The Ombudsman's final decision
Summary: We found no fault in how the Council reached its decision to grant planning permission for development near Mrs X’s home.
The complaint
Mrs X complained about the Council’s decision to grant planning permission for major development near her home because: its report assessing the development was inaccurate; information about air quality provided in support of the application did not use actual readings; it replaced two councillors on the Planning Committee 24 hours before they met to decide the planning application; a councillor on the Planning Committee had a pecuniary interest linking them to the applicant; and there were no records of a meeting attended by some councillors before the Planning Committee meeting.
Mrs X said the development proposals caused much worry and stress for 18 months while the Council dealt with the application. And the development would add to existing light and noise problems, lead to sleepless nights and increase air pollution. Mrs X wanted the grant planning permission overturned and the decision retaken in an unbiased and transparent way, taking account of residents’ concerns, especially the health impacts of increased air pollution.
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. (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 Mrs X’s written complaint to the Ombudsman and her correspondence with the Council. I read the Council’s report on the planning application presented to its Planning Committee. I listened to the Planning Committee’s consideration of the application and considered the minutes of the meeting. I also considered some environmental and public health information about the development on the Council’s website. I read those parts of the Council’s constitution about the Planning Committee and its councillors. Mrs X and the Council also had an opportunity to comment on a draft of this statement and I considered any comments received before making a final decision.
Background
Most development needs planning permission from the local council. Councils must publicise planning applications so people may comment on development proposals.
Councils must consider each planning application received on its own merits. They must also make their planning decisions in line with relevant development plan policies unless material considerations indicate otherwise. Material considerations concern the use and development of land in the public interest, and not to private considerations such as the applicant’s behaviour, covenants, or changes to house prices. Material considerations include issues such as overlooking, traffic generation and noise. Peoples’ comments on planning and land use grounds will be material planning considerations.
Planning policies may pull in different directions, for example, promoting development and protecting existing residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in deciding an application.
A planning case officer will usually prepare a report drawing on the information received about the proposed development. The report will assess the development proposals against relevant planning policies and other material planning considerations. The assessment usually leads to a recommendation to grant or refuse planning permission. Normally, councils grant planning permission if they consider the proposed development is in line with planning policy and they find no planning reasons of sufficient weight to justify refusal.
The courts have said council reports assessing applications do not need to include every possible planning consideration but should address the principal controversial issues. And reports do not need to be perfect as their main intended audience are the applicant and the council, which parties are well versed in the issues. The courts have also said reports should not be subject to hypercritical scrutiny. And they do not merit challenge unless their overall effect is to significantly mislead the decision maker on key material issues.
Councils have rules (a constitution) that set out how they work, which will include their arrangements for deciding planning applications. The constitution usually provides for a senior council officer to decide most planning applications. Councillors will decide relatively few applications, for example, those seeking planning permission for major development. Here, under the Council’s constitution, its Panning Committee (‘the Committee’) had to decide the application.
The Council’s constitution also says the Committee needs at least three councillors to be present to decide an application. And councillors must have received planning training to sit on the Committee. A councillor may name another councillor from their political group to act as their substitute at a meeting of the Committee. The substitute must also have received planning training. And the Committee Manager must receive written notice of the substitution as soon as possible and before the start of the meeting.
The Council’s constitution also includes a code of practice for dealing with planning applications (‘the Code’). The Code covers lobbying of councillors and the difference between having a ‘closed’ and ‘open’ mind about an application. Councillors may express a view, sometimes called ‘predisposition’, provided they remain open to changing that view when deciding the application at committee. The Code says councillors should declare any significant contact with either applicants or third parties before they vote at committee. The Code also says a councillor should declare any significant contacts that “may reasonably be regarded by the fair-minded observer as appearing to influence” their opinion on an application. The Code recognises that dealing with planning applications may potentially result in conflicts of interest and suggests councillors take advice from the Council’s statutory Monitoring Officer if uncertain about any case.
Council constitutions contain their councillors’ code of conduct. Under the code of conduct, councillors must register their ‘pecuniary interests’, for example, their employment, trade, or profession. Generally, a councillor should not take part in a committee’s discussion, or vote, on any matter in which they have a pecuniary interest.
What happened The Council received a planning application (‘the Application’) for major development (‘the Development). The Application produced over 1,000 objections from local people. The Council prepared a report assessing the Development (‘the Report’). The Report described the Development, set out key planning policies and guidance, and the site’s planning history. The Report also summarised comments received in response to the Council publicising and consulting on the Application. The Report grouped comments from residents under headings including the principle of development on the site, local amenity issues and environmental issues. The comments also included responses from specialist Council officers, for example, environmental health, public health, and nature conservation officers. There were also consultation responses from other public bodies, for example, local Parish Councils, the Environment Agency, Natural England, and Highways England.
The Report also identified and considered 20 key issues for deciding the Application. These issues included the principle of development, climate change, landscape issues, highway safety, noise and disturbance, air quality, health and wellbeing, and ecology. In considering the issues, the Report referred to both information sent by the applicant in support of the Application and opposing views provided by objectors. The Report then gave the planning case officer’s view on the issue.
Specifically, the Report recognised that impact on air quality was “a very important issue” and the Development would produce a lot of traffic. The applicant’s information considered there was a ‘low risk’ of air quality problems but recommended mitigation measures during construction. The applicant’s information also predicted ‘negligible’ effects on air pollution levels once the Development was in use. The Report said the impact of the Development on air quality ‘had been heavily disputed by objectors’. And ‘detailed responses had been provided by medical professionals identifying the potential risk posed by the Development’. The Report referred to information provided by objectors after carrying out their own air quality monitoring. The Report also said the Council’s specialist officer had no objection, but any planning permission should include conditions to secure the applicant’s mitigation measures.
On health and wellbeing, the Report recognised the “substantial level of local concern” about the impact of the Development on peoples’ health and wellbeing. The Report referred to the applicant’s Health Impact Assessment (HIA), which found the development would not result in “significant adverse effects to health”. The Report said objections had been received to the HIA, and that also raised other health related concerns. And an objector that was a local medical health professional had provided a detailed health risk assessment. The Council’s Public Health officers were also consulted and, while identifying shortfalls in the HIA, raised no objections.
The Report, in dealing with external lighting for the Development referred to objectors’ views that challenged the applicant’s lighting assessment. The Report also said the Council’s environmental control officer had no concerns on the issue, but any permission should include planning conditions to secure compliance with the lighting assessment.
Specifically on noise and disturbance, the Report referred to the applicant’s information and a ‘detailed rebuttal’ provided by objectors. The Report also said the Council’s Environmental Control Team had studied the information and raised no objections. The Report said any planning permission would include conditions to safeguard nearby homes, including securing compliance with the applicant’s noise management plan.
The Report, having commented on what the applicant, objectors, and the Council’s specialist officers had said, did not find the Development would cause unacceptable adverse harm to local amenities. The Report recommended the grant of planning permission, with conditions, for the Development after completion of a legal agreement. (The legal agreement was to secure land for use to mitigate the ecological impacts of the Development.)
The Committee considered the Report (‘the Meeting’). Three days before the Meeting, the Council received notice of a substitute councillor. And, the day before the Meeting, the Council received notice of two further substitute councillors.
At the start of the Meeting, councillors present declared they had received communications about the Development but expressed no views on it. One councillor also said they had sought advice from the Council’s legal officer and wished to declare a former business relationship with the applicant about six or seven years earlier. The councillor also said the applicant had been in touch about the timetable for deciding the Application. The councillor said they had not expressed any opinion on the Application.
Local councillors and an objector spoke at the Meeting. Their comments included concerns about light, air pollution, parking, and negative health impacts. Council officers at the meeting responded to questions raised by Councillors. And most of the councillors present spoke on the Application. Their comments included allocation of the site for development in the local plan, lorry traffic and parking, air pollution, trees and landscaping, noise and economic issues. Several councillors recognised objectors’ concerns, but said it was difficult to find sustainable planning grounds to refuse the Application. Councillors also said proposed planning conditions would afford protection for residents. One councillor said the objectors’ views on air pollution were compelling and provided a reason to refuse the Application. On a vote, 10 of the 12 councillors present voted to grant planning permission on completion of a legal agreement (see paragraph 21).
The Council later completed the legal agreement and granted conditional planning permission for the Application. The conditions included those referred to in paragraphs 17, 19, and 20.
Mrs X complained to the Council and, dissatisfied with its responses, brought her concerns to the Ombudsman.
Consideration Introduction We are not an appeal body and so do not take a second look at a planning decision to decide if it was right or wrong. 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 find it followed the correct process, we cannot question the resulting decision however strongly people may disagree with it.
The Report Mrs X was concerned the applicant’s assessments about air quality and impacts on residents’ health and wellbeing were based on unsubstantiated information. Mrs X also said the Report did not accurately reflect objectors’ information about the impacts of increased air pollution on residents’ health and wellbeing. The Council said the Report dealt with air pollution and health and wellbeing issues in detail. It recognised Mrs X disagreed with some of its conclusions, but that did not mean the Report was wrong.
An officer report assessing an application will not repeat all the available planning information about the proposed development. Rather, it draws on that information, which remains available, usually on the council’s website, for readers of a report to access. Here, the layout of the Report followed normal practice (see paragraphs 15 and 16). The Report included the officer’s assessment of identified key issues, including the impact of the Development on air pollution and health and wellbeing.
I recognised Mrs X questioned the basis of some of the applicant’s technical information related to air pollution. However, I had no role in arbitrating on differing views about the contents of technical or specialist reports and assessments. The Council received information from both the applicant and objectors about air pollution and impacts on health and wellbeing. The evidence showed the applicant and objectors had opportunities to respond to the others information. The Council was entitled to decide when it held sufficient information on any issue.
The Report presented the applicant’s information. That objectors, including medical professionals, questioned and challenged the applicant’s information was also set out in the Report. The Council’s officers, having considered all the information, provided their assessment of the air pollution and health issues. The Committee’s discussion of the Application showed councillors were aware of the issues and differing views of the applicant and objectors. It was for the Council to decide what weight it would give to the information, and air pollution and health impacts, in balancing all the relevant planning issues to reach a decision. Overall, I saw no evidence the Report was inadequate or likely to have significantly misled councillors in making their decision on the Application.
Substitute councillors Mrs X said the late substitution of councillors on to the Committee meant they had insufficient time to read all the papers or understand the many technical reports and objections made to those reports. The Council said the councillors had time to read the Report, which summarised the planning information about the Application. And one substitute councillor arrived late for the Meeting and did not vote either for or against the Application.
I recognised Mrs X’s concern about the time available to the substitute councillors. However, councillors do not have read all the planning information about an application. Councils employ professional officers, including qualified planners, to consider and assess development proposals and to provide councillors with a report on the key planning issues. Councillors will consider their officers’ report and may, but do not have to, read the background information.
Here, the Council’s constitution allowed for substitutes up to the start of the Meeting. It was not fault for the Council to consider the Application because substitute councillors attended the Meeting.
The councillor’s interest Mrs X said the councillor that had a link to the applicant should not have voted on the Application. Mrs X pointed to that councillor having registered their employment as pecuniary interest. The Council said councillors had to decide what interests to declare. And Mrs X should make a ‘standards complaint’ if she considered the councillor had not complied with its code of conduct about pecuniary interests.
The Council was correct to signpost Mrs X to its standards complaints procedure if she believed the councillor had not complied with its code of conduct.
However, for this Ombudsman complaint, I saw no evidence the councillor had a pecuniary interest in or affecting the Application. The councillor, several years earlier as part of their employment, trade or profession, had had dealings with the applicant. The councillor sought legal advice and then declared that historic link at the Committee meeting. That was in line with the Code (see paragraph 13), and I found no fault here.
The pre meeting Mrs X said Committee councillors from one political party met before the Meeting without officers present or recording what they discussed. The Council said it held a ‘Chair’s briefing meeting’ before meetings of the Committee. The Chair, Vice Chair and representatives of each political group attend the briefing. At the briefing, officers update councillors on applications being decided at the next Committee. The Council said after the briefing, those attending would share the updates with other councillors in their group.
Mrs X’s concern was the group meetings would lead to predetermination of applications. However, having listened to the Meeting recording, I found no substantive and objective evidence of predetermination in the Council’s decision making on the Application.
Final decision
I completed my investigation finding no fault in the Council’s decision making.
Investigator's decision on behalf of the Ombudsman