The Ombudsman's final decision
Summary: Mrs B complained about the process of adopting the Council’s Core Strategy and the Site Allocations Plan. We have not investigated this aspect of the complaint because the matters in question took place too long ago. Mrs B also complained about the way the Council handled a planning application for housing development on public open space next to her property and the appropriation of the land. We found no fault on the Council’s part.
The complaint
Mrs B complains about the process of adopting the Council’s Core Strategy in 2017 and the Site Allocations Plan in 2018, particularly that the Council did not prepare an open space assessment.
She also complains about: the way the Council handled an application for planning permission for a development on public open space next to her property; and the way the Council handled the appropriation of the land and its decision to approve the business case and commissioning plan for the procurement of a development partner for residential development on the land.
What I have investigated I have investigated Mrs B’s complaints about the way the Council handled the planning application; the appropriation of the land; and the decision to approve the business case and commissioning plan.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) If we are satisfied with a council’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) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I have considered all the information provided by Mrs B together with information available on the Council’s website and viewed a recording of the planning committee meeting.
Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative background Planning law and guidance Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
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 or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and protection of ecological and heritage assets.
Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
Appropriation Appropriation is the statutory procedure to change the purpose for which land is held from one statutory purpose to another. Councils have a general power to appropriate land: Which belongs to that council Which is no longer required for the purpose for which it is held for any other purpose for which the Council is authorised by statute to acquire land.
Background
Mrs B lives next to an area of Council owned public open space which she and other residents use regularly for recreation.
In 2018 the Council adopted the Sites and Policies Plan Part 2: Site Allocations Plan (‘the Site Allocations Plan’). This earmarked the land for residential development.
In 2020 the Council, in its role as landowner, submitted a planning application to build houses on the land. The Council’s planning team notified neighbouring properties of the application.
The case officer prepared a report for the planning committee which set out relevant planning policies, discussed the material planning considerations and summarised the objections received. The officer recommended approval of the application.
The application was considered by the planning committee which granted planning permission subject to conditions.
The Council then followed the statutory appropriation process and the Executive Member for Assets and Capital Delivery (‘the Executive Member’) decided to appropriate the land for development.
The Council then voted on a business case and commissioning plan for the procurement of a development partner for residential development on the land. The Council resolved to approve the plan.
The Partnerships, Corporate Organisation and Overview Management (PCOM) Scrutiny Panel called in the appropriation decision. The panel discussed the matter at length and decided to refer it back to the Executive Member to reconsider the matter. Having done so, the Executive Member re-confirmed his decision and prepared a further detailed report explaining the reasons for this decision.
The planning application Publication Mrs B says the Council failed to adequately publicise the planning application because: it only notified neighbouring properties despite the land being more widely used; the advertisement in the local newspaper was only three lines long; only one site notice was put up and this was at the least used entrance to the land.
Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the Council’s own policies. In all cases the application must be published on the Council’s website. In this case, the requirement was also for publication in a local newspaper, and either a site notice or neighbour notification.
The Council exceeded these requirements as it notified neighbouring properties directly, published an advertisement in a local newspaper and put up a site notice. The location of the site notice is a matter for officers’ professional judgement. The only requirement is that it should be adjacent to the affected land.
Mrs B says members of the public had no access to the detailed plans because the local library and town council offices were closed because of COVID-19 lockdown restrictions. So, residents who did not have their own computer were denied access to the plans and relevant documents.
I find no grounds to criticise the Council in this regard. It was obliged to continue processing planning applications despite COVID-19 restrictions and took steps to resolve the problem by sending hardcopies of the plans to residents. In any event, residents were aware that the proposal was to build houses on the public open space.
The case officer’s report Mrs B says the officer’s report only contained a brief summary of the objections received. There are no grounds to criticise this. The only requirement is for the report to summarise comments from members of the public.
Mrs B says the case officer’s report was misleading because it incorrectly stated that the Council had prepared an open space assessment to inform the Site Allocations Plan when the site was allocated for residential development in 2018.
As explained at the end of this document, I have not investigated whether the Council prepared an open space assessment in 2018. The officer’s report correctly states that the land was set aside for residential development in the Site Allocations Plan. That plan was adopted by the Council in 2018 and the principal of residential development on the land was established.
Mrs B says the officer’s report was also misleading because it stated, “additional public open space and sports facilities are planned to be provided through CIL payments” but the Council’s CIL Regulation 123 List states that neighbourhood open spaces are to be delivered through planning obligations, not CIL payments.
Although the List states that ‘neighbourhood open spaces’ are not funded by CIL payments, it says other types of public open spaces including sports facilities, public gardens and community parks are funded by CIL. So, I do not consider Members were misled by this statement.
Mrs B says the report misled Members by incorrectly stating that the Local Plan has been adopted when it has not. Mrs B’s understanding is incorrect. The Core Strategy was adopted in April 2012 and the Site Allocations Plan was adopted in April 2018. The Council is in the process of preparing a new Local Plan which will replace these documents in due course.
Mrs B says the officer failed to refer to a boundary issue and the fact that the proposed development would adversely affect the value of neighbouring properties. Neither of these issues are material planning considerations so the case officer was not at fault in failing to refer to them.
In conclusion, I find no grounds to criticise the officer’s report which was detailed and set out relevant planning policies, residents’ objections and considered the relevant material planning considerations.
Mrs B says an addendum to the report was posted online on the day of the committee meeting so there was no opportunity for the public to comment on it. There are no grounds to criticise this. It is normal procedure for officers to prepare an addendum report at the last minute to ensure all up-to-date information is available for Members at the meeting. The report included additional information from the applicant and additional third-party comments together with comments from the officer on the points raised. The purpose of the report is purely to update Members. There is no requirement for members of the public to be given an opportunity to comment on it.
Site visit Mrs B says no official site visit took place because of COVID-19 restrictions.
There are no grounds to criticise this. Council officers and Members are not obliged to carry out site visits before deciding a planning application. They 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. In any event, three Members stated at the committee meeting that they had visited the site.
The committee meeting Mrs B says the application should have been deferred until the full planning committee could meet in person.
The Council held the meeting virtually because of COVID-19 restrictions. This was in line with Government guidance at the time. Following guidance from the National Planning Advisory Service on how to run planning committees during the pandemic, the Council decided that only 13 Members should be present and this was determined in accordance with the political balance of the Council. There are no grounds to criticise this. The local ward was well represented as two Members of the committee were local ward councillors. In any event, there is no requirement for every Member of the planning committee to attend meetings.
Mrs B says the local ward councillor was prevented from voting on the application.
The local ward councillor referred the application to the planning committee. He was entitled to speak at the meeting and did so. But he was not entitled to vote as he is not a Member of the planning committee. Only Members of the planning committee can vote. Two other local ward members substituted onto the committee and were able to vote on the application.
Mrs B says only one person was able to speak in favour of the development and one against and there was no opportunity to comment on the officer’s statement in favour of the application.
There are no grounds to criticise this. This is normal procedure. One person is allowed to speak in favour of the application and one against. Each person will only be allowed to address the committee for three minutes and there is no opportunity to respond.
Mrs B says there was a lack of impartiality at the meeting. She says a large number of officers were present and allowed to say whatever they considered necessary to help Members decide the application but no such facility was awarded to members of the public.
The Council has explained that Corporate Services officers are present at all meetings to provide procedural and legal advice and technical support. In addition, planning officers were present to present the application and provide an overview of wider planning issues.
Officers’ role at the committee meeting is to advise Members, so there are no grounds to criticise them for doing so. They are allowed to guide Members to ensure any decision reached is defensible on appeal.
Mrs B says three of the Place Directorate officers, who were representing the Council as applicant, took a very active and influential part in the meeting: introducing and talking through the proposal, answering questions, rebutting objections and concerns and asking to speak without invitation.
Officers are entitled to request to speak if they wish to clarify a point and it is for the Chairman to decide whether to agree to their request. It is also appropriate for Members to ask officers to clarify issues. Having watched a recording of the committee meeting, I have no concerns about lack of impartiality.
Mrs B says officers failed to mention the appropriation process at the meeting. There are no grounds to criticise this. This is a separate process which is not relevant to consideration of the planning application. Members were aware that, by approving the application, there would be loss of public open space. They were also aware of residents’ concerns about this, both from the officer’s report and a resident’s representations which were read out at the meeting.
Mrs B says one of the committee Members had predetermined his decision because he said he would have to leave the meeting at 4 pm but, if the vote was taken before then, he would be voting in favour of the application. The meeting had been in progress for some time by this point and there had been a lengthy debate about the issues. Having heard the debate, the councillor was entitled to reach a view on the matter. Predetermination is where a Member has decided how to vote on the matter prior to the meeting before hearing any of the arguments. That was not the case here.
Mrs B says some councillors left the meeting so there were only eight of the original 13 left by the time the vote was taken. This is incorrect. There were 12 Members present at the end of the meeting. Seven voted in favour of the application, four voted against and one abstained. Even if the final councillor had remained until the end of the meeting this would not have affected the overall decision as one vote either way would not have made a difference to the outcome.
Conclusion
The land in question was set aside for residential development in the Local Plan. So, the principle of development was already established. It was for Members to consider the planning application and decide whether to grant planning permission.
Planning law requires that planning permission will be granted unless there are material planning grounds on which a refusal can be based. The role of Members of the planning committee is to weigh the respective merits of the relevant factors in the planning application and reach a decision based on their view of the balance of those merits. The fact that there are objections does not necessarily mean an application should be refused.
I am satisfied the Committee properly considered the application. Members heard residents’ objections and debated the application at length. As the Council’s decision was reached through proper process, there are no grounds to question the merits of the decision.
The appropriation decision Mrs B says notification of the appropriation process was only received by nine residents and “extremely small” advertisements were placed in the local press on two occasions. She says no other public awareness measures were taken by the Council.
There are no grounds to criticise this. The Council must give notice of its intention to appropriate the land by placing an advertisement in a local newspaper for two consecutive weeks. It must then consider any objections received. The Council complied with this. There is no requirement as to the size of the advertisements and no requirement to directly notify residents.
Mrs B says the notification letter included the statement “in making the decision, the Council must determine whether the land is no longer required for its current purpose. However, the authority is entitled when doing so to seek to strike the balance between comparative and potentially competing public interests: between the need for one use of the land and another, according to its judgement of the balance of wider community needs and interests”. She says this shows the Council had already reached a decision.
I disagree with Mrs B’s view. I am satisfied that, by making this statement, the Council was simply explaining the requirements for making a decision to appropriate land.
Mrs B says the Council proceeded to make an appropriation decision and ignored the NPPF requirement for an open space assessment. However, there was no requirement for an open space assessment because the land had already been allocated in the Local Plan for housing development.
Mrs B says that, under the cover of COVID-19, decisions were made behind closed doors. However, the Council is only required to adopt a formal resolution to appropriate the land. It is normal process for this decision to be made by either the relevant Executive Member or an Executive meeting. In either case, there is no requirement for a public meeting. The Executive Member acted appropriately by preparing a detailed report explaining the reasons for his decision to appropriate the land.
The decision was subsequently called in by the PCOM panel who referred it back to the Executive Member for reconsideration. The Executive Member re-confirmed his decision and prepared a further detailed report explaining the reasons for this.
I am satisfied the Council followed the proper process in reaching the decision to appropriate the land. In the absence of administrative fault in the process, there are no grounds to question the decision.
The business case and commissioning plan Mrs B says the business case and commissioning plan (BCC Plan) for development of the land was put before full Council before the PCOM panel meeting and councillors were asked to ‘rubberstamp’ a business case in in advance of the meeting.
The report to full Council recommended approval of the BCC Plan for the procurement of a development partner for residential development on the land. The proposal was that a procurement process would be carried out reporting back to the Executive with a recommendation as to the preferred development partner. The report clearly stated the recommendations were subject to the appropriation decision on the land and, if a decision was made not to appropriate the land for development, the report would be withdrawn.
The minutes of the full Council meeting also show that the Chairman explained that the appropriation decision had been taken but was subject to call-in and that any changes to that decision may result in the need for the Council’s decision to be reconsidered. So, there are no grounds to criticise the Council for continuing with the process. Members were aware of the situation and, contrary to what Mrs B says, the later final appropriation decision was not a foregone conclusion.
Mrs B says councillors were given very little time to absorb the documents before being asked to vote. However, councillors would have been given the documents prior to the meeting so would have had time to consider them. If any Member felt they needed more time to consider the information, they could have requested that the meeting be deferred.
Mrs B suggests the vote was unfair because the report stated, “the option not to develop/deliver the proposed scheme has been discounted”. There are no grounds to criticise this. The report went on to explain the reasons for this statement including that: the land had already been set aside in the Local Plan for housing development; planning permission had been granted; and failure to deliver would increase the gap in the Council’s housing supply which would need to be met elsewhere.
Final decision
I do not uphold Mrs B’s complaint.
I have completed my investigation on the basis that I am satisfied with the Council’s actions.
Parts of the complaint that I did not investigate I have not investigated Mrs B’s complaints about the adoption of the North Somerset Core Strategy in January 2017 or the adoption of the Sites and Policies Plan Part 2: Site Allocations Plan in April 2018.
The events in question took place too long ago. We will not usually investigate matters which took place more than 12 months before someone complained to us.
Investigator's decision on behalf of the Ombudsman