Summary: We found fault on Mrs B’s complaint about the way the Council considered a Minor Material Amendment application for a neighbour’s development. It failed to record her concerns made during a call, pass them to the decision maker, or carry out a third site visit. It missed an opportunity to establish the correct site ground levels and did not deal with her complaint correctly. The agreed action remedies the injustice caused. I am satisfied it considered her main representations and properly considered whether this was the correct application to make.

The complaint

1. Mrs B complains about the Council approving amendments to planning consent granted to a neighbour, as minor material amendments, because it failed to:
1. consider the impact of the changes on her amenities;
2. consider her representations;
3. insist on the submission of a full planning application instead;
4. base its decision on measurements and information that were not misleading or inaccurate, particularly the difference between ground levels; and
5. respond promptly to her complaints.
2. As a result, her amenities have been affected by the changes and she has suffered upset and frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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Council protocol for minor amendments following a grant of planning consent (2011)

6. From 1 October 2009, all amendments to planning applications must be dealt with by a formal application for either a ‘non-material amendment’ or a ‘minor material amendment’.
7. Any amendment that cannot be treated as a ‘non-material amendment’ will need a new, freestanding planning permission either by way of a ‘minor material amendment' to an existing planning consent or by a new planning application.
8. While government guidance does not define a ‘minor material amendment’, it agrees with a definition which states it is one whose ‘scale and nature results in a development which is not substantially different from the one which has been approved’. It is down to each local planning authority to decide how to define it.
9. A judgement on ‘materiality’ on a case is one of fact and degree, along with considering the likely impact of the amendment on the local environment. It is considered against the development as a whole, not just part of it. The original planning consent is always the basis for forming a judgment on its materiality. Each case is different and considered on individual merit and is a matter for the Council to decide.
10. It goes on to list the key tests as to the acceptability of a change to an approved scheme under the minor amendment procedure. These include whether: the change is significant in relation to the original approval; it would result on a materially detrimental impact either visually or in terms of amenity; there would be significant increases in site coverage, height, or site levels.
11. Local planning authorities have discretion to decide which statutory consultees to consult but, should take a proportionate approach. In terms of other publicity/notification, where at its discretion, a proportionate approach is adopted, taking account there would have been full consultation when the original consent was granted, and the variation may have an impact only on limited groups.

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How I considered this complaint

12. I considered all the information Mrs B sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs B and the Council. I considered their responses.

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What I found

13. Mrs B’s neighbour applied for planning consent in 2017 for the construction of a new house on land next to her property (application 1). The Council refused the application. The neighbour appealed the decision to the planning inspectorate who gave consent the following year.
14. In 2022, her neighbour applied to the Council to vary the consent granted (application 2). This was a Minor Material Amendment application. It included changes to the development’s height in parts and to the single storey roof. The Council granted it the following year.
15. Mrs B is unhappy with the Council’s decision to approve application 2. She complained it decided it while the planning officer, who had visited to see the raised land levels, was on leave and after the neighbour had raised his own land level by concreting and tiling it over.

Complaint a): impact on amenities

16. Mrs B complained the Council’s approval of application 2 affected her amenities in several ways. For example, its decision to allow the neighbour to access the new roof on the single storey extension would impact on privacy to her house and garden.
17. The Council explained application 2 showed a Juliet balcony to the patio doors at first floor (this is a very narrow balcony or railing which is just outside the window or pair of French doors). This prevented the neighbour from accessing the flat roof area. While Mrs B pointed out the glass screen across these doors was not installed, the Council confirmed an officer saw the glass on site waiting to be fitted during a site visit.
18. She also complained its decision to approve application 2 affected her amenities because of the increased height of the development close to her rear boundary. She argued the Council failed to properly consider its height especially as the neighbour increased the land levels since the approval of application 1.
19. The Council agreed she called an officer in February 2023. It accepted during this conversation it may have been implied the officer would do a third site visit. This did not take place. There is no record of this call. Nor could the Council say why the visit was not done. It confirmed it was unclear whether the officer fully investigated the extent of the changes in levels and the assessment of application 1 consent.
20. It also accepted following her discussions with the officer, who then went on leave, his manager considered and approved application 2. No details of her concerns, or the agreement to visit the site again, was seen by the manager. The officer sent the manager the case with a recommendation, but this did not mention any need for further investigation. Nor did it refer to his telephone conversation with Mrs B.
21. The Council argued had it carried out a third visit, while it was likely to have investigated the ground levels further, it was unlikely to have reached a different decision on application 2. It apologised for this failure.

My findings

22. I found the following:
1. The Council confirmed a Juliet balcony was shown on the plans for application 2 which would prevent the neighbour accessing the flat roof area as Mrs B feared. The plans I have seen also stated these doors would have a Juliet balcony.
2. I note the Juliet balcony was installed. I found no fault on this complaint. This is because the Council considered and addressed the potential for the use of this flat roof area which would have had an impact on Mrs B’s privacy.
3. There was a failure to record and ensure the concerns Mrs B discussed with the officer shortly before he went on leave were recorded and available to the decision maker. This is fault.
4. On balance, I am also satisfied the possibility of carrying out a third site visit was discussed with Mrs B in response to her concerns about altered land levels on site. Again, there was a failure to properly record this and ensure it was available on file for the decision maker. There was also a failure to carry out this third site visit.
5. I consider the fault caused Mrs B an injustice. She has the uncertainty of not knowing whether her concerns were properly investigated and assessed when approving the application.

Complaint b): consideration of representations

23. Mrs B claimed the Council failed to consider three letters of representation sent before it granted consent.
24. She noted 19 documents were on the Council’s website for application 2 between September/October 2022. Since approval, there are only nine showing.
25. She also complains the officer report, decision notice, and new documents (with photographs of measured dimensions) were put on the site in February 2023 which gave no chance for people to review and comment on them as it gave consent to the application the same day.
26. The Council explained none of the documents uploaded were materially different and it decided it was not necessary to re-advertise the application or seek further comments.
27. Mrs B’s written representations included concerns about the height of the building, the impact on her amenities, and loss of privacy due to access to the flat roof. The planning officer’s report noted the application wanted to include a ‘minor change in height’ with amendments to the roof and rear projection. The report concluded, after a site visit, the building was 0.2m taller than it should be. It also noted the change to the flat roof at the rear and its height. The report also summarised the representations received.
28. The report had a section which considered the impact of the application on neighbouring amenity and referred directly to its impact on Mrs B’s property. It concluded given the degree of change it was unlikely to result in a higher degree of overshadowing or harm the outlook of neighbouring occupiers beyond that from application 1. It also considered the distance of the height increase from Mrs B’s boundary.

My findings

29. While I have seen screen shots of the case record which shows the documents listed before they were replaced by the proposed plans on the day the Council approved the application, I am unable to say these were not materially different as claimed by the Council.
30. On balance, I am unable to form a view as to whether the proposed plans updated on to its website the same day the Council decided the application were more or less the same as the previous ones Mrs B and other residents had seen and commented on.
31. I am satisfied the Council took account of the written representations Mrs B sent. This is because the report referred to them directly and addressed them.

Complaint c): full planning application

32. Mrs B believed the Council should have insisted on the neighbour sending a full planning application for the changes, rather than accepting the Minor Material Amendment application (application 2). She claimed a planning enforcement officer agreed with her view. In response to my draft decision, she sent a copy of an email from the enforcement officer to her dated July 2022. This states he had formally requested the submission of a revised planning application for changes he noted on his site visit the week before.
33. I asked the Council about this and was sent a long email thread between the enforcement officer and the neighbour’s agents. This showed two months later, the officer suggested the neighbour submit a Minor Material Amendment application to regularise the changes found with the built development.
34. The planning officer report for application 2 noted the development was built about 0.2 m higher than approved, which is what the application wanted to regularise. There were also some other amendments including the lowering of the first-floor window height, for example. It changed the roof at the rear close to Mrs B’s boundary from a flat roof to one that would now be pitched towards her boundary.
35. The report went on to assess whether the proposal would be a ‘minor material amendment’. It considered the Council’s protocol and whether any of its key tests were positive along with planning considerations. The report listed all the key tests. If none were positive, a proposal was likely to be considered appropriate for consideration as a ‘minor amendment’. Each request would be considered on its merits taking account of all the circumstances.

My findings

36. While the report fails to say whether the response to each of the tests listed was positive or not, I am satisfied the inference was none were positive. This is because the report went on to recommend approval. In addition, I note the enforcement officer decided the way forward was for a Minor Material Amendment application, not a full planning applciation.
37. I found no fault on this complaint. It was for the Council to decide whether the scale and nature of the changes resulted in a development which was not substantially different from the one it approved. As its policy states, this was a question of fact and degree when it also considered the likely impact of the amendment on the local environment. It had to consider the amendments against the whole of the development, not just the part of it.
38. In the absence of fault, the Ombudsman may not challenge the merits of the Council’s decision that it did not need a full planning application in these circumstances.

Complaint d): misleading and inaccurate information

39. Mrs B complained the planning officer’s report failed to accurately set out the proper height differences between application 1 and application 2. She argued the measurements were wrongly taken from above her ground level which meant the measurements were inaccurate. She said this meant the height differential is much greater than given by the Council. Put simply, the plans for application 2 failed to show the proper, higher ground level which the Council missed.
40. Mrs B claimed the report made the following errors:

• The highest part of the building measured from the rear: The Council claimed the difference was 0.2 metres with application 1. She argued this was incorrect.
• The single storey rear had a maximum height and lowest height: The Council stated the consented maximum height was 2.9 metres (3.3m under application 2) with consent at the lowest height being 2.4m (2.99-3.1m under application 2).

The Council visited the site and measured this extension after it was built. It was 2.99m from the finished ground level (the installed paving) and was now 1.2m above her fence. The Council accepted the measurements show the finished levels on site were raised. It could not say whether it was built 0.2m lower than her ground level, or sunken level. This was because it was difficult to decide.

The Council could not, therefore, say whether the site levels were significantly raised. It noted the consent for application 1 may not have been entirely accurate as the extension would only have been 0.5m above her fence which could explain the difference in heights and ground levels. The Council told her the heights as built would be acceptable in planning terms, given the typical height and distance from her boundary,

• It said the scheme would project 3ms beyond her rear boundary but extended 6m instead: The Council agreed the report was incorrect on this measurement but pointed out the building’s length and distance were the same as approved by application 1.

41. The Council accepted while the changes are in the report, they could have been set out more clearly.
42. Mrs B claimed these failures had a significant impact on her as information submitted by the neighbour said very little of the single storey extension being visible above her fence. Its roof slopes towards her boundary and was said to be 0.3 m higher than her fence at its closest point and 0.8m further back. She explained this was important as the planning inspector, when granting application 1, said this would screen most of the extension for her.
43. The Council accepted Mrs B’s claim about the development being about 0.8m higher than approved was most likely correct.

My findings

44. I found the following:

Application 1:

1. The plans show the ground level for the site being about 0.2 metres below the level of Mrs B’s land. They also show Mrs F’s fence, on her land, as 1.9 metres high. This means the combined height of the neighbour’s extension which would be screened by her fence would be 2.1 metres from her land.
2. According to the plans, what would be visible above Mrs B’s fence would be 0.3 metres of the extension at the lowest and closest point of the narrow flat roof which sloped away from the neighbour’s rear wall towards the garden area. At its highest point, about 0.7 metres of it would be visible. This application was approved by the Planning Inspectorate, not the Council.

Application 2:

3. The plans show the slope of the narrow roof had changed. It no longer sloped from the neighbour’s rear wall down towards the garden area but, sloped from the new side wall down towards Mrs B’s boundary.
4. It showed the lowest point of the roof at 2.9 metres and its highest, at the point furthest away from the boundary, at 3.1 metres.
5. This meant what would be visible over Mrs B’s fence would be 0.8 metres at the lowest part of the slope, rising to one metre at its highest.

As built:

6. When the Council measured the development as built it found the height of Mrs B’s fence, whose height remained the same, to the site’s ground level was now 1.91 metres. This was less than the 2.1 metres shown on previous plans. It meant at the lowest point, 1.08 metres of the extension would be visible and at its highest and furthest point, 1.19 metres would be visible. Both these figures are higher than shown on the approved plans for application 2.
7. I note the roof on this part of the extension changed with application 2. It is not a case of simply comparing the roofs given consent under both applications with what was built. The roof on application 1 sloped from the rear wall towards the rear garden area. The roof on application 2 sloped from the newly built side wall running parallel with Mrs B’s boundary down towards it.
8. On balance, while as already noted, there was a missed opportunity for the Council to have carried out a third site visit which might have identified the raised ground level on site, I am not satisfied this would have resulted in a different decision on application 2.
9. This is because the roof slope changed. While it is overall higher than that under application 1, it does slope up and away from the boundary between the two properties. The lowest point of the roof the Council granted consent for under application 2 is very similar to what has been built. The only real difference is the height of furthest point which is about 0.11m higher than granted. In addition, the differences between application 2 it approved, and the as built levels, were relatively small.
10. The Council accepted the report wrongly said the building extended 3 metres beyond Mrs B’s rear wall when in fact it should have said 6 metres. This incorrect information in the report was fault.
11. I am not satisfied this caused an injustice because the building was shown as 6 metres on the approved consent for application 1 which is how it has been built. I consider the Council’s apology for this error means there is no unremedied injustice.

Complaint e): complaint procedure

45. Mrs B is unhappy as it took the Council 69 working days to respond to her formal complaint with no updates during that time. She complained on 5 March 2023 and the Council responded on 15 June.
46. When she sent a second complaint, she said it took another 23 working days for it to respond and only then, after a councillor’s involvement.
47. Mrs B claims the Council failed to respond to her stage 2 complaint she sent in June and only stated it was not upheld on its online complaint page. It only sent its stage 2 response in September, after she complained to us.
48. The Council accepted it had not responded to her complaints within its own complaint processing timeframe. The Council apologised for this failure.

My findings

49. The Council’s complaints procedure was as follows:

• Stage 1: These are dealt with by the relevant service head or representative. Complaints are acknowledged within 4 days and responded to within 20 working days.
• Stage 2: The Council will respond to a request for a review of a Stage 1 decision within 20 working days.

50. The procedure also states some complaints are complicated and may take longer to resolve. If it cannot reply within the stated times, it will explain why and say what actions are being taken, along with an expected date by which it will provide a response.
51. I am satisfied the Council failed to process her complaint properly under its complaints procedure. It failed to meet timeframes or give her updates. I consider this caused her an injustice. This caused her distress in the form of frustration and the lost opportunity of having it resolved under the complaints procedure sooner.

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Agreed action

52. I considered our guidance on remedies.
53. I also considered the apology the Council gave her for its failure to deal with her formal complaint properly.
54. The Council agreed to take the following action within 4 weeks of the final decision on this complaint:
1. Send a written apology for failing to: record her concerns expressed during a telephone conversation; pass these concerns to the decision maker; carry out a third site visit following that conversation to check site levels.
2. Remind officers of the need to record concerns raised by neighbours making representations so these are available for the decision maker.
3. Remind officers of the need to clearly record any agreement reached with those making representations about site visits.
4. Review why her complaint did not follow the timescales set out in the complaint procedure, so these failures are not repeated in future.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I found the following on Mrs B’s complaint against the Council:

• Complaint a): fault and injustice;
• Complaint b): no fault;
• Complaint c): no fault;
• Complaint d): fault causing no injustice; and
• Complaint e): fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman