The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of a planning application for a waste transfer and recycling facility. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The complainants are not regarded as members of the public, and the alleged fault has not yet caused a significant injustice.
The complaint
The complainants, a Member of Parliament (MP) and a councillor, complain about the Council’s handling of a planning application for a waste transfer and recycling facility. In particular, they say the Council did not assess the availability of alternative sites for the development, and did not make two Environment Agency reports available to the Planning Committee.
The complainants say they are making the complaint on behalf of hundreds of residents whom they represent.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Ombudsman can 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 or may decide not to continue with an investigation if we decide: 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)) And we can only accept complaints from members of the public or their authorised representatives. This means we cannot accept complaints where the complainant is acting solely in their official capacity as a councillor or MP, rather than as an affected individual or as a representative with consent to act on behalf of a member of the public or group. (Local Government Act 1974, section 26A, as amended) We also cannot investigate the actions of bodies such as the Planning Casework Unit or the Planning Inspectorate, acting on behalf of the responsible Government minister. (Local Government Act 1974, sections 25 and 34A, as amended)
How I considered this complaint
I considered information provided by the complainants, and an update from the Council on the status of the planning application.
I also considered our Assessment Code.
My assessment
The restriction detailed in paragraph 5 above appears to apply to the complaint, as the complainants are acting in their capacity as elected persons, rather than as, or on behalf of, individuals who claim to have sustained injustice in consequence of the matter being complained about.
And even if this restriction did not apply, the Ombudsman would not investigate the complaint at the present time, because planning permission has not yet been granted. The Council’s Planning Committee resolved to approve the application, but the Planning Casework Unit at the Department for Levelling Up, Housing and Communities is currently considering it. With reference to paragraph 4 above, we consider that no significant injustice occurs to a complainant until a planning application is approved.
Finally, the Ombudsman has no power to investigate the actions or recommendations of the Planning Casework Unit or the Planning Inspectorate if the application is eventually called-in by the Secretary of State for determination.
Final decision
We will not investigate the complaint because the complainants are not regarded as members of the public, and the alleged fault has not yet caused a significant injustice.
Investigator's decision on behalf of the Ombudsman