Summary: Mr X complained that the Council failed to take enforcement action when a new house was not built according to the approved plans. He also complained about the way the Council handled an application for non-material amendments to the new build. Mr X said this caused a loss of privacy, amenity, and property value. He said it caused stress and he has lost faith in the planning process. We do not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mr X, complained about the way the Council handled planning matters for a development next to his house. Specifically, he complained that the Council:
1. failed to take enforcement action when a new house was not built in line with the approved plans;
2. inappropriately considered a retrospective planning application as a non-material amendment application;
3. failed to consider his objections to the non-material amendment application; and,
4. claimed his objections would not have materially changed its decision on the application.
2. Mr X said this has caused a loss of privacy, amenity, and property value. He said his home is now at increased risk of flooding. He said this caused stress, and he has lost faith in the planning process.

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What I have and have not investigated

3. I have investigated all parts of Mr X’s complaint except for two specific points.
4. Part of Mr X’s complaint is that the Council said the impact of the non-material amendment would be mitigated by the fencing plan, which was part of the original planning permission. Mr X complains that the developer should have planted a six-foot-high evergreen hedge, but what has actually been planted is an 18-inch-high row of deciduous trees.
5. Mr X also complains about issues over a rill (a small stream) and construction of a bund (an embankment).
6. The Council told the Ombudsman that these particular issues are part of an ongoing enforcement investigation. Mr X believes the enforcement investigation has completed but he does not know the outcome.
7. As I set out below, the law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply.
8. Mr X has not yet complained to the Council about the outcome of its enforcement investigation into the hedge and bund. So, I am not satisfied that the Council knows about this particular point of complaint, and I am not satisfied the Council has had an opportunity to reply to it. Therefore, I find that this part of Mr X’s complaint is premature.
9. I have explained this to Mr X who says he will make a fresh complaint to the Council about the outcome of its enforcement. If Mr X remains dissatisfied after the Council has responded to his complaint about this matter, he can bring a fresh complaint to the Ombudsman.

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The Ombudsman’s role and powers

10. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
11. 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)
12. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
13. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))

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How I considered this complaint

14. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
15. I considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

Planning enforcement

16. Government guidance explains how councils should use their planning enforcement powers. Enforcement action should only be taken if it would be a proportionate response. In reaching a decision, councils should consider what harm is caused to the public by the unlawful development. If a council decides it would approve an application for the development, further enforcement action is not likely to be in the public interest.

Non-material amendments

17. Councils can make a change to any planning permission, or planning permission in principle, if it is satisfied the change is not material. Government guidance says there is no statutory definition of ‘non-material’ because it will depend on the context of the overall scheme. The guidance says an amendment that is non-material in one case may be material in another case. The council must be satisfied that the amendment being applied for is non-material in order to grant the application.
18. There is no legal requirement for councils to carry out statutory consultation or publicity for non-material amendment applications, as they would for full planning applications. A council will usually make an assessment on the basis of the information submitted in the application. If the council finds the amendment is acceptable, the amendment will be agreed in writing.

What happened

19. Mr X’s house is next to a new development. There is one particular house in this development that backs onto Mr X’s property. In November 2021, Mr X submitted a planning enforcement complaint to the Council about the way the house had been built.
20. In January 2022, the Council told Mr X it had done an initial site visit and would employ an independent surveyor to check measurements.
21. In April, the Council told Mr X the outcome of its enforcement investigation. It said it was not expedient to take enforcement action. Mr X complained to the Council on the same day.
22. The Council responded to Mr X’s complaint. The Council explained how it carried out its enforcement investigation, including using an independent surveyor. It explained that enforcement powers are discretionary, and it is not expedient to take enforcement action if the breach is something that would likely get planning permission if applied for. It said it decided it would not be expedient to pursue any of the planning breaches it found.
23. In July, the Council received an application for a non-material amendment for the property in question.
24. In August, Mr X emailed the Council with his objections to the non-material amendment application.
25. Later that month, the Case Officer completed their report on the non-material amendment application. The Case Officer said that, even though there is no legal obligation to consult on non-material amendment applications, it did a consultation applying the same protocol as if the application was for full planning permission. The Case Officer said the Council did this because of the continuing sensitivities around the recent enforcement investigation.
26. The Case Officer explained the history of objections and planning enforcement investigations. They said the Council’s investigations found the property was out of position but decided it was not expedient to enforce the breaches. They said the developer was now seeking to regularise those changes as non-material amendments. They explained government guidance which says there is no statutory definition of ‘non-material’.
27. The Case Officer’s report addressed all of the objections received. This included an objection that a new door caused Mr X a loss of privacy. The Case Officer considered the likely impact of the proposed changes on the character of the area and the likely living conditions of the neighbours. The Case Officer found there would be negligible overlooking to Mr X from changes to the side elevation. They also found changes in levels on the boundary with Mr X’s property would not significantly impact on his residential amenity.
28. The Case Officer considered the proposed amendments were all non-material, and recommended approval.
29. In September, Mr X complained to the Council again. He said the Council had not considered his objections.
30. In its complaint response, the Council accepted that although it had received Mr X’s objections, they were uploaded to the wrong application. The Council apologised for this.
31. The Council said the Case Officer dealing with this non-material amendment application was also involved in Mr X’s previous complaints, so they were aware of his concerns even though they did not see his formal objections. The Council said the Case Officer had reviewed Mr X’s objections and considered they would not have led to a different conclusion than to approve the application.
32. The Council said it is required to assess non-material amendment applications taking into account the impact on neighbouring properties, regardless of whether any representations are made. It said it is for the Council to decide what is and is not ‘non-material’ on a case-by-case basis. The Council said it had discretion on if and how it chooses to inform other parties or seek their views.
33. The Council said Mr X had not been materially disadvantaged by the error made in not uploading his objections. It recognised, however, that this had undermined Mr X’s confidence in the planning process. As a gesture of goodwill, the Council offered Mr X £250 for the potential distress caused.
34. Mr X then complained to the Ombudsman.

Analysis

Enforcement action

35. Mr X complains that the Council failed to take enforcement action when a new house was not built in line with the approved plans (part a of the complaint). He says the side of the new house that faces his property should not have any doors or windows. He says what was built is closer to his property, and higher, than the approved plans.
36. The Council carried out an enforcement investigation as it should have. It employed an independent surveyor to check the measurements. I find this is appropriate and shows good practice.
37. The enforcement investigation found breaches of planning permission but the Council decided it was not expedient to take enforcement action. This is a decision the Council is entitled to make. I therefore do not find the Council at fault.

Non-material amendment application

38. Mr X complains that the Council inappropriately considered a retrospective planning application as a non-material amendment application (part b of the complaint).
39. Mr X says it should have been a full planning application, and disagrees that the changes were ‘non-material’ because of the impact on his property.
40. I do not agree that this was a retrospective planning application. I find the application submitted to the Council was a non-material amendment application. Retrospective planning applications are full planning applications. They are not the same as non-material amendment applications.
41. Councils can only consider the applications they receive. In this case, the Council received an application for non-material amendments. The Council was not legally obliged to consult on this application because it was not a full planning application. However, the Council decided to consult with neighbours because of the sensitivities around the development and around enforcement. I find this is evidence of good practice.
42. I find the Case Officer considered the non-material amendment application in the same way as a full planning application. I therefore find that the type of application the Council considered in this case did not have any impact on the way it was treated or the outcome. I find the Case Officer considered the impact on Mr X’s property and his privacy. I therefore do not find the Council at fault.
43. Mr X recognises that there is no national guidance on what constitutes ‘non-material’. He says his research found other councils have guidance on what is and what is not considered ‘non-material’. He says the Council does not have anything like this. He says these are commonly established principles which are effectively national standards of where the boundary is between material and non-material.
44. As I have said above, Government guidance says there is no statutory definition of ‘non-material’ because it will depend on the context of the overall scheme. The guidance says an amendment that is non-material in one case may be material in another case.
45. I do not find the Council at fault for failing to have its own guidance on what is and what is not ‘non-material’. I do not agree that other councils’ guidance means there are commonly established principles. Government guidance, set out above, is clear on this. I find the Council considered the application properly and appropriately. For this reason, I do not find fault.
46. Mr X says the Council has not justified why it considered the content of application to be non-material. I do not agree. I find the Case Officer’s report sets out the reasons they considered the proposed amendments to be non-material.
47. As I have said above, councils must be satisfied that the amendment being applied for is non-material in order to grant the application. The Council received a non-material amendment application. It found the amendments to be non-material, so it decided to approve the application. This is a decision the Council is entitled to make.
48. For these reasons, I do not find the Council at fault.

Mr X’s objections to the non-material amendment application

49. Mr X complains that the Council failed to consider his objections to the non-material amendment application (part c of the complaint). He says this is because the Council failed to log his objections properly.
50. I do not agree that the Council failed to consider Mr X’s objections. Mr X’s objections were almost entirely the same as the objections the Council received and addressed in the Case Officer report.
51. There was one objection that Mr X made that the Case Officer did not consider. However, I find that this objection was not relevant to the non-material amendment application. The Case Officer’s report sets out the four points to be considered in that application, and this one of Mr X’s objections did not fall into any of those points.
52. One of the objections raised by a third party was specifically about the impact of a new door on Mr X’s privacy. The Case Officer considered this. I find the Case Officer considered the impact of the non-material amendment application on Mr X’s property, his amenity, and overlooking.
53. I therefore do not find that the minor administrative error of failing to upload Mr X’s objections caused any injustice to Mr X.
54. I note that the Council offered Mr X a goodwill gesture of £250 to recognise his potential distress caused by undermining his confidence in the planning process. It is for Mr X to choose whether or not to accept this offer.

Outcome of the non-material amendment application

55. Mr X complains that the Council claimed his objections would not have materially changed its decision on the application (part d of the complaint).
56. As part of the Council’s response to Mr X’s second complaint, the Case Officer considered whether or not his objections would have materially changed the Council’s decision. The Council found that, even if the Case Officer had seen Mr X’s objections when assessing the application, they would not have materially changed the Council’s decision.
57. The Council said that the Case Officer was aware of Mr X’s concerns because they had been involved in his previous complaints. I find the Case Officer’s report addresses all bar one of Mr X’s objections. This is because the same objections were raised by a third party, and the Council received and considered those objections. Therefore, I find that the Council did consider Mr X’s objections.
58. As I have said above, I find the one objection that was not considered would not have been considered for that application in any event. This is because the non-material amendment application was about four specific points, and this one objection did not fall into any of those four points.
59. Further to this, the subject of this one of Mr X’s objections is now part of an on-going enforcement investigation, which I have discussed in paragraphs three to nine above.

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Final decision

60. I have completed my investigation and I do not find the Council at fault.

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Investigator's decision on behalf of the Ombudsman