The Ombudsman's final decision
Summary: Mr X complained on behalf of a community interest group about how the Council determined a planning application for a large development. Mr X said the group feels aggrieved by shortcomings in the planning process. We do not find the Council at fault.
The complaint
The complainant, who I refer to here as Mr X, complained on behalf of a community interest group about how the Council determined a planning application. Specifically, Mr X complained that: the Council failed to engage properly, effectively, and constructively with residents; the Council failed to be transparent about meetings between the Council and the applicant, particularly about highways and transport issues; the Council failed to acknowledge or consider input from an expert transport consultant about lack of transport mitigation measures; the Council failed to conduct a peer review process to achieve balance, instead relying on the applicant’s specialist reports and unchallenged Council input; the planning committee did not allow objectors to cross-examine Council officers, and neither the planning committee nor the case officer answered direct questions from objectors' representations; and, the Council has approved plans which are not in line with local and national policies.
Mr X said by ignoring expert reports, the Council deprived the community interest group members of their right to be part of the decision-making process, which has caused distress. He said the group feels aggrieved by shortcomings in the process.
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) We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
How I considered this complaint
Members of the community interest group gave their consent in writing for Mr X to represent this complaint on the group’s behalf. I spoke to a group member who confirmed this verbally. I am therefore satisfied that Mr X is a suitable person to represent this complaint on the group’s behalf.
I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
I considered the relevant legislation and statutory guidance, set out below.
What I found
What should have happened The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission. A senior planning officer will then decide most applications, but some go to the council’s planning committee for councillors to decide the application.
The Ombudsman will consider whether the decision-makers had enough information in front of them to make an informed decision.
What happened In 2019, the Council received a planning application for a large development of nearly 700 new homes and supporting infrastructure. The community interest group that Mr X represents involved itself in the planning process through communication with the Council and by objecting to the application. The community interest group commissioned its own reports so it could make representations to the Council on various issues to do with the planning application.
In 2020, the community interest group that Mr X represents complained to the Council about the planning process.
The Council replied, saying the planning committee would consider any comments the community interest group made on the applicant’s assessments. It said it would consider the independent reports the community interest group had commissioned.
The Council set out how it usually engages with residents about planning applications. It said it had engaged and met with the community interest group to listen and provide updates on the planning application’s progress. It said it had gone above and beyond in terms of how the normal planning process works within the statutory procedure, regarding how it had engaged with the community interest group. The Council said the community interest group could still provide comments on the application, and it would consider representations submitted outside the formal deadline date for comments up to the point when it finalised its report for the planning committee.
The Council said that outside the statutory planning process, officers try to answer questions and be helpful but are not obliged to do so within the statutory process. It said officers had responded to the community interest group, but could not respond to every question raised, nor is it obliged to do so.
The community interest group asked its experts to communicate directly with the Council, which they did. The Council told the experts it would consider all representations it received. The Council directly addressed the experts’ representations, which the Council acknowledged was not usual in the normal planning process.
In 2021, the planning committee heard the application twice. At the first planning committee, the committee decided to approve the application subject to conditions. It then became apparent that some comments from a Council department had not been drawn to the committee’s attention, and further information was needed. This was to make sure the committee had all relevant information to consider when deciding the application.
On the second occasion, the case officer’s report made clear the reason the application was brought before the planning committee for a second time. The officer said that, in the interests of openness and transparency in the decision-making process, the application needed to be reconsidered by the planning committee.
The case officer amended their report to include the updated information and the additional representations the Council received after the first case officer report was published.
The case officer’s report considered the application against local and national planning policies. The report listed and addressed the objections. The case officer recommended approving the application subject to conditions.
The second planning committee decided to delegate the decision to grant permission subject to conditions to the Head of Planning.
In May 2022, Mr X brought this complaint to the Ombudsman on behalf of the community interest group.
Analysis Engagement with the community interest group Mr X complains that the Council failed to engage properly, effectively, and constructively with the community interest group (part a of the complaint). He says the Council met with the community interest group twice in the early stages of the planning process but after this there was no opportunity to further meet with the Council and discuss concerns about the application. Mr X says the community interest group could not get any form of audience and this is a failure to engage.
I find the Council considered the community interest group’s objections throughout the planning process. This is shown in the case officer reports. The Council also met with the community interest group at various times to update them and listen to their concerns. This is good practice.
The Council is not at fault for not engaging with the community interest group as an equal part of the planning process. There are two parties involved in planning applications: the applicant and the council. Objectors are third parties to the planning process, and they do not have the same rights or part to play in the process.
Councils are under no obligation to spend their time and resources working with a third party to the planning process. Councils are only obliged to work with the applicant, and consider objections to planning applications, which I find the Council did. I find the Council showed good practice in the way it engaged at an appropriate level with the community interest group.
For these reasons, I do not find the Council at fault.
Transparency about meetings between the Council and the applicant Mr X complains that the Council failed to be transparent about meetings between the Council and the applicant, particularly about highways and transport issues (part b of the complaint). Mr X says the community interest group pressed the Council for an understanding of how its team and specialists were being consulted, but could not get any meaningful information from the Council. He says the applicant engaged with specialists, but the community interest group could not. He says it was an asymmetric situation and the community interest group could not get continuity of contact.
I find the Council was appropriately transparent about its meetings when it communicated with the community interest group. As I have said above, third parties to the planning process (in this case, the community interest group) do not have the same rights or part to play in the planning process as the Council or the applicant.
The Council is entitled to, and should, consider information put forward by the applicant to support the application, which it did. I find the Council engaged appropriately with the community interest group as a third party in the planning process.
I therefore do not find the Council at fault here.
Input from expert consultants Mr X complains that the Council failed to acknowledge or consider input from an expert transport consultant about lack of transport mitigation measures (part c of the complaint). Mr X says the Council was happy to accept expert material from the applicant, which he says was an unbalanced and absurd thing to do. He says the community interest group provided alternative expert reports that the Council did not consider in the same way.
I have seen communication between the Council and the experts commissioned by the community interest group. The Council acknowledged the experts’ reports and said it would consider all representations it received. The Council, in its communication with the experts, went into great detail about transport modelling and addressed the experts’ representations. The Council acknowledged this was not usual in the planning process.
I find this shows a good level of community engagement. I find the Council both acknowledged and considered the input of experts commissioned by the community interest group.
As I have said above, the community interest group does not have an equal part in this planning process because it is a third party. The Council is entitled to, and should, consider expert material provided by the applicant, which it did. I find the Council also considered expert information provided by the community interest group. The Council did not have an obligation to do this as part of the statutory planning process, but it did so anyway. I find this shows the Council went above and beyond in engaging with the community interest group.
For these reasons, I do not find the Council at fault.
Peer review process Mr X complains that the Council failed to conduct a peer review process to achieve balance, instead relying on the applicant’s specialist reports and unchallenged Council input (part d of the complaint). He says the Council did not seek formal alternative assessments to the ones provided by the applicant. Mr X says the applicant’s expert input was not peer reviewed. He says just because the assessments were completed by experts does not mean someone else cannot get research that disagrees with it. He questions the undue influence of the applicant on the planning process.
The Council is under no obligation to peer review applicants’ experts’ assessments which are submitted as part of the planning process. There is no obligation or suggestion in planning law or guidance that says councils should engage their own specialists or peer review assessments provided by applicants: these are assessments that applicants are required to submit as part of the planning process.
Councils have to determine planning applications on the basis of the information, reports, and assessments they receive from applicants. The planning process is between councils and applicants.
I find the Council considered the reports and assessments it should have, in the way it should have. This is shown in the case officer’s reports which the planning committee saw and which the Head of Planning considered before making the decision.
For this reason, I do not find the Council at fault.
Planning committee Mr X complains that the planning committee did not allow objectors to cross-examine Council officers, and neither the planning committee nor the case officer answered direct questions from objectors' representations (part e of the complaint).
The planning committees were held online due to COVID-19 restrictions.
Planning committees do not have to allow cross-examination. They also do not have to answer direct questions raised in objections submitted by third parties. Councils have to consider objections, which I find the Council did through the case officer’s report which the planning committee saw.
I find the planning committee knew was it was deciding and knew about the many and varied objections. I find the committee had enough information in front of it to make an informed decision.
For these reasons, I do not find the Council at fault.
Plans not in line with policies Mr X complains that the Council has approved plans which are not in line with local and national policies (part f of the complaint).
The case officer’s report shows detailed and thorough consideration of the application weighed against local and national policies. I therefore do not agree that the approved plans are not in line with local and national policies. The Council was entitled to decide that the application was in line with local and national policies.
For this reason, I do not find the Council at fault.
Final decision
I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no fault.
Investigator's decision on behalf of the Ombudsman