The Ombudsman's final decision
Summary: We will not investigate this complaint about the way the Council considered an application for planning consent to fell a protected tree. This is because the applicant had a right of appeal to the Planning Inspector about some of the issues in his complaint, and there is no sign that fault by the Council in other respects has caused him an injustice to warrant our further involvement.
The complaint
The complainant, who I shall call Mr B, complained about the way the Council dealt with his application for planning permission to fell a tree covered by a Tree Protection Order. Mr B complained in particular that: the Council delayed unreasonably in acknowledging and deciding his application; the Council carried out an inadequate site visit and did not give prior notice of this as he had requested; the Council’s assessment of his application was poor, relied on inaccurate information, and did not take proper account of his evidence; and the Council did not properly explain or justify its planning decision.
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 an investigation if, for example, 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, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6)) The law says we normally cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b)) The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about delay by an authority in deciding a planning application and about decisions to refuse planning permission.
How I considered this complaint
I considered the information Mr B provided with his complaint and his comments in response to a draft of this decision. I also took account of the Ombudsman’s Assessment Code.
My assessment
I have decided that we should not investigate Mr B’s complaint.
First, although Mr B framed his complaint as being solely about the Council’s procedural failings, some of the issues he raised pertained directly to its planning decision. As a result I consider these issues are outside our jurisdiction to pursue because Mr B’s had separate appeal rights about the Council’s decision, as I have indicated in paragraphs 3 and 4 above.
In particular, I consider the issues Mr B referred to about the adequacy of the planning officer’s assessment of the application, the lack of consideration given to his supporting information and the officer’s justification for the decision in planning terms, are all matters which could be, or could have been, addressed at an appeal. Mr B is evidently familiar with the appeal process. In the circumstances I see no reason why he should not be expected to have pursued these aspects of his complaint in that way.
In addition, we have no remit to make planning decisions or judgements ourselves. Mr B wanted us to reach an independent judgement about the Council’s interpretation of ‘amenity.’ But that is a matter for the Planning Inspector to consider and rule on.
As for the procedural issues in Mr B’s case, there has clearly been fault on the Council’s part, as it has already recognised. In particular, the Council failed to acknowledge receiving Mr B’s application at the time. It then took no action on the application for two months until Mr B queried what it was doing. Ultimately the Council took around 11 weeks to decide the application, whereas the statutory requirement is to do so within eight weeks.
There were also other deficiencies in the Council’s communications with Mr B. In particular it did not act on an earlier request he made to remove his email address from its records and to only correspond with him by letter. In addition the Council delayed in dealing with, or failed to respond to, Mr B’s letters.
I can see that the delays and deficiencies in communications would have caused Mr B uncertainty and inconvenience. But I am not convinced we could say he suffered a significant lasting injustice in these respects to warrant us pursuing these matters further.
In particular I do not see we could say that the delay in deciding Mr B’s application made any difference to the planning outcome or caused him any substantive disadvantage in that regard. I also note the Council has apologised for its failings and says it has improved its systems for handling post and planning correspondence. In the circumstances I consider this is a suitable response from the Council, and I am not convinced we would be justified in seeking an additional remedy.
Mr B is unhappy that the planning case officer made a site visit without giving the 24 hours written notice he had asked for. He is also dissatisfied with the conduct of the visit, particularly the fact that he was unable to meet the officer to discuss his case.
For its part, the Council said this was an ad hoc visit by the officer which he could do from the street, but he contacted Mr B out of courtesy when he was there.
However councils have significant discretion about arranging and conducting site visits. In the circumstances I do not see that we have reason to question the Council’s view that it was not obliged to pre-arrange a visit, or to necessarily meet with Mr B and receive further representations from him during that time. It may have been more courteous for the officer to have contacted Mr B well in advance, given his request. But I consider we are unlikely to find grounds to conclude the Council’s site visit arrangements amounted to fault.
Mr B was also concerned that the officer entered his land without wearing a protective face mask in view of the COVID-19 pandemic.
But there are differing accounts about whether or not the officer was invited onto Mr B’s land. So in the absence of any objective evidence in this respect, I do not see we would be in a position to reach a clear-cut view that the officer was at fault in the way he accessed Mr B’s land.
I also understand the visit was conducted entirely outdoors, and I am not aware of any requirement for the officer to wear a mask in those circumstances at that time, even if it may have been advisable to do so. In addition, there is no suggestion the officer breached social distancing guidelines or caused any actual harm. On balance, therefore, I do not see we are likely to find grounds to say there was fault by the Council which caused a significant injustice in this respect.
Therefore I have concluded that Mr B’s complaint does not meet the threshold of significant injustice set out in our Assessment Code to justify us starting an investigation into the Council’s handling of his planning application.
I also do not see we could achieve some of the main outcomes Mr B is seeking from his complaint. In particular we have no power to force the Council to reverse or reconsider its planning decision. That is a matter for the Planning Inspector to consider. In addition we have no remit to make the Council dismiss or discipline its staff or to make recommendations to that effect.
Final decision
We do not have reason to investigate Mr B’s complaint concerning the way the Council handled his application for planning consent to fell a protected tree. This is because Mr B has, or had, a right of appeal about the planning decision, and there is no sign of fault by the Council which caused him an injustice to warrant our further involvement in his case.
Investigator's decision on behalf of the Ombudsman