Summary: Mrs X complained about the way the Council handled planning matters and planning enforcement for a neighbouring new build. She said it caused overlooking, as well as stress and frustration. We do not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mrs X, complained about the way the Council handled planning matters for a neighbouring new build. Specifically, she complained that the Council:
1. failed to visit her home in 2017 when it initially granted planning permission;
2. approved applications to vary planning permission but has no guidance or policy on how it processes such applications;
3. failed to properly consider her objections to two planning variation applications; and,
4. failed to take enforcement action on three rooflights that were installed higher than the approved plans.
2. Mrs X said it caused overlooking, as well as stress and frustration.

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What I have and have not investigated

3. I have investigated parts b, c, and d of this complaint.
4. In part a of this complaint, Mrs X complains that the Council failed to visit her home in 2017 when it initially granted planning permission. As I set out below, the Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so.
5. In this case, Mrs X said she assumed she had no case because planning permission had been granted and that could not be changed. Also, she said she did not realise she could bring her complaint to the Ombudsman. I do not consider these are good reasons to exercise the Ombudsman’s discretion and investigate the Council’s actions over five years ago.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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)

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How I considered this complaint

10. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs 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.
11. I considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

Planning applications

12. The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and include issues such as overlooking, traffic generation, and noise.
13. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
15. Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission. A senior planning officer will then decide most applications, but some go to the council’s planning committee for councillors to decide the application.
16. The Ombudsman will consider whether the decision-makers had enough information in front of them to make an informed decision.

Non-material amendments to planning permission

17. Councils can make a change to any planning permission, or planning permission in principle, if they are 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.

Section 73 applications

19. Applications to remove or vary a planning condition after planning permission has been granted may also be referred to as a section 73 application. An application to remove or vary planning conditions can be used to change or remove previously imposed conditions. The applicant has to submit proof that the conditions are no longer relevant or reasonable. Councils can grant such permission unconditionally or subject to different conditions, or they can refuse the application if they decide that the original condition(s) should continue.

Planning enforcement

20. Government guidance explains how councils should use their 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.
21. Councils can ask applicants to regularise breaches by submitting a retrospective planning application.

What happened

22. Mrs X lives near a new build. The Council granted planning permission for the new build in 2017.
23. In 2021, the developer (who I will refer to as ‘the applicant’) applied to amend the approved planning permission. This was a section 73 application (explained above).
24. The Case Officer visited the site and Mrs X’s house. The Case Officer’s report said the Council considered a section 73 application was appropriate in order to consider the type of amendment the applicant was seeking. The Case Officer outlined Mrs X’s objections to the application. The Case Officer said while the amendments were material to the consideration of the application, they were considered to be minor and appropriately mitigated.
25. In January 2022, the planning committee considered the application. Mrs X told the planning committee in person about her objections. The planning committee granted the application subject to planning conditions.
26. In February, Mrs X complained about the Council’s decision. In response, the Council said it had visited her, listened to her concerns, and discussed the proposal. It said there is no statutory definition of what is a ‘minor material amendment’ for section 73 applications. It explained that such applications need to assess material considerations, and this is what the Council did.
27. Mrs X complained to the Council’s planning enforcement team in February, April, May, and June. The Council did planning enforcement site visits in March, May, and July. It decided not to take enforcement action and explained to Mrs X the reasons for its decisions.
28. In June, the applicant applied for a non-material amendment to amend the planning permission.
29. The Case Officer’s report said the main planning consideration was whether the proposed amendments were non-material. They explained that there is no statutory definition of what is ‘non-material’, and that the Council had discretion over its decision. The Case Officer decided that the proposed amendments were non-material, explained their reasoning, and approved the application.
30. Mrs X then brought her complaint to the Ombudsman.

Analysis

Guidance and policies on varying planning applications

31. Mrs X complained that the Council approved applications to vary planning permission but has no guidance or policy on how it processes such applications (part b of the complaint). She said the Council has no policy on what constitutes ‘material change’ (regarding the section 73 application) or what constitutes ‘material’ and ‘non-material’ (for the non-material amendment application).
32. 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 Council explained this to Mrs X in its complaint response.
33. There is no requirement or obligation for the Council to have a policy or guidance on what constitutes ‘material’ changes, so I do not find the Council at fault for not having guidance or a policy on this.
34. Mrs X said other councils have policies or guidance on what constitutes ‘material’ changes, so she feels the Council should as well. I do not agree.
35. Mrs X said the new build should have been built in line with the approved plans. I find that councils have discretion to decide what is acceptable in planning terms, and what is not. An applicant can apply to regularise anything that was not built exactly in line with the approved plans. A council can then decide to approve or reject the application.
36. The Council was entitled to make these decisions, and I find no evidence of fault in how the Council decided these applications.

Mrs X’s objections

37. Mrs X complained that the Council failed to properly consider her objections to two planning variation applications (part c of the complaint). She said the Case Officers’ reports did not properly or thoroughly consider her objections to the two applications.
38. I find the Case Officer’s report for the section 73 application (dated January 2022) outlined Mrs X’s objections and questions, and thoroughly responded to them. Further to this, the planning committee heard Mrs X’s objections in person.
39. I find the Council properly considered Mrs X’s objections.
40. There is no requirement for councils to consult neighbours for non-material amendment applications. So, the Council had no obligation to consider Mrs X’s objections to the non-material amendment application.
41. For these reasons, I do not find the Council at fault.

Enforcement action

42. Mrs X complained that the Council failed to take enforcement action on three rooflights that were installed higher than the approved plans (part d of the complaint). She said the windows are 20cm higher than the approved plans and they can be fully opened, so the fact they are obscured does not provide adequate protection for her amenity.
43. I find the Council did a number of enforcement investigations about potential planning breaches that Mrs X alleged. I have considered the Council’s investigations and I am satisfied the Council investigated appropriately and thoroughly. The Council was entitled to decide not to take enforcement action.
44. For these reasons, I do not find the Council at fault.

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Final decision

45. I have completed my investigation. I do not find the Council at fault for parts b, c, and d of this complaint. I have not investigated part a of the complaint because it is too late for us to consider.

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Investigator's decision on behalf of the Ombudsman