The Ombudsman's final decision
Summary: We found no fault in how the Council decided to grant planning permission for development near Mr X’s home.
The complaint
Mr X, for himself and his neighbours, complained about the Council’s handling of three planning applications for development on a site near their homes. Mr X said the Council made significant errors in processing and assessing the applications, which meant its planning decisions were flawed.
Mr X wanted the Council to ensure it did not repeat its errors in dealing with any future planning application to develop the site. Mr X also wanted the Council to agree it would not consider its previous planning decisions set a precedent for development of the site.
What I have investigated I have investigated Mr X’s concerns about the Council’s handling of a 2021 planning application for the site that led to a grant of planning permission. I have not investigated two other planning applications for the site for the reasons given in paragraphs 44 to 46.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1), 26A(1), and 34(3), 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) We may investigate complaints made on behalf of someone else if they have given their consent. Fifteen of Mr X’s neighbours have given their written consent for him to represent them in complaining about the Council’s handling of three planning applications near their homes. (Local Government Act 1974, section 26A(1), as amended) 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)
How I considered this complaint
I: considered Mr X’s written complaint and supporting papers; talked to Mr X about the complaint; considered the complaint correspondence between Mr X and the Council; considered planning information about the site available on the Council’s website; and shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.
Background
Most development needs planning permission from the local council. After receiving a completed planning application, councils must publicise it so people may comment on the proposed development. The publicity needed depends on the development proposed and policies in the council’s statement of community involvement (SCI). But councils must publish all applications on their websites. Here, the law required the Council also to publicise the application (‘the Application’) by either: displaying, for not less than 21 days, a site notice in at least one place on or near the application site; or sending a letter to the owner/occupier of properties adjoining the application site and giving them 21 days to comment on the development.
The Council has an SCI and a ‘Neighbourhood notifications and consultations’ leaflet that set out its arrangements for publicising applications. The Council’s policy is to display a site notice and send letters to all properties directly adjoining the application site. The Council will also publish all comments received on its website, but it will not correspond about the merits of the application.
Councils must consider each application on its own merits. They must also make their planning decisions in line with relevant policies in their local plans unless material considerations indicate otherwise. Material considerations concern the use and development of land in the public interest. Examples of material considerations are overlooking, traffic generation and noise. Private matters, such as the developer’s behaviour or property values, are not material considerations.
General planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.
A senior council officer acting for their council will decide most planning applications. But councillors at their council’s planning committee decide some applications. Each council will set out which applications their planning committee must and may decide. The Council’s arrangements allow a councillor to ‘call in’ an application that officers would otherwise decide. Here, local councillors called in the Application for decision by the Council’s Planning Committee (‘the Committee’).
A planning case officer will often prepare a report on the proposed development whether officers or councillors are to decide the application. A report draws on and summarises planning information about the proposed development, which information will be available to the decision maker. The report will usually refer to relevant planning policies and other material planning considerations affecting the proposals. It will also set out the case officer’s assessment of the main planning issues and their recommendation to grant or refuse planning permission. Here, a planning case officer prepared a report about the Application (‘the Report’), which senior officers considered before presenting it to the Committee. Councillors do not have to agree their officers’ recommendation but may reach a different view on weighing and balancing the planning issues.
Neither council officers nor councillors need to visit the development site before deciding a planning application. However, the Council’s normal practice was for councillors to together visit sites before considering applications at the Committee. When processing the Application, the Council had temporarily stopped such group visits due to COVID-19 but encouraged councillors to individually visit and view sites from the roadside.
Most councils have arrangements for people to speak at their planning committee meetings. Where this happens, both the planning applicant (or their agent) and an objector/s may speak usually for about three to five minutes. Here, the Council’s arrangements give the applicant and objectors five minutes to speak. Both the applicant’s agent and Mr X spoke at the Committee about the Application.
Consideration Introduction For most people, the place where they live is important to them. Here, Mr X made the strength and depth of residents’ concerns about development of the site clear. However, we are not an appeal body and so we do not take a second look at a planning decision to decide if it was wrong. Instead, our role is to consider whether the Council acted with fault in reaching its decision. This means we look at how the Council makes a decision. If we consider it followed the correct process, we cannot question the resulting decision.
As a publicly funded body we also must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether a council has acted with fault. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council did. So, we cannot always respond to complaints in the detail people might want. Here, the information provided by Mr X was substantive and detailed. While I carefully considered all that Mr X said, this statement does not, and did not need to, address every point raised in the complaint. My focus was whether the Council’s handling of the Application fell below acceptable administrative standards, so fault brought its decision to grant planning permission into question.
While, understandably, of local significance and importance, in planning terms, the Application was for ‘minor development’. The Application did not seek to change the commercial use of the site. The Application proposed operational development, that is, installing equipment linked to the commercial use. The Application also included development already given planning permission but not yet started on site. The Application form also proposed a change in opening hours for the commercial use. The Council therefore had to consider the planning impact of the proposed operational development and change to opening hours. It also needed to consider whether there had been any relevant changes to planning policy that might justify refusing planning permission for the previously approved but unimplemented development on the site.
Visits, publicity and representations Mr X said the Council failed to carry out an adequate site inspection. The evidence showed plans and photographs of the site were available to the Committee at their meeting. Mr X had also provided site photographs, which the Council sent to councillors before the meeting. However, the Committee had temporarily stopped site visits during the COVID-19 emergency. That was a decision for the Council to take. As the Council did not have to visit a site before deciding an application, I could not find the Council at fault on the issue of a site visit.
Mr X was also concerned the Council’s letter to residents telling them about the Application did not refer to the proposed change in opening hours. He asked the Council to reissue the letters with opening hours included but said it refused to.
The Application form did not, in providing a description of the proposed development, refer to new opening hours. That information appeared in response to the question in the Application form about opening hours. I recognised opening hours were important to local people. However, the publicity letter should provide a summary of the proposed development, taken from the application form description. People receiving the letter can then decide from that summary description if they wish to seek more, detailed, information about the proposals. The Report, in summarising peoples’ comments, also showed residents were aware of the change to opening hours. I did not find the wording of Council’s letter meant it fell below acceptable administrative standards in publicising the Application. I found no fault here.
Mr X also had concerns about the Council’s handling of residents’ comments about the Application including delays in uploading some to its website. Councils do not have to put residents’ comments about planning applications on their websites. But the Council’s arrangements for processing applications says, subject to any legal restrictions, it will do so. However, the Council will need to check comments and remove, for example, personal information and any defamatory and abusive material, before publication. So, there will a ‘delay’ between making a comment and its appearance on the website. Here, the Council also said it had experienced a ‘glitch’ that delayed publication of some comments.
People have a right to comment on planning applications and to have a council consider such comments where they concern planning and land use matters. I saw no evidence that any delay in publicising any representations affected the Council’s decision making. So, while I recognised seeing their representations on the website might have reassured residents and they might have wanted to read what other people had said, I found no fault here.
Errors, omissions and inaccuracies in the Report Mr X raised many concerns about errors in and omissions from the Report. The Council accepted the Report had contained errors and pointed to its ‘update’ document sent to councillors two days before the Committee met. The Council also corrected a further Report error at the Committee meeting. It is unfortunate there were errors in the Report. However, as those errors were corrected before the Council made its planning decision, I had no grounds to find fault here.
Mr X also questioned the accuracy of statements in the report, including about the layout of the ground and first floors of the site building. The Council had accepted there were some inaccuracies in its description of the layout and had apologised to Mr X. The Council pointed to the information before councillors at the Committee including plans showing the existing and proposed layout of the site building.
The layout references in the Report could have been clearer and it is unfortunate the wording used was not fully accurate. However, the Report was but part of the information available to councillors and included a link to the Application information on the Council’s website. The Committee’s minutes also said plans and photographs were shown at the meeting. The minutes also showed a local councillor commented on one of the layout issues. The layout issues also concerned the development previously given planning permission by the Council but not yet started on site. Having considered the information before councillors, I did not find the wording of the Report was likely to have substantively misled councillors and or affected the planning decision.
Parking and opening hours A key concern for Mr X and his neighbours was on street parking and how the Application’s proposed change in opening hours would affect parking. Mr X said the Report did not set out parking comments from reports on other planning applications for the site. Mr X said the Council had ‘airbrushed’ parking issues in the Report, particularly evening parking problems. So, officers deprived councillors of information that would have supported a refusal of planning permission.
The Council said it did not need to ask the applicant to justify the change in opening hours. It had considered other nearby commercial premises and found similar closing times to those sought in the Application. So, the proposed opening hours were not out of character for the permitted use or the area.
The operational development proposed by the Application would be unlikely in itself to affect parking. The Council had also found no grounds, including highways and parking, to refuse planning permission for the development that had not yet started on the site. And the Council’s planning policies about parking had not changed since it approved that unimplemented permission. However, the Council consulted the county council as local highway authority on the Application. That was a suitable step to take as the highway authority had legal responsibilities for local roads, for example, road safety and traffic management. The highway authority had no objections to the Application but asked for a condition on any planning permission. (The permission granted by the Council included the condition.)
The Report summarised the highway authority’s consultation response. The Report also included residents’ concerns about parking provision and referred to ‘duplicating’ parking provision, access safety concerns, and existing on street parking demands. And while not quoting from reports assessing earlier development proposals for the site, the Report provided reference numbers of seven previous applications. The Report’s summary of peoples’ comments also included a subheading about previous applications. The minutes of the Committee’s meeting showed Mr X referred to parking comments made in earlier reports. A local councillor also raised parking issues at the Committee meeting. Residents’ access and parking concerns were therefore before the Committee when it was making its planning decision. The Council’s view about the proposed opening hours being in ‘character’ (see paragraph 29) also had merit and were sustainable on planning grounds. I saw no grounds to find fault by the Council in its handling of parking issues and opening hours.
Noise Mr X said the Council had not followed the advice of its environmental health team (‘the EHT’). Mr X said neither the Report nor resulting planning permission included the ‘general noise condition’ asked for by the EHT. The Council’s planning officers consulted the EHT on planning applications for the site, including the Application. The Council said the EHT had recommended the general noise condition before they had considered technical information about the proposed operational development. And the Report and later planning permission included the conditions recommended by the EHT after they considered the technical details.
The Council should take account of comments it receives from its EHT about development proposals although it does not have to accept and apply them. Here, the Report summarised comments made by the EHT and referred to a noise report submitted to support the Application. The Report also included noise in its summary of peoples’ comments on the Application. The Report referred to noise impacts for both neighbouring properties and the site building. When Mr X spoke at the Committee’s meeting, he also commented on noise from equipment like the operational development proposed in the Application. The issue of noise was before the Committee. I could not therefore find the Council failed to consider noise from the proposed development in reaching its planning decision.
Other matters and overview Mr X raised many other concerns about the Report, for example, how it dealt with design, climate change and waste storage. Other concerns included a councillor’s comment at the Committee meeting, the wording of planning conditions, and councillors changing a condition.
A report assessing an application does not need to address every possible planning consideration but should address the key issues. Here, the Report focused on the principle of the proposed development, its impact on residents’ amenities, its visual and heritage impacts, and highway issues. But it referred to other matters too, including the Council’s design guide and climate change planning policies. The Report also commented on residents’ concerns about waste storage and viability of the commercial use The Report also addressed residents’ concerns about a possible future change in use of the site. While Mr X may have found the Council’s consideration of the issues inadequate, it did take them into account in reaching its decision. I therefore had no grounds to find fault.
The Report was written primarily for consideration by councillors on the Council’s Committee. They will be familiar with the Council’s local plan and their role in balancing and weighing what may often be conflicting policies and planning considerations. It was the Council to decide what, if any substantive, weight to give any policy or whether any non-compliance justified a refusal of planning permission. While the initial errors and unclear language were regrettable, the courts have found that officer reports on applications should not be subjected to hypercritical scrutiny. Neither do they merit challenge unless the overall effect of a report is to significantly mislead the decision maker on key material planning issues. The courts have also considered comments made by councillors at committee. They have taken the view it is the general tenor of the discussion rather an individual councillor’s views, let alone the precise terminology used that is relevant.
I recognised Mr X and his neighbours’ dissatisfaction with both the accuracy and detail of the officers’ assessment of the Application and councillors’ discussions at the Committee. However, the Application was for minor development. And, while not perfect, read as a whole, the Report adequately and proportionately addressed the key planning issues for deciding the Application. I did not find the points raised by Mr X in his complaint, either individually or cumulatively, were likely to have affected the Council’s decision to grant planning permission. The Council publicised the Application, took account of planning policies, assessed key considerations and considered residents’ views. Mr X also took the opportunity, representing objectors, to speak at the Committee, where councillors discussed the proposals before deciding the Application. I therefore found no grounds on which to question the Council’s decision.
Complaints handling The Council has a two stage complaints procedure, after which it refers people to the Ombudsman. It says it will respond at both stages within 10 working days. And it will tell people they have 28 days to continue their complaint if they are dissatisfied with the stage 1 response. Mr X said the Council failed to comply with the procedure including delay sending its stage 1 and 2 responses and not telling him about the 28 days to escalate his complaint.
There was correspondence between Mr X and the Council after the Committee granted planning permission for the Application. The Council then decided to take a letter from Mr X as a ‘complaint’. So, Mr X did not initiate the complaints procedure. This may have led to the Council’s failure to properly apply the complaints procedure. However, it took the Council’s 13 working days to respond to Mr X’s letter at stage 1. The Council apologised for its delay explaining it arose from the length of Mr X’s letter and the need to discuss matters with the relevant officers.
The stage 1 response did not expressly tell Mr X he had 28 days to continue with his complaint. However, it provided a link to the Council’s website for details of the complaint procedure if Mr X was dissatisfied with the response. I find that providing the link to the procedure gave Mr X suitable notice of the 28-day escalation time.
Mr X’s stage 2 complaint was dated 11 days after the Council’s stage 1 response, which date was nine working days before the start of various Bank Holidays. It took the Council 28 working days to send its stage 2 response, which is significantly longer than the published 10 working days. However, the letter referred to a meeting with Mr X and other residents and thanked them for ‘understanding why the response was sent outside its published timescales’. The Council’s stage 2 response also signposted Mr X to the Ombudsman if he remained dissatisfied.
The Council’s delayed responses, particularly at stage 2 (although the time taken included arrangements for a meeting), were regrettable. However, I did not consider the time taken to respond caused Mr X significant injustice and it did not prevent him from bringing his complaint to the Ombudsman.
Final decision
I completed my investigation finding no fault by the Council in how it reached its planning decision.
Parts of the complaint that I did not investigate Mr X’s complaint about development on the Site included the Council’s handling of a 2019 planning application. The Council granted planning permission for the development proposed by that application in Spring 2020. A complaint now about the Council’s Spring 2020 planning decision is a late complaint (see paragraph 5).
I carefully considered whether I should investigate the late complaint. The Council’s website showed Mr X, and many other residents, commented on the application. The evidence therefore showed Mr X and other residents knew about the application. So, they would have been in a position to complain in Spring 2020 if they were concerned about how the Council had handled the application and its resulting planning decision. I therefore found no good grounds to investigate now a complaint about that decision.
Mr X also complained about the Council’s handling of a 2021 planning application for the Site. Mr X said ‘there was prima facie evidence of deliberate falsification of material’ about this application. This was a serious allegation. However, the planning applicant withdrew the application before the Council determined it. So, any error in the records, regardless of how it might have arisen, could not have affected any Council planning decision. I therefore found no grounds to warrant an investigation into the matter.
Investigator's decision on behalf of the Ombudsman