The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling and determination of a planning application for a development next to the complainant’s home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault by the Council.
The complaint
The complainant, whom I refer to as Miss X, raises a number of issues about the way the Council processed and determined a planning application for a residential development near her home. She believes the decision was not taken in accordance with the relevant Council codes, policies, and values. In summary, she says: The Council should have declined to validate the application.
The Council failed to consult direct neighbours to the site.
The Council should have agreed to defer the decision on the application, to allow residents fair preparatory and re-familiarisation time.
The Council failed to address residents’ concerns about the proposal and should have undertaken its own impact assessments.
The decision of a Planning Committee Member to declare a non-pecuniary interest and recuse themselves from the vote, in addition to the absence of another Member, leads to the inference that the application outcome was known in advance.
The completion of the section 106 legal agreement went beyond the 12-week deadline set the Planning Committee, so the Council should have refused the application.
The Ombudsman’s role and powers
The Ombudsman investigates 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 an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6)) We do not provide a right of appeal against a council’s decision. And 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 that is likely to have affected the outcome.(Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by Miss X and our Assessment Code.
I also considered information on the Council’s website about the planning application and the Planning Committee meeting.
My assessment
I appreciate Miss X has raised several concerns about the way the Council processed and determined the application, and is very unhappy with its decision to grant planning permission.
But our role is to investigate complaints of fault that cause significant injustice to individuals. In relation to planning decisions, we will particularly consider whether any fault in the way the Council has processed or assessed the application is likely to have affected the outcome. In the absence of any fault, we may not question the merits of the Council decision or the professional judgement of its officers.
I have carefully considered each of the questions/concerns Miss X raised. In my view, there is not enough evidence of fault in the way the Council has handled or reached its decision on the application to justify the Ombudsman pursuing the complaint further. In reaching this view, I am particularly mindful that: The Council has explained there were no grounds to decline to determine the application, as it sought to address the Planning Inspector’s sole reason for dismissing the previous application.
The Council says it sent notification letters to adjoining neighbours and erected a site notice. This exceeds the statutory requirements. Although I accept some residents may not have received their notification letter, this could be because Royal Mail failed to deliver it. We cannot hold the Council responsible for such an error; Planning applicants are responsible for providing the necessary plans and documents/reports to support their proposal. The Council will then review these during its consideration of the application. There is no requirement for the Council to commission its own impact assessments.
The Council’s internal and external consultation included Highways, Environmental Health, the Nature Conservation and Tree Officer, the Fire Brigade, and Natural England.
The report to the Planning Committee was made available 5-working days before the meeting, in accordance with the Local Government Act 1972, and is regarded as giving sufficient time for participants to prepare.
The Committee report summarises and addresses the objections from residents. Miss X’s representations were also read out at the Committee meeting. These have therefore been taken into account as part of the decision-making process.
The Committee report goes on to consider the key planning issues, including the Planning Inspector’s decision on the previous application, the impact on the amenity of neighbouring properties, the proximity to a Special Area of Conservation, tree protection and biodiversity, highways and parking, fire risk and air quality.
The Council imposed conditions on the planning permission, including ones requiring the submission of further details of the demolition/construction methodology, hard and soft landscaping, an air quality and dust management plan, site investigations to determine the presence of contaminants, a construction logistics plan, and a sustainable drainage scheme. Furthermore, Government guidance says planning conditions should not duplicate the effect of other regulatory regimes, which the Council has acknowledged by including informatives in the decision notice.
Members of the Committee are entitled are declare an interest in an application and recuse themselves from the decision making. I do not agree with Miss X’s inference that the absence of two Members suggests the application was pre‑determined.
Whilst the Committee had given authority for the application to be refused if the legal agreement was not completed within 12 weeks, this did not mean it must automatically be declined once that timeframe had passed. The Council has explained the agreement was almost complete and it was issued only a few days later.
I am satisfied the decision on the application was reached properly, so the Ombudsman cannot criticise the merits of that decision.
Final decision
We will not investigate Miss X’s complaint because there is not enough evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman