Summary: Mr B complains about the way the Council dealt with planning issues on a site next to his property and how it dealt with his correspondence and complaint. There is no fault in how the Council dealt with enforcement issues on site. There is fault in how the Council considered the landscaping proposals for the site although that did not affect the outcome. The Council failed to respond to some communications from Mr B, delayed dealing with his complaint and failed to respond to all the points he raised. An apology, payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to ensure a development next to his property was built in accordance with the approved plans and conditions;
• wrongly accepted changes to the development as non-material amendments when it should have identified the changes resulted in major alterations;
• wrongly discharged a condition about landscaping without properly considering the information the developer submitted an appeal decision;
• failed to link the nonmaterial amendment applications to the original planning application on its website which makes it difficult for residents to identify and comment on proposals;
• delayed responding to his communications;
• delayed responding to his complaint; and
• failed to properly consider his complaint.
2. Mr B says failures by the Council have affected the openness of the site which is in the greenbelt and has led to him losing faith in the Council to perform its duties properly.

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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 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

8. Section 96A of the Town and Country Planning Act 1990 (the Act) says a local planning authority can:
• (1)...make a change to any planning permission relating to land in their area if they are satisfied the change is not material.
• (2)In deciding whether a change is material, a local planning authority must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission as originally granted.
9. A breach of planning control is defined in section 171A of the Act as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
10. Councils can take enforcement action if they find planning rules have been breached. However councils do not have to take enforcement action just because there has been a breach of planning control. 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 2012, paragraph 207).

What happened

11. Mr B occupies a property which is next to the site he has complained about. Both are in the greenbelt. Various planning permissions have been granted for the adjacent site. One of those permissions specified the stone to be used on the building. The planning permissions granted include a grant of approval from the Planning Inspectorate following an appeal. As part of that grant of permission the developer was required to submit a hard and soft landscaping plan. The Planning Inspector also removed permitted development rights in relation to outbuildings and means of enclosure to preserve the openness of the site. The plan the Inspector had showed an access strip between the two sites with no fencing proposed.
12. When the developer submitted a plan to discharge the landscaping condition he included a fence between the two sites and a fence at the front of the property. The Council received various objections to the proposed landscaping. That included concerns about the height of the vegetation proposed and the fence which several objectors noted contravened the Planning Inspector’s decision and the Council’s previous view in relation to an earlier application. The Council later approved the proposed landscaping, which included the fencing.
13. Mr B and some other residents contacted the Council to raise concerns about the developer not building the development in accordance with the approved plans. The Council acknowledged receipt of Mr B’s referral and told him it would update him once it had established the facts.
14. The developer put in an application for a nonmaterial amendment to change the positioning of the garage, at the Council’s request. That application included removal of two of the garage doors. The Council approved the nonmaterial amendment for the garage.
15. Mr B and other residents raised concerns about the type of stone used on the building as it did not match that approved. An enforcement officer visited the site. The developer told the enforcement officer he had experienced difficulties sourcing the stone agreed. The Council decided no material planning harm had arisen from the breach.
16. Mr B contacted the chief planning officer as he was concerned about the developments on site. When he did not receive a response Mr B contacted the chief planning officer again on 10 August 2022. There is no evidence of a response to that email.
17. Mr B put in a complaint to the Council on 1 October. The Council responded to that complaint on 20 October. Mr B was not satisfied with the Council’s response and asked it to escalate the complaint to stage two on 8 November. Mr B also emailed the Chief Executive to raise concerns about how matters had been dealt with on 15 November. The Council responded to the complaint at stage two on 15 December.

Analysis

18. Mr B says the Council failed to ensure a development next to his property was built in accordance with the approved plans and conditions. Mr B raises concerns about:
• use of different stone on the exterior of the building not matching the original or approved stone;
• changes to the location of the garages and removal of two garage doors;
• erection of a fence on the boundary and removal of the access way which breaches the openness of the site and the recommendations of the Planning Inspector;
• approving vegetation which will grow too tall and will therefore affect the openness of the site.
19. I will start with the issue of the stone used on the development. As Mr B points out, in discharging the condition on the original permission for the site the Council approved use of Chilmark stone and Bath stone but the developer has used Portland stone. Mr B says the two types of stone are different and have a different appearance and therefore should not have been accepted. I understand the point Mr B makes. However, as I say in paragraph 10, the Council's enforcement powers are discretionary. What that means is the Council is not under any obligation to take enforcement action and instead needs to consider in each case whether the breach warrants enforcement action.
20. In this case I am satisfied the Council properly considered the different type of stone used by the developer. That is because as well as considering the developer's representations about difficulties sourcing the approved stone an enforcement officer also visited the site to view the development as built. I am satisfied that would have allowed the enforcement officer to see the difference between the two types of stone. I am also satisfied the enforcement report set out the background of the site, the type of stone approved, the type of stone used and the fact those two types of stone were different in appearance before reaching the decision the breach was not so significant to warrant enforcement action. The evidence I have seen satisfies me this was because the Council was satisfied the stone used would not detract from the character or appearance of the development or the surrounding area. I appreciate Mr B strongly disagrees with that decision. However, as I say in paragraph 4, it is not the Ombudsman's role to comment on the merits of a decision reached without fault. As I have found no evidence of fault here I have no grounds to criticise the Council.
21. I am aware Mr B says the Council should have required the developer to put in a separate application for the change in stone. Mr B refers to a nonmaterial amendment in 2017 where the Council advised the developer to put in an application to vary the condition on the original permission if he wanted to change the materials on the eastern elevation. Mr B says the Council should have followed the same process in this case.
22. I understand Mr B's confusion about the different treatment of the 2017 proposal as compared with the situation in 2022. However, in 2017 the developer was proposing changes to the scheme. In those circumstances the Council advised the developer to put in an application if he wanted to vary the condition imposed on the permission. The situation was different in 2022 though. By that point the developer had already completed most of the development and residents had told the Council he had failed to comply with the condition relating to the materials used. This was therefore an enforcement investigation rather than a discussion about how to alter a condition.
23. When a development has not been built in accordance with the approved plans the Council has to consider whether enforcement action is appropriate. In this case the Council decided enforcement action was not expedient and I am satisfied the Council reached that decision properly. I am satisfied though the Council has advised the developer if he wants to regularise the development he will need to submit a retrospective planning application. That is a matter for the developer to decide. There is, however, no fault in the Council's process given it is satisfied enforcement action is not appropriate for the stone used.
24. The second issue is the location of the garage and removal of two of the four garage doors. Mr B says the developer put forward several nonmaterial amendments and the Council should have required him instead to submit a separate planning application. Not all the changes on this site though were as a result of a nonmaterial amendment. The introduction of the fence was part of the application to discharge a condition. The change of stone was following an enforcement investigation. Only the change to the garage was due to a nonmaterial amendment. In any event, the Council has to decide in each case whether the change proposed is suitable for a nonmaterial amendment or whether a full planning application is required.
25. In relation to the garage and the garage doors I cannot criticise the Council for treating that as a nonmaterial amendment. I would, though, have expected the Council to record its views on why changes to the arrangement of the garage and its doors was appropriate, referring to the impact that would have on views of the property. Failure to do that is fault. However, on the balance of probability, I do not consider it likely if the Council had addressed that point in the nonmaterial amendment report it would have made a different decision. I say that because the works are not significant and there is no evidence the location of the garage or the fact it had four doors was considered a major factor making the development acceptable when the Council granted planning permission.
26. The remaining issue is the fence on the boundary which removes the access way. Mr B raises concerns about the fence because he says it affects the openness of the site, which is in the greenbelt. Mr B also references the Council's previous comments in relation to a planning application which proposed a fence where the planning officer raised concerns about the impact on the openness of the site. In addition, Mr B refers to the Planning Inspector's decision where he decided to remove permitted development rights due to concerns about a fence or wall affecting the openness of the site.
27. I understand Mr B's concern given the background of the site. However, the fact the Planning Inspector removed permitted development rights does not mean the Council could not approve a fence on the boundary. Removing permitted development rights simply meant the applicant would need to seek permission to erect a fence. Nor do comments on the previous planning application bind the Council when considering later applications for the site, although they are relevant considerations. The issue for me to consider is whether the Council reached the decision to allow the erection of the fence properly.
28. I have some concerns with the report for the discharge of the planning condition which led to the fence being approved. That report contains no assessment about why the proposed landscaping and fence arrangements were appropriate. Failure to record the officer's reasoning in the report is fault. The Council has provided copies of emails showing discussions about proposed fencing. Those emails record the Council's view the fence would not impact on the openness of the area as it would remain open. It is now clear this email refers to a rail fence on a different part of the site and not the fence Mr B is concerned about at the front of the site. The Council says that was an existing fence and could potentially have become lawful through the passage of time or permitted development.
29. I am concerned about the Council's explanation here as the Planning Inspector had specifically removed permitted development rights as part of the approval of the planning application. The approved plans for that planning application also did not show a fence on the boundary at the front of the site and instead showed a maintenance strip between the two sites. In those circumstances I would have expected the Council to record its view about whether the proposed fencing at the front of the site and between the two sites was acceptable in light of the Planning Inspector's decision. Failure to do that is fault.
30. The Council says due to the location between the buildings and the highway it does not consider the existing fence would harm the openness of the greenbelt. I have considered the photographs provided by the Council and Mr B as well as the approved plans for the development and the Planning Inspector's decision. Taking into account the fact there is another building on the other side of the fence Mr B is concerned about, that the remaining part of the fence Mr B is concerned about lies between two buildings and given the relationship of the site to the highway I do not consider it likely, on the balance of probability, the Council would have reached a different decision had it properly assessed the impact of the fence when considering the landscaping plan. So, while I consider the Council at fault for not properly considering the impact of the proposed fencing before discharging the planning condition I do not consider it likely this affected the decision approve the fencing. I therefore consider Mr B’s injustice is limited to his frustration that the Council failed to consider matters properly at the time.
31. I appreciate Mr B is also concerned about the type of plants approved as part of the landscaping plan. Mr B says those plants can grow to a great height and would affect the openness of the area. I am satisfied though the condition imposed by the Planning Inspector required only that the Council approve the landscaping plan. The Inspector did not specify a maximum height for any proposed landscaping and it is therefore not protected by the condition. Nor would the Council normally have control over the height of vegetation. So, while I consider the report should have addressed that issue given it had been raised by various residents I do not consider it likely, on the balance of probability, the decision would have been different.
32. Mr B raised concerns about the planning officer not visiting the site when discharging the landscaping condition. While I understand Mr B's concern there is no requirement for a planning officer to visit the site. Planning officers are experienced at assessing applications based on plans given that for the most part applications are for proposed development rather than development that has already taken place. I therefore cannot criticise the Council for not visiting the site before discharging the planning condition.
33. Mr B says the Council now gives applications for nonmaterial amendments a separate reference number. Mr B says this means it is difficult for residents to identify and comment on proposals as they are no longer linked to the original planning permission. The first point to make here is that the Council is not required to consult on non material amendments. So, residents would not normally have an opportunity to comment on those proposals. I therefore consider it unlikely registering an application for a nonmaterial amendment with a separate reference number has caused Mr B an injustice. In any event, all relevant planning applications, including applications for nonmaterial amendments, are listed on the Council’s planning website against the registered address for the application. I therefore see no reason why Mr B would not be able to identify new nonmaterial amendment applications made for the property he is concerned about given he can view the information on the Council’s website under the property address.
34. Mr B says the Council failed to respond to his emails and telephone calls. Mr B is referring here to the concerns he raised with the Council about enforcement matters on the site as well as emails he sent to the chief planning officer and chief executive. I have a copy of the communications Mr B is referring to. For the email to the chief executive, this was submitted during the complaint process. I would not have expected the chief executive to respond directly to Mr B given he received a response at stage two shortly after his complaint. I therefore do not criticise the Council for not responding to the letter to the chief executive.
35. There is no evidence though the Council responded to the email Mr B sent to the chief planning officer in August 2022, despite the fact that email refers to previous emails not being responded to. Nor is there any evidence the Council provided Mr B with any update on the enforcement issues he raised, despite committing to do so. Failure to respond to Mr B’s communications and keep him up-to-date with the progress of the enforcement investigation is fault.
36. The Council accepts it delayed responding to Mr B’s complaint. For both the stage one and two complaints the Council failed to meet the timescales set out in its complaints procedure. That is fault.
37. Mr B says the Council failed to properly consider his complaint and respond to all the concerns he raised. Having considered the stage one and two complaints and the Council’s responses I am not satisfied the Council responded to all the issues Mr B raised. The stage two complaint response, in particular, lacks detail and does not address the concerns Mr B raised about inaccuracies in the stage one response, particularly around the section of fencing he was referring to. Failure to properly consider the complaint and respond to the concerns Mr B raised is fault. That is unlikely to have reassured Mr B the Council was taking his concerns seriously.
38. So, I have found fault in the Council’s recording of its decision in relation to the discharge of condition relating to landscaping details, in failing to provide updates to Mr B, in delaying dealing with his complaint and in failing to respond to his complaint properly. I do not consider though the way in which the Council has dealt with the various issues has affected the decisions reached. I therefore consider Mr B’s injustice is limited to his frustration and the time and trouble he has had to go to pursuing his complaint. I consider an apology and payment of £200 satisfactory remedy for Mr B. I also recommended the Council remind officers dealing with applications for nonmaterial amendments to ensure the decision document records the Council’s reasons for approving a nonmaterial amendment. I further recommended the Council remind officers dealing with complaints of the need to adhere to complaint timescales and to ensure complaint responses address all the issues raised by the person that has complained. The Council has agreed to my recommendations.

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Agreed action

39. Within one month of my decision the Council should:
• apologise to Mr B;
• pay Mr B £200;
• remind officers approving applications for nonmaterial amendments to ensure the decision document records the reasons for approving the nonmaterial amendment;
• remind officers dealing with complaints of the need to adhere to the complaint timescales and ensure complaint responses address issues raised by the person who has complained.

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Final decision

40. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman