The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s decision to accept an application for a non-material amendment to a planning application for a site behind his home. We have not seen enough evidence of fault in the Council’s decision to accept the information, nor in the way it considered and approved it.
The complaint
Mr X complains the Council misused the Section 96A non-material amendment process to approve a change that materially altered the approved layout, boundary position and function of a landscaped buffer zone, reducing separation distances and causing significant amenity harm to his home.
He also says the Council failed to properly assess materiality, did not meaningfully engage with relevant legal principles raised prior to the decision, and relied on local policy reasoning without addressing whether the amendment altered the effect of the original permission.
The Ombudsman’s role and powers
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: there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Amendments to planning applications Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
If the Council decides the changes are ‘material’, it may require the whole or part of the process to begin again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process under section 73 the Town and Country Planning Act 1990, 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. 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.
What happened The Council received a non-material amendment application for a development close to Mr X’s home, which was being built with planning permission. The application included boundary changes to the plot behind Mr X’s house.
There is no legal requirement for councils to conduct statutory consultation or publicity for non-material amendment applications, as they would for full planning applications. However, in this case, the Council accepted Mr X’s comments on the application. Therefore, I do not consider that Mr X has suffered any significant injustice just because the Council accepted the application as a non-material amendment, and not a full planning application.
The Planning Officer’s report on the proposal shows the Council considered Mr X’s objections and noted the relevant national and local planning policies. The Officer sets out why they consider the application is acceptable. The Council approved the application under its scheme of delegation. Having followed the correct process, this is a decision it is entitled to make.
I understand Mr X says the Planning Officer’s report contained errors. The Council acknowledged the Officer included a reference to a similar boundary arrangement between another house in Mr X’s road and the new development. However, the house number given was incorrect. The Council has confirmed this had no impact on the consideration of the application.
When considering planning officer reports, 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 on 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.
Having reviewed the planning officer’s report on the proposal, I am satisfied the Officer understood the scheme as did the senior officer who approved the application.
Final decision
We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the way the Council accepted and considered a non-material amendment application. Nor do we consider Mr X suffered a significant personal injustice because of the Council’s decision to accept the proposal as a non-material amendment.
Investigator's decision on behalf of the Ombudsman