Summary: Mrs X complained about the Council’s handling of her neighbour’s retrospective planning application. We have not found the Council to be at fault. This was because there was no duty to reconsult on amended plans or conduct a site visit. Nor was the Council compelled to refuse the application because of an objection by the conservation officer.

The complaint

1. Mrs X complains about the Council’s handling of a retrospective planning application for development at neighbouring property.
2. She says the Council:
1. failed to consult on amendments to the scheme;
2. failed to carry out a site visit and so failed to properly consider the impact on neighbouring properties. Mrs X says this could not have been done properly via a desk top assessment;
3. disregarded the negative response from the conservation officer; and
4. failed to correct inaccuracies in the case officer’s report.
3. Mrs X says this has damaged public confidence in the planning system and has potential to allow future development on the estate that is not in keeping with the conservation area.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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. I read the documents provided by Mrs X and I discussed the complaint with her on the telephone. I considered the documents the Council provided in response to my enquiries and relevant law/guidance.
7. Mrs X and the Council 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

Relevant law and guidance

Planning requirements

8. The law says councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, views from a property or a reduction in its value. Material considerations include issues such as overlooking, traffic generation and noise.
9. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application. A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
10. Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission.
11. The courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

12. Councils will grant permission where they consider proposals are in line with relevant planning policies and they find no planning reasons of sufficient weight to justify refusal.
13. Councils are required to publicise planning applications.  The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a councils “Statement of Community Involvement”. In all cases the application must be published on the council’s website.

Conservation Areas

14. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
15. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications.

Non- material amendments

16. Developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
17. 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:
18. 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
19. the nature of the application remains the same, so the amended proposal is still substantially the same as the original.
20. 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

21. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
22. 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. This is referred to as a “retrospective application”.

What happened

23. What follows is a brief chronology of key events. It is not intended to describe everything that happened.
24. Mrs X’s home is located on a small housing estate within a conservation area. She has lived there for many years. More recently, Mr P moved into a property opposite Mrs X. He erected a structure to the side/rear of his property and rendered some of the external walls without planning permission. This was reported to the Council. An enforcement officer advised Mr P to seek retrospective planning permission for the side extension, rendering and other development that is not relevant to the complaint. Mr P was advised, informally, the structure should be reduced in height by 0.5 metres for consent to be granted.
25. Mr P did so in 2023. Consultation letters were sent to neighbouring properties, including Mrs X.
26. Shortly afterwards, Mr P advised the Council he was no longer intending to reduce the height of the structure. The Council considered the application on this basis. The Council did not reconsult on the revised plans because the changes were not considered to be material to the overall scheme.
27. Nine objections were made by neighbours, including Mrs X. The Council’s Conservation officer also objected to the development. These were referred to in the case officer’s report. The case officer explained why the development was acceptable in planning terms, despite the objections.
28. The application was approved by the Council.

Mrs X’s complaint

29. Mrs X complained to the Council. She believed the correct procedure had not been followed and the case officer’s report was inaccurate. In summary she said:

• there was no pre-existing rendering, as stated in the report;
• it was inaccurate to say neighbouring amenity would be unaffected. This was because the case officer had not viewed the development from Mr P’s direct neighbour’s property and so would not have been able to make such an assessment;
• the Council should not have disregarded the objection of the Conservation Officer;
• the wrong conservation area was referenced in the report;
• neighbours were not consulted on the scheme that was later approved; and
• a timber screen to the side of the structure was not included in the application.

The Council’s position

30. In response to both Mrs X’s complaint and Ombudsman’s enquiries, the Council stated it was not at fault for the following reasons.

• The conservation officer’s comments were not disregarded. They were considered alongside public benefits in accordance with relevant planning guidance.
• Neigbour impact was assessed using photographs taken by the enforcement and conservation officer’s site visits, together with images available online and measurements of separation distances. This allowed for an adequate consideration of impact.
• The law allowed Mr P to amend his plans after submitting his application. The Council decided further consultation was not necessary in the interest of fairness because the change in height was considered a non-material amendment.
• Mrs X was correct to point out two errors within the report relating to the conservation area and lack of existing rendering. However, these errors would not influence future decision making because any future application would be assessed on its own merits. For this reason, it was not necessary to retrospectively amend the case officer’s report.
• The high timber fence/screen was not included in the application and remained unlawful. Another planning application was submitted by Mr P about this fence.

Analysis

31. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Within this context, I will consider Mrs X’s separate areas of complaint below.

Failure to consult on amendments to the scheme

32. It was for the Council to decide whether to consult on amendments made by the Mr P between the time he made his application to when the Council made its decision. This is because government guidance says consideration should be given to, “whether, without consultation, any of those who were entitled to be consulted would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended”.
33. Whilst I understand why Mrs X feels the Council’s decision not to reconsult was unfair, it was one the law allowed the Council to make. The Ombudsman cannot interfere with this type of discretionary decision.
34. In any event, I am satisfied the Council was aware that neighbours would have objected to the amended proposals. This is because the majority objected to the structures even based on the reduced height of the structure.

Failure to carry out a site visit and properly consider the impact on neighbouring properties

35. Mrs X is unhappy the planning officer did not carry out a site visit and relied on photographs and online images to assess neighbouring amenity.
36. Council officers are not obliged to carry out site visits, including neighbouring properties, before deciding on a planning application.  Officers will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview. Here the case officer also the had the benefit of several photographs taken by colleagues.
37. In the absence of any law, guidance or Council policy compelling the Council to carry out a site visit, together with the Council’s explanation as to why a site visit was not necessary, I do not find fault.

Failure to take account of the negative response from the conservation officer

38. Mrs X strongly disagrees with the Council’s decision to grant planning permission, when the conservation officer objected to the development. The case officer’s written justification on this issue is detailed and reasoned.
39. Provided the Council had regard to all objections and material planning considerations, as was the case here, it is for the decision maker to decide what weight to give to the material considerations in each application.
40. The Council was not at fault.

Failure to correct inaccuracies in the case officer report

41. While we expect case officer’s reports to be accurate, I am not persuaded the errors identified by Mrs X affected the outcome of the application and are significant enough to justify a finding of fault by the Ombudsman. I also accept the Council’s position that the report would not set a precedent for future applications and so correction of the report is not essential.

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Final decision

42. I have completed my investigation. I have not found the Council to be at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman