconies and stairways would likely have been approved if the fault I found had not occurred. This is because the balconies broadly comply with Cornwall Design Guide in place at the time and specifically section 4.11. While this policy refers specifically to habitable rooms and not to balconies it provides a useful guide to assess the privacy implications of a development and so I consider it is relevant to this matter.

Non-Material Amendment Application

51. The drainage plan approved as part of the 2019 application shows balconies and walkways to the plots near Ms X’s home and, as a result, they benefit from planning permission.
52. Ms X argues the changes sought under the NMA are not amendments but constitute additions. I do not agree. The changes to the balconies and stairways sought under the NMA did not propose to increase the size of the balconies significantly when compared to what was approved in the 2019 application.
53. I consider the plans support the view of the case officer the changes sought were “inconsequential in terms of their scale in relation to the original application” and the changes sought were in keeping with government guidance on what proposed changes may be non-material amendments.
54. I note Ms X considers a NMA application was not appropriate as the changes sought to exceed what is allowed under permitted development rules. I do not agree. It is not a requirement that only changes allowed under permitted development rules can be considered under NMA applications.
55. For the above reasons I do not consider there are grounds to question the merits of the Council’s decision to use a NMA application or the decision it reached on the application.
56. However, the Council is at fault for failing to ensure all the plans approved as part of the application were listed on the Decision Notice. It is also at fault for not ensuring the application description accurately reflect the proposal.
57. I note Ms X’s concern that some balconies were constructed prior to the NMA application being decided. This is not fault by the Council because it was a decision the developer made in the knowledge that approval was not yet granted.

Enforcement investigation

58. From the evidence I have seen I do not find fault with the Council’s consideration of this matter. This is because:

• it visited the site and used other sources to consider if the balconies and staircase were being built in accordance with approved plans.
• when it identified breaches of the approved plans it considered the impact on the amenity of neighbouring properties including Ms X’s home.
• its approach to resolving the harm caused by the identified breaches with the developer is in keeping with government guidance on planning enforcement.
• it reopened the case when the developer did not carry out the agreed works and requested a retrospective planning application be submitted.

59. I appreciate that Ms X disagrees with the conclusions of the enforcement officer regarding the impact of the balconies on the amenity of her home. However, the officer could only consider deviations from the approved plans. He could not reconsider the planning decisions already made under the 2019 and NMA applications. The case officers report shows he considered all the relevant matters and so there are no grounds on which I can question the merits of his decision.

Complaints

60. Ms X has raised concerns about the Council’s handling of her complaints. This is because officers previously involved in the decisions have replied to her complaints. The Council’s complaints policy says that a step one complaint will normally be responded to by the service complained about. This happened in Ms X’s case. However, the officer who replied was also the officer who determined the 2019 application. I agree this questions the impartiality of the investigation because discussion of the NMA inevitably included discussions about the 2019 application.

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Agreed action

61. We found fault with the Council’s handling of Ms X’s complaints and with aspects of how it determined the 2019 and NMA applications. This has caused Ms X uncertainty and necessitated her pursuing complaints. In recognition of the injustice caused to Ms X, the Council will, within one month of my final decision, take the following action:

• apologise to Ms X in writing; and
• pay her £300 for the uncertainty and time and trouble caused to her.

62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I have completed my investigation. I found fault by the Council, and I considered the agreed remedy suitably addresses the injustice caused by the fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman