Summary: Mr and Mrs X complained about how the Council dealt with a non-material amendment application for a residential development near their home. They said the application should have been referred to planning committee for determination and there should have been public consultation. The Council was not at fault.

The complaint

1. Mr and Mrs X complained about how the Council dealt with a non-material amendment application for a residential development near their home. They said the amendments changed the development’s design, they said the change was previously rejected by the planning committee and would impact the rural character of the area. Mr and Mrs X also said the application should have been referred to the Council’s planning committee for determination and there should have been public consultation. Mrs X said it caused her distress and anxiety and Mr X said it caused him frustration.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
3. 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)

Back to top

How I considered this complaint

4. I read Mr and Mrs X’s complaint and supporting documents and spoke to Mr X on the telephone.
5. I considered the Council’s supporting documents and the case officers report.
6. I considered the Council’s policies, and relevant law and guidance as set out below.
7. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Planning

8. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations say they should not. Material considerations are things that should be taken into account in deciding a planning application.
9. Material planning considerations include issues like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things that are not material, issues like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can be made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
13. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.

Non-material amendment

14. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
15. If the Council decides the changes are ‘material’, it may require that the whole 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. This type of amendment is known as a non-material amendment.

Government regulations and guidance on non-material amendments

16. Section 96(a) of the Town and Country Planning Act 1990 (as amended) says:
1. A local planning authority may make a change to any planning permission, or any permission in principle (granted following an application to the authority), relating to land in their area if they are satisfied that 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 or permission in principle as originally granted.
17. Government guidance states because an application to make a non-material amendment is not an application for planning permission, the existing Town and Country Planning (Development Management Procedure) (England) Order 2015 provisions relating to statutory consultation and publicity do not apply. Therefore, local planning authorities have discretion in whether and how they choose to inform other interested parties or seek their views.

Council non-material amendment guidelines

18. In 2017 the Council agreed guidelines for what it would and would not accept as a non-material amendment to previously granted planning permissions. The guidelines said for proposed non-material amendments for major development (such as in this case) they should be considered as a non-material amendment if they:
• Do not materially change the overall appearance of the development.
• Do not significantly increase the intensity of development.
• Would result in no significant additional material impact on amenity or infrastructure requirements.
• Would not result in a change in application description.
• Would not require a planning obligation to be amended.
19. The Council guidance says the matters listed in the bullet points above are guidelines and a starting point and each application for a non-material amendment would require officers to use their judgment based on the context, history and scale of the proposal.

Council constitution and scheme of delegation

20. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make. The council’s delegation scheme, found in its constitution, sets out what decisions officers can make themselves.
21. This Council’s rules say officers must refer decisions they could normally make themselves to committee in some cases. This includes if a councillor asks for it to happen and gives written reasons that refer to material (relevant) planning concerns.

What happened

22. Over two years ago, the Council approved an outline planning application for a housing development on land close to Mr and Mrs X’s home.
23. Later in the same year the Council refused a full planning application for a housing development on the same site. It was partly refused because the design failed to reflect the rural character of the local area. The applicant appealed the decision. This appeal has since been allowed.
24. In 2024 the Council received a non-material amendment application following the Council granting the outline planning permission. The key amendments related to aspects of design, materials and parking. Mr X said he was made aware of the non-material amendment application from a neighbour. Mr and Mrs X objected to the non-material amendment application, they said:
• they were unhappy with the planning process and how the non-material amendment application had been submitted and said the applicant had no interest in the local area and it was not an amendment;
• they were unhappy with the proposed design changes and changes in materials being proposed which meant the design was not in keeping with the rural character of the area; and
• the non-material amendment application should not be approved by planning officers and should be debated in public.
25. The Council considered the comments made on the non-material amendment, including Mr and Mrs X’s comments. The Council’s planning case officer report said there was no formal requirement to produce an officer report for a non-material amendment application but it was produced because of strong public interest in the application. The report included:
• a summary of the representations received on the non-material amendment application including comments from neighbours, a local councillor and the Parish Council;
• the Council officer’s comments on the representations received;
• an explanation of the Regulations and the Council’s guidance on non-material amendments explaining it was possible to grant a non-material amendment application that was in conflict with the Council’s published guidance;
• an explanation of the amendments proposed and comments on the proposed key design changes.
• the officer’s conclusions. It explained the changes would have an impact on the overall distinctiveness of the houses and there was some conflict with the Council’s non-material amendment guidance in relation to changes to individual dwellings but when the scheme was viewed as a whole the changes were not significant and not material in planning terms. It said the changes were acceptable as a non-material amendment under the Regulations;

• an explanation why the decision was taken under delegated powers. It said it was a judgement if the proposed changes would be material or not and it was not a planning application and did not qualify as a planning committee decision in line with its published scheme of delegation; and

• the officer's recommendation to approve the application.

26. In late-April 2024 Mrs X complained to the Council, stating the non-material amendment application should have been referred to committee to allow community engagement and debate, in line with the National Planning Policy Framework.
27. In late May 2024 the Council responded to Mrs X’s stage 1 complaint. It said it did not uphold her complaint. It said the application had been properly considered, and did not need to go to committee.
28. Mrs X was unhappy with the stage 1 response and escalated her complaint to stage 2 of the Council’s complaint process.
29. In mid-July 2024 the Council sent Mrs X its stage 2 response. The senior officer that wrote the stage 2 response said they disagreed with part of the planning officer’s non-material amendment report conclusions. They said the Council should have invited a full planning application for certain aspects of the development. This was because they went beyond the Council’s guidelines for non-material amendments. But the officer explained there were no valid reasons for the committee to have not approved the scheme. The officer concluded the planning decision had been made and it was out of time for any legal challenge. The senior officer said the case provided an opportunity for the Council to review its approach to non-material amendments.
30. Mr and Mrs X remained unhappy and complained to us.

My findings

31. We are not a planning appeal body. It is not our role to decide if the changes to the development were material or not; that was the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.

Non-material amendment application

32. When deciding whether to approve a non-material amendment application, the courts have clarified that councils should consider the procedural fairness of such an application. Councils should consider whether a non-material amendment might deprive any third party of the opportunity of making representations they might want to make. Government guidance also says councils have discretion in whether and how they choose to inform other interested parties or seek their views on non-material amendment applications.
33. The planning case officer followed the decision-making steps we, legislation and guidance expects, to reach their view these were non-material amendments. They considered comments from Mr and Mrs X and others. They considered the relationship between the proposal and what had already been approved. They considered the Council’s published guidance and decided it was possible to approve an application in conflict with that guidance. There was no fault in the Council’s decision making.
34. When we find no fault in the decision-making process, the law says we cannot criticise the subsequent decision then reached by the council. In other words, we cannot say we would have reached a different decision.
35. The Council however, is not restricted in the same way as us. Therefore, it was open to the senior officer who wrote the stage 2 response to disagree with the decision reached by the planning officer. The senior officer reached a different conclusion about what, in their opinion, should probably have happened. They were entitled to reach this different view. But this does not mean there was maladministration in how the original decision was made.

Delegated decision

36. Mr and Mrs X wanted the non-material amendment application to go to planning committee to be determined. The Council considered comments made by a ward councillor but decided it had not received a request in line with the constitution. It decided the ward councillor did not set out the planning reasons why it should be decided at planning committee. The Council responded to correspondence received from Councillors and it did not receive any further correspondence. The Council followed the process we would expect and so I find no fault.

Back to top

Final decision

37. I have completed my investigation finding no fault.

Back to top

Investigator's decision on behalf of the Ombudsman