Summary: We will not investigate Mrs X’s complaint about the Council’s decision to treat changes to the layout of a residential development as a non-material planning amendment. There is not enough evidence of fault in the Council’s decision-making to warrant an investigation. Even if there was such fault, the matter does not result in sufficient injustice to Mrs X to justify us investigating. We also cannot achieve the outcomes Mrs X seeks from her complaint.

The complaint

1. Mrs X lives near a site granted permission for residential development. She complains the Council incorrectly decided the developer’s application to change the orientation of some of the new houses was a non-material amendment not requiring a further planning application.
2. Mrs X says as a result of the changes to the location and orientation of properties on the development, her garden will be overlooked by four bedroom windows, and she had no opportunity to object to the change. Mrs X says the new houses will be an eyesore and she is concerned about noise from the new residents.
3. Mrs X wants the Council to order the demolition of two of the houses nearest her property and rebuild them in line with the original site plan from 10 years ago. If the Council cannot do this, she wants it to pay her compensation.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered information from Mrs X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making processes followed and but for that fault a different decision would have been made. We cannot replace a council’s view with our or someone else’s opinion. So we consider the processes councils have followed when making their decisions.
8. In 2021 the Council received and considered the developer’s application to amend some aspects of its earlier planning permission for the site. The officers dealing with the application determined the changes proposed should be dealt with as ‘non-material amendments’. These are changes to a planning site which are considered to not alter the development to such an extent that a further full planning application is required. It falls to local planning authority officers to decide whether an amendment is non‑material. Officers considered the developer’s proposed changes and determined they were minor and would not have an impact on neighbour amenity. We recognise Mrs X disagrees with the Council’s decision. But there is not enough evidence of fault in the Council’s assessment of the amendments and its decision-making process here to warrant investigation. It is not fault for a council to properly make a decision with which someone disagrees.
9. Even if it was fault for the Council to not have dealt with the amendments to the site as a full planning application, we will not investigate here. Mrs X says the amenity impact on her property from the development’s amendments is that her garden will be overlooked by four new bedroom windows. The impact of a new development on outside space carries less weight in planning matters than impact on an existing building. The planning documents and online maps show Mrs X’s garden is at least 22 metres away from the development site’s perimeter. The separation distances between the new properties within that site and Mrs X’s garden means the planning outcome from the amended plans does not result in sufficient injustice to Mrs X to justify us investigating. The loss of opportunity to comment on the development amendments is not itself a sufficient injustice here to warrant an investigation.
10. We recognise Mrs X says she considers the new houses to be an eyesore. Whether or not the amendment application was treated as non-material, there would have been new houses of the permitted design near Mrs X’s property. The Council decision which is the subject of the complaint has no bearing on whether new properties would be built nearby, within sight of some of Mrs X’s property. Opinions on the visual merits of any development are subjective. There is no right within planning law entitling an existing resident to only have views from their property they personally find pleasing or acceptable. Mrs X having views from her property of new houses she does not like is not a sufficiently significant personal injustice which warrants an investigation.
11. We note Mrs X is concerned about noise from the use of the new houses. But there would have been new houses on the development site near Mrs X’s property, irrespective of the way the Council dealt with the amendments at the core of the complaint. Any noise from new residents has not occurred as the properties are not yet inhabited, so this is a claimed injustice which has not happened and that we cannot remedy. If Mrs X considers noise from future residents amounts to a statutory nuisance, she should report this to the Council.
12. Mrs X wants the Council to organise demolition of some of the houses being built nearest her property. We cannot order councils to take such action. Alternatively, Mrs X wants the Council to compensate her. We make recommendations for remedies. We only do this where we consider there has been council fault causing a significant personal injustice, which for the reasons explained above, does not apply here. We do not make awards of compensation. That we cannot achieve the outcomes Mrs X seeks is a further reason why we will not investigate.

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Final decision

13. We will not investigate Mrs X’s complaint because:

• there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and
• even if it was fault for the Council not to have dealt with the amendments to the development as a full planning application, the matter does not cause such significant personal injustice to her to justify an investigation; and
• we cannot achieve the outcomes she seeks from her complaint.

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Investigator's decision on behalf of the Ombudsman