Summary: Mr and Mrs X complained the Council failed to include land level height conditions in planning permission for a housing development adjacent to their property, causing loss of amenity. The Council is at fault for failing to include land level conditions within the planning permission, however Mr and Mrs X have not been caused significant injustice.

The complaint

1. Mr and Mrs X complained the Council failed to include planning conditions for the land levels of a housing development next to their property. They said this has caused a loss of amenity, distress, anxiety and devalued their home.
2. Mr and Mrs X want the Council to provide ten non-deciduous pleached trees within their property boundary as screening.

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The Ombudsman’s role and powers

3. 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 any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or (Local Government Act 1974, section 24A(6), as amended, section 34(B)).
4. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
6. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law Guidance and Policies

Planning permission

7. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise.

Material planning considerations may include:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

Material planning considerations do not include:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Non-Material Amendments

8. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
9. If the Council decides the changes are ‘material’, it may require the whole or part of the 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.

10. This type of amendment is known as a non-material amendment. There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and a matter for the Council to decide.

Planning Enforcement

11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.
12. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

13. In 2023 the Council granted planning permission for a housing development on land adjacent to Mr and Mrs X’s property.
14. In early January 2024, Mr and Mrs X raised concerns with the case officer regarding non-material changes to the land levels on the development, where no public consultation had taken place. Consequently, planning enforcement conducted a site visit and determined no breach of planning control.
15. In February 2024 Mr and Mrs X complained to the Council, they said;
• changes in the land level was a material change and should have been subject to neighbour consultation;
• the planning application did not include any changes in land levels;
• changes in land levels would impact boundary fencing heights, removing privacy to surrounding houses; and
• the planning officer had self-reviewed and closed the complaint without following Council policy.
16. The Council provided a response in May 2024, it said;
• the original application included the finished level of the properties on the development, however conditions were not imposed on these levels in the final decision as they should have been. This meant it was then difficult to control levels across the site. It apologised and had put measures in place to ensure it did not happen again;
• finished floor levels were considered under the discharge of a condition in the approved planning. They were considered acceptable and did not require public consultation;
• it was determined to try and resolve the matter regarding the omitted condition and perceived reduced level of amenity. Officers would contact the housing developer to try and mitigate the impact; and
• no complaints had been made via the formal procedure and officers had responded to requests for information from Mr and Mrs X. However, it would respond to the complaint at stage one of its procedure.
17. In November 2024, Mr and Mrs X’s legal representative wrote to the Council. They said the apology for the omitted land level condition in the planning permission was acknowledged however they wanted:
• no trees planting on the development within 15 metres of their property;
• the Council to purchase and maintain a row of mature pleached trees of Mr and Mrs X’s choosing and plant them within the boundary of their property for two years; and
• the Council to strengthen the boundary, provide a fence and carry out landscaping.
18. The Council’s response advised they could not restrict planting as the land was owned by the developer. However as a good will gesture it would fund the purchase of ten pleached trees up to £2500 but would not be liable for ongoing maintenance or any landscaping. It said the developer had not agreed to extend the boundary fence.
19. In May 2025 Mr and Mrs X’s legal representative wrote again to the Council. They asked for the Council’s offer to be increased to £12,093.30 to match a quote for landscaping and trees. The Council advised its offer was a good will gesture to a maximum of £2,500.
20. Mr and Mrs X remained unhappy with the Councils response and asked the Ombudsman to investigate the matter.

Analysis

21. We are not a planning appeal body. Our role is to review process by which planning decisions are made. We look for evidence of fault causing injustice to the individual complainant.
22. The Council has accepted fault and has apologised for its failure to place land level conditions within the granted planning permission. It has taken a suitable steps to mitigate, what it recognises as a ‘mistake’. This included an enforcement visit which determined no breach and communicating with the developer. However, from the evidence I have seen Mr and Mrs X‘s property is not directly overlooked by any property on the adjacent development, a substation with no windows being the nearest building. There are no roads directly behind their property. Therefore, the fault has not caused Mr and Mrs X a significant injustice. The Council has offered Mr and Mrs X a payment as a gesture of goodwill and it is open for them to accept this.

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Decision

23. I find fault not causing significant injustice.

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Investigator's decision on behalf of the Ombudsman