Summary: We do not uphold this complaint, which asked us to consider if the Council was at fault for approving changes to a development next door to the complainant. We found no fault in the Council treating the changes as a non-material amendment to approved plans, having considered their impact on the complainant’s home.

The complaint

1. Miss E complained the Council approved changes to a re-build of a neighbouring property as a ‘non material amendment’, which meant it did not consult her. Miss E said the changes negatively impacted on the setting of her property and impacted her privacy. She said the Council did not properly consider those impacts and should not have approved the changes without consulting her. Miss E also said the development as built was taller than on the approved plans, having a further negative impact.
2. Miss E said as a result the Council had therefore approved development that impacted negatively on her, because of its appearance and the loss of privacy. She also said the development had a negative impact on the village where she lives.

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The Ombudsman’s role and powers

3. 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)
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(i), as amended)

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How I considered this complaint

5. Before issuing this decision statement I considered:

• Miss E’s written complaint to the Ombudsman and supporting information she provided;
• correspondence she exchanged with the Council pre-dating our investigation:
• information available via the Council’s website about the planning application at the crux of this complaint;
• any relevant national or local planning guidance.

6. I also gave Miss E and the Council chance to comment on a draft version of the decision statement and / or provide further evidence they considered relevant to its content. I considered their responses to the draft decision statement, before finalising this statement.

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What I found

Relevant legal and administrative considerations

7. After a local planning authority has approved planning permission, a developer may want to amend their plans. Section 96A of the Town and Country Planning Act 1990 allows a developer to apply to make a ‘non material amendment’ application.
8. The Government does not provide a definition of what a ‘non material amendment’ is. It says: “this is because it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another” (see Flexible options for planning permissions - GOV.UK).
9. If a local planning authority agrees an application is for a ‘non material amendment’ then it does not have to publicise it. Government guidance says the authority “must have regard to the effect of the change” proposed.
10. The Council publishes its own statement of community involvement. This says it will consult residents whose property adjoins a development site, when it receives an application for planning permission. Residents have the right to object to development and the Council will consider those objections before deciding whether to approve it.
11. However, an appendix to the statement explains the Council will not normally publicise (and therefore consult) on non-material amendments to planning permissions.  

The key facts

12. Miss E lives in a listed building in a village location in the Council’s area. To the east of her home lies a detached property of much later construction. In 2020 the Council gave planning permission for an extension to that neighbouring property. Then in 2021 the Council gave planning permission for the developer to demolish and rebuild the neighbouring property, using the same footprint and plans as the proposed extended building.
13. The plans proposed an extension on the western side of the building which faces Miss E’s property. The approved plans showed a single storey rear-extension with a pitched glass roof. They also showed the extension built from stone materials, to match local buildings. The extension would join on to the two-storey main body of the house, which has several west facing windows at ground and first floor level.
14. In 2023 the developer made an application for a non-material amendment to the approved plans. The changes consisted of:

• replacing the pitched glass roof on the extension with a flat roof;
• installing a strip rectangular window at a high level in the extension;
• using brick to build the extension rather than stone.

15. The Council approved these changes as a non-material amendment. Its planning officer said the changes “would not materially change the approved development and the rear of the property and it would remain in keeping with the host dwelling and surroundings”. As the Council considered the changes non-material it did not consult Miss E.
16. Miss E did not learn of the changes until June 2023. When she did, she made a complaint to the Council, in part because it had not consulted her about the changes. Miss E argued the Council should have considered changes to the development material, because:

• of the building materials used. Miss E considered the brick inappropriate because of the village location, the nearness of the development to her property (a listed property) and given public views. Miss E said the use of brick also made the extension more visible to her;
• the window in the extension would impact on her privacy; and
• they were contrary to national and local planning policies.

17. Miss E also suggested the developer had built the extension taller than on the approved plans.
18. In September the Council received correspondence saying Miss E had withdrawn her complaint. But she clarified within a few working days this was not the case and wanted to proceed.
19. In October 2023 the Council replied to Miss E’s complaint. It said:

• the original planning application had considered all relevant national and local policies;
• the brick facing wall was in a relatively obscured part of the site and the previous building on the site had brick on that side;
• the developer had kept largely the same design and footprint as the previously approved development. It noted the lesser height of the extension and that the window would be at “high level”. It said “in most instances” the developer could install a window like this without applying for planning permission;
• so, for these reasons it considered the application non-material and so it had not consulted in line with its statement of community involvement;
• but that it would arrange for an enforcement officer to check the height of the build.

20. Miss E was unhappy with that reply and asked for the Council to consider her complaint at Stage 2 of its complaint procedure. In its reply the Council apologised for not answering her initial complaint sooner. But said that it could not add to the explanation in its October 2023 reply. It said its enforcement officer had recently visited and found the building under construction closely matched that approved with a lower height of a few centimetres. It said they measured the height of the window at just under two metres from the ground. The Council said there no grounds that justified taking enforcement action.

My findings

21. I considered this complaint hinged on the Council’s decision to approve the changes to the development as a non-material amendment. If it had not agreed that, then in would have required the developer to make a new planning application, and it would then have consulted Miss E. However, the Council does not consult on non-material amendments. The logic being, that if an application is non-material, it should not have a noticeable impact on neighbours or its surroundings when compared with what the Council has already approved.
22. As I explained above, the Government does not prescribe criteria for what a non-material amendment is. The key consideration for the Council will be to assess the impact of whatever amendment or amendments the developer proposes. If an amendment will have a noticeable or significant impact on neighbours, it will not be ‘non material’.
23. I explained above it is not our role to question the judgement exercised by the Council so long as it has not taken a decision with fault. I wanted to see evidence therefore the Council had only taken relevant matters into account when taking this decision, and not anything irrelevant.
24. I found the planning officer’s report approving the non-material amendment brief. But it contained enough reasoning to show the officer thought about the visual appearance of the changed design to the extension. Their decision referred to how it would impact on the main dwelling, its ‘surroundings’ and ‘the area’.
25. I would have preferred if the report had addressed directly how the changed appearance of the extension would look from Miss E’s property. But on balance, I considered the reference to the extension’s ‘surroundings’ enough to show this was in the mind of the planning officer. This was because they distinguished this from the ‘area’, which I took as a reference to the development site sitting within the village.
26. I also took account of the additional explanation the Council provided in its reply to Miss E’s complaint. This drew attention to:

• the lowered height of the extension;
• the height of the window in the extension. I noted that while it gave a view towards Miss E’s property, its use for such would be inevitably limited given its height;
• the use of brick materials in the pre-existing building and the limited possibility of public views of the brick facing wall. It also noted many brick buildings nearby.

27. Miss E kindly sent me photographs of the extension from within her home, her garden and public views from outside. None of these were enough to lead me to think the Council was wrong in how it drew attention to the matters above. The photographs show Miss E has a very limited in view into the extension and I assume its occupiers will have a very limited view outward, towards her house. I did not consider this would be significantly different had the development proceeded with a glass roof as originally envisaged. So, I did not consider the Council at fault for treating the developer’s decision to replace the glass roof with a flat roof and the high level window instead, as non-material.
28. I also considered the public views of the extension were as the Council described, largely obscured, with only one wall clearly visible. I also noted the original planning permission did not condition use of local stone for the extension, but the use of materials “compatible with the surroundings”. The Council explained to Miss E why it considered brick compatible. So, I also did not consider it at fault for treating the developer’s decision to change the building materials as non-material.
29. I also agreed with the Council that its 2021 planning permission had considered the wider case for re-development of the site against national and local planning policies. It agreed firmly with the principle of the development, something not affected by the non-material amendment. So, this was not something the Council could revisit in 2023.
30. I noted the Council delayed in answering Miss E’s complaint made in July 2023. It also delayed in sending its enforcement officer to visit the site when Miss E questioned its height.
31. However, I did not consider the Council needed to do more than apologise for any delay, which it had done. I considered no injustice arose from the delay in the enforcement officer’s visit, given they found the development built nearly identically to how the Council approved it.
32. In response the draft decision Miss E asked me to examine more closely the Council’s enforcement visit. She found the officer’s notes of their visit hard to follow. I could understand why, as there were some discrepancies between how the officer had annotated the approved drawings and measurements in their notes. But the Council provided further comment and I could find no evidence that led me to think the officer had not measured the extension accurately. Particularly when it came to its height next to the boundary of Miss E’s property. So, I found no fault in the consideration by the Council given to this question and no reason for me to investigate this point further.

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Final decision

33. For the reasons set out above I therefore completed my investigation finding no fault by the Council causing any injustice to Miss E.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman