The Ombudsman's final decision
Summary: Mr X complained about the Council’s rushed decision to approve development to benefit the planning applicant. We found no fault in how the Council dealt with the planning application.
The complaint
Mr X complained about a Council planning decision because: it published a document showing the development as approved before the Council’s Planning Committee had considered the planning application; a councillor (‘Councillor One’) was a friend of the development site owner; a councillor (‘Councillor Two’) made misleading comments which influenced the decision to approve the development; very special circumstances did not exist to develop green belt land as the Council’s local plan included other land for development; and it did not comply with its rules about Planning Committee decisions contrary to Council officers’ recommendations.
Mr X said deciding the planning application before a new local plan to benefit a councillor’s friend when other sites were available for development was undemocratic and suggested corruption.
Mr X wanted the Council to declare the planning permission void so it could be reconsidered. Mr X also wanted the Council to issue a statement about what happened.
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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 information on the Council’s website about the planning application; listened to a recording of the Council’s Planning Committee’s consideration of the planning application; considered information provided by the Council about the complaint; shared Council information with Mr X; 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 council. Planning decisions must be in line with the council’s local plan unless material considerations indicate otherwise. Material considerations concern the use and development of land in the public interest but not private matters such as the applicant’s behaviour or property prices. Material considerations include issues such as overlooking, traffic generation and noise.
Council local plans show some land as ‘green belt’. Green belt land is subject to enhanced planning controls, which aim to prevent urban sprawl by keeping the land open. With some exceptions not relevant to this complaint, councils should view new buildings on green belt land as inappropriate. Government guidance says inappropriate development is, by definition, harmful to the green belt and should not be allowed except in very special circumstances. And very special circumstances will not exist unless harm to the green belt is clearly outweighed by other considerations.
A planning case officer will usually write a report assessing the development proposed in a planning application. The report will identify relevant planning policies and other material planning considerations. Each key planning issue will be considered, balanced, and weighed to reach a recommendation to grant or refuse planning permission. The courts have made it clear that 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.
A senior council officer will usually decide most planning applications. But each council’s constitution (its working rules) set out applications councillors on the Planning Committee must or may decide. Planning policies may pull in different directions, for example, promoting new housing and protecting existing residential amenities. And it is for the decision maker to decide the weight given to any material consideration in deciding a planning application. So, councillors may disagree with the recommendation in their officers’ report.
Councils must tell the Secretary of State for Communities and Local Government if they intend to approve some applications. For example, councils must tell the Secretary of State if they want to grant planning permission for development in the green belt. This gives the Secretary of State an opportunity to ‘call in’ the application. If the Secretary of State calls in an application, he then decides whether to approve it.
Councils should decide most planning applications within eight weeks, although the time limit is 13 weeks for applications for major development. Major development for planning purposes includes: 10 or more houses; buildings providing floor space of 1,000 square metres or more; and development on a site of 1 hectare or more.
After the eight or 13 weeks, unless there is an agreed written time extension, the applicant can appeal to the Planning Inspectorate. The Planning Inspectorate, which act for the Secretary of State, will then decide whether to approve the application.
Councillors must comply with their councils ‘code of conduct for councillors’. The code sets out how councillors should behave and what interests they should disclose and when they should withdraw from council meetings. Councils also have specific procedures for dealing with complaints about councillors not complying with the code of conduct.
What happened The Council received a planning application for major development on land shown as green belt in its local plan (see paragraph 8 of this statement). (In this statement the land is ‘the Site’. And the planning application and development are ‘the Application’ and ‘the Development’ respectively). The Development was not in line with, but a departure from, the Council’s local plan (see paragraph 7). Under the Council’s working rules, councillors at the Planning Committee therefore had to decide the Application (see paragraph 10).
The Council’s officers prepared a report assessing the Application (‘the Report’). The Report identified relevant planning policies and summarised representations received from residents and public bodies about the Development. The Report also listed the main issues for deciding the Application, which included the principle of developing green belt land and drainage and flooding. After considering and balancing the key issues, the Report recommended approval of the Application. The Report also said, if approved, the Council would need to refer the Application to the Secretary of State under the call-in procedure. (See paragraphs 9 and 11.)
At the Planning Committee meeting (‘the Meeting’), in line with the Council’s code of conduct, councillors were asked to declare any interests in the applications on the agenda. A few councillors, including Councillors One and Two, declared interests on various applications. (See paragraph 13.)
A Council officer presented the Report at the Meeting. The officer presentation referred to the call-in procedure should councillors decide to approve the Application (see paragraph 11). An objector and supporter of the Application each made statements about the Development. Councillor Two made a statement and then left the Meeting. Councillor One took part in the Committee’s consideration of the Application. The Committee decided to approve the Application.
The Council referred the Application to the Secretary of State, who decided not to call it in for his decision. The Council then granted the Development planning permission.
Meanwhile, Mr X had complained about the Council’s handling of the Application and decision to grant planning permission. Mr X was not happy with the Council’s response and brought his complaint to the Ombudsman.
Consideration Introduction We are not an appeal body and do not comment on differing views about the planning merits of applications and developments. We also do not seek answers to every question and unresolved issue complainants may raise. Our role is to consider if there is evidence of fault in how councils reach their decisions. Without evidence of fault, we cannot question council decisions however strongly complainants may disagree with them (see paragraph 4).
Here, Mr X’s complaint raised five concerns about the Council’s decision to approve the Application (see paragraph 1). These five concerns were the focus of my investigation.
The document published before the Planning Committee Mr X said the Council published a document showing the outcome of the Meeting before it took place (‘the Document’). Mr X said the Document was created nine days before the Meeting. The Council denied publishing anything about granting the Development planning permission before the Meeting. It also pointed to the Document showing the Site did not have planning permission.
The Document included a list of sites for development, with some shown as having planning permission. The Site appeared in the list as having ‘no’ planning permission. The commentary on the list referred to another table in the Document, which also showed the Site as not having planning permission. The commentary also said there was a resolution to grant planning permission for the Site.
Generally, the Council must ensure a copy of the agenda and reports to its Planning Committee are available five clear days before councillors meet. Clear days excludes weekends and Bank Holidays and both the date the agenda is published and the date the committee meets. Before publishing an agenda, the Council would need to hold the completed reports referred to in that agenda. In practice, the Council’s officers would be drafting and finalising those reports in the days, possibly weeks, before the agenda publication date. And, in working on those reports, officers would know what recommendation they would be making to the Planning Committee.
Here, the Council needed to publish the Meeting agenda, including the Report, the day after Mr X said the Document was created. The Council had been processing the Application for months, with the applicant agreeing time extensions for its decision (see paragraph 12). Many Council planning officers would have known about the Application. And, before the agenda publication date, many would know the Report would recommend approval of the Application. Given the circumstances, it was probable the Document, listing sites for possible development, would include the Site and refer to the Report recommendation.
It is regrettable the Document used the word ‘resolution’ and not ‘recommendation’ when referring to the Site. But, reading the relevant parts of the Document as a whole, it showed the Site did not have planning permission. The Document reflected the officer position that the Development should be approved. However, the Document was not ‘final’. If the Planning Committee had not accepted the Report recommendation, the Council could later change references to the Site in the Document. Overall, the evidence did not show the Council decided to approve the Development before the Meeting. I therefore found no fault here.
Councillor One Mr X’s complaint to the Council raised concerns about Councillor One’s alleged friendship with the Site owner, the planning applicant. In responding to the complaint, the Council said Councillor One had, for transparency, told the Committee about meeting interested parties. The meeting with the Site owner was a brief “exchange of pleasantries” without any detailed discussion of the Application. The Council did not find that Councillor One had breached its code of conduct (see paragraph 13). Mr X was dissatisfied with the response and considered Councillor One had declared himself a friend of the Site owner.
In responding to Mr X’s complaint to the Ombudsman, the Council said a senior officer had again contacted Councillor One. Councillor One confirmed they did not know the Site owner and they were not friends. The Site owner, in recognising Councillor One as a known public figure, had approached Councillor One. The Site owner had asked about progress with the Application and Councillor One had told the Site owner to watch the Council’s website for information about the Planning Committee’s agenda.
Mr X questioned why Councillor One found it necessary to refer to a ‘chance meeting’ with no detailed discussion of the Application. However, the evidence showed many residents objected to and or had concerns about the Development. Against that background, recognising any contact with objectors, the Site owner, and the planning agent ensured openness. I saw no evidence that Councillor One declared the Site owner to be a ‘friend’. And, overall, I saw no evidence to support Mr X’s assertion that Councillor One and the Site owner were friends. I found no fault here.
Councillor Two Mr X said Councillor Two made misleading comments about the Development which influenced the decision to approve the Application. These statements were about the lack of recent development in the area and developing the Site when other land was available for development.
In responding to Mr X, the Council said it had contacted Councillor Two, who had given their views before leaving the Meeting saying they were neither for nor against the Development. Councillor Two had said, in referring to a lack of recent development, they did not mean construction of single buildings. Councillor Two had also said the Meeting was considering the Development on the Site and not development of other sites. The Council found Councillor Two had not breached its code of conduct (see paragraph 13).
Mr X accepted ‘development’ need not mean a single building but there had been ‘development’ in the area. Mr X also said Councillor Two should have known about other sites proposed for development and should not have said the release of green belt land was the only solution.
Essentially, the issue of other development concerned what people meant in using the word ‘development’. The evidence showed there had been ‘development’ in the area, for example new infill housing. However, I saw no evidence of recent ‘major development’ or development on the scale proposed by the Application (see paragraph 12).
The Meeting recording showed Councillor Two referred to the lack of “brown belt sites” in rural areas. I found no evidence Councillor Two referred to green belt land or that using it for development was the only solution. The thrust of Councillor Two’s comments concerned the need for development for local people in rural areas, and recent flooding, which had affected the Site.
One councillor referred to the impact development could have on people if a place had been unchanged by development for a long time. That comment might have linked to statements made by Councillor Two. Other councillors at the Meeting raised various issues, with most comments being about drainage and flood risk.
We expect councillors at committee meetings are likely to say things that others dispute. Statements at committee meetings form part of the ‘ebb and flow’ of a meeting. We would only criticise the conduct of a meeting if we found it seriously flawed. Here, I saw no evidence statements by Councillor Two led to the Meeting being seriously flawed.
Very special circumstances Mr X said very special circumstances did not exist to develop green belt land as the Council’s local plan included other nearby sites for development.
The Council must decide properly made planning applications. And its decision must be made on the merits of the application and in line with relevant local plan policies unless material planning considerations indicate otherwise (see paragraph 7).
Here, the Report explained, for the Development to proceed, ‘very special circumstances’ were needed that clearly outweighed the harm caused by inappropriate development in the green belt. In assessing whether there were ‘very special circumstances’, the Report considered various issues. In conclusion, the Report found the Development was inappropriate development and so harmful to the green belt. There would be further harm through loss of openness in the green belt. And harm to the green belt should be given substantial weight in deciding the Application. The Report also found the Development provided substantial benefits. And, when considering all the relevant issues, there were very special circumstances that outweighed the identified harm. The evidence therefore showed the Report properly addressed green belt issues. I found no fault here.
I recognised Mr X disagreed with the Council about ‘very special circumstances’. However, as the Council properly addressed the issue, I could not question its view and resulting planning decision (see paragraph 4).
The constitution and the officers’ recommendation This issue concerned councillors at the Meeting not complying with the Council’s rules for decision making. It arose because of recent ‘unprecedented’ local flooding. A Council officer at the Meeting suggested postponing a decision on the Application to allow for further comments from the Lead Local Flood Authority. Mr X said this meant the Council’s officers were recommending the deferral of the Application. So, in approving the Application, councillors at the Meeting acted contrary to their officers’ recommendation. This meant the councillors had to follow a set procedure, which they failed to do.
The Council said its officer had expressed a view about deferring the decision. Officers could not formally amend a recommendation in a printed Planning Committee report, only councillors could do so. Here, councillors at the Meeting discussed flooding but none sought to change the printed Report recommendation. So, there was no breach of the rules about decision making.
The evidence showed councillors at the Meeting were aware of both the flood risk on the Site and the recent ‘unprecedented’ flooding in the area. The Report recommendation was to approve the Development. And, after their discussion councillors at the Meeting accepted the printed Report recommendation. I found no fault here.
Final decision
I completed my investigation finding no fault in how the Council reached its planning decision.
Investigator's decision on behalf of the Ombudsman