Summary: the complainant says the Council amended its planning committee’s convention on voting at deferred meetings leading it to approve a planning application it would not have approved. The Council says it acted in line with legal advice and the change did not affect the final decision. We find the Council acted with fault.

The complaint

1. The complainant, whom I refer to as Mr X, complained the Council failed to follow its previous planning committee convention. This allowed only those councillors who attended a previous Planning Committee meeting to discuss and vote on any applications the meeting had deferred to a later meeting.
2. Mr X says this allowed a councillor who previously had been absent due to having a pecuniary interest in the application to vote on the application at a later committee giving the applicant an advantage. Mr X believes but for that advantage the Council would have refused the application, preventing the adverse impact on the security and residential amenity of his home. Mr X wants the Council to recognise the fault.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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. (Local Government Act 1974, section 34(3), as amended)
5. If satisfied with a council’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)

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How I considered this complaint

6. In considering this complaint I have:
• Spoken with Mr X and read the information presented with his complaint;
• Put enquiries to the Council and examined its responses;
• Researched the relevant law, practice, and policy;
• Shared with Mr X and the Council a draft decision and reflected on comments received before making this final decision.

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What I found

The law, guidance, and policy

7. Councils must decide all planning applications in accordance with the development plan unless material considerations suggest otherwise.
8. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
9. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
10. It is for the decision maker to decide the weight to be given to any material consideration in deciding a planning application.
11. Under the Council’s Constitution planning decisions are made by councillors in the Planning Committee or by planning officers to whom authority has been delegated by the Planning Committee. Committees may defer decisions to their next meeting.
12. The Planning Advisory Service recommends councillors who did not take part in a committee’s original consideration of a planning application do not take part in the later consideration of a deferred application. This is not statutory or government advice and so the Council does not have to follow it.
13. Before December 2019, the Council’s Planning Committee usually followed a convention governing which councillors could vote on a deferred item. Only councillors who attended the meeting at which the deferred item had first been discussed or deferred could discuss and vote on that item when it came back to the Planning Committee. The Committee Chair and the Council’s legal officer could agree to suspending the convention before each meeting.
14. At a Planning Committee meeting in December 2019 the Council’s legal representatives told the Committee that:

“all members in attendance at Committee can vote on a previously deferred item, unless they have a pecuniary interest, consider that they have a conflict,  or they leave and return part way through the item during the same committee meeting.  The advice received is that a previously deferred item is taken as coming back afresh provided that there has been no resolution adopted at the previous meeting.”

What happened

15. In February 2019, the Council received an application for planning permission for a housing development. Mr X as a local resident affected by the proposed development objected to the application following the publicity given to it. The application went before the Planning Committee meeting in June 2019. The committee decided to defer deciding planning permission until a later committee meeting. The Council says the Committee had not decided the principle of development when deferring the item to the next meeting. Mr X says the Council made it clear to councillors present at the meeting in June 2019 only those councillors would consider and decide the application on its return to committee.
16. In July 2019 one of the councillors who is a member of the Planning Committee wrote to the Council about voting on applications. The councillor explained he had previously not taken part in decisions affecting businesses with whom he had an association. This included an association with the applicant for the housing development. Those associations had now ended and therefore the councillor believed they had no further interest in the applicant.
17. The application returned to the Planning Committee in November 2019. With the councillor’s association with the applicant now at an end the councillor took part in the meeting and voted on the application. The Council’s view is the application came to the Planning Committee in November 2019 afresh. The planning officers and legal advisers noted the Planning Committee meeting in June 2019 had not decided the principle of development. They say the Planning Committee had yet to decide many issues arising from the application. Therefore, in their view the November 2019 meeting would be considering the application without any limits placed on it by the earlier meeting. With that advice, the Planning Committee chair allowed councillors who had not been present at the June 2019 meeting to speak to the application and vote on it.
18. The November 2019 Planning Committee decided to grant planning permission having voted eight to seven for granting approval. Mr X says that had the Council excluded the councillors who had not attended the June 2019 meeting the Council would not have granted planning permission. The Council says two councillors, not present in June 2019 voted, one for and one against the application. However, the Council says if there had been a tied vote the Chair would cast a further vote and the Chair would have voted for approval. Therefore, the Council says the decision to allow the previously absent councillor to take part in the decision did not result in a different decision on the application.
19. The Council took legal advice on the conduct of the meeting. Counsel’s advice confirmed the Council’s Constitution did not impose on the Planning Committee the convention it had previously followed and therefore it could decide how to conduct its meetings freely.
20. The Council reviewed the previous convention and at the start of the December Planning Committee meeting councillors received the advice set out in paragraph 14. The Council says therefore, the change to the convention took place in December and not at the November meeting dealing with the planning application to which Mr X objected.
21. Mr X complains this change of the convention took place without any discussion within the Planning Committee. Mr X believes the decision has cast doubt on the probity of the Council’s decision-making procedure.

Analysis – was there fault leading to injustice.

22. My role is to consider how the Council decided the change to its conventions on the conduct of Planning Committee meetings and the planning application before the committee. If I find fault, I must consider how that affected Mr X and what the Council should do to put that right.
23. Council committees may decide how to run their meetings and when councillors may speak to an item provided there is no conflict of interest and any conventions do not conflict with the Council’s constitution. However, we expect councils and their committees to act in a transparent way so the public may know what to expect of meetings and how councillors will decide issues set before them. This helps the public to retain trust in the decisions made by the Council.
24. The Council’s planning committee adopted an ‘ad hoc’ convention that depended on the Council’s officer and the Chair agreeing when the convention would apply. That convention meant where the committee deferred an item to the next committee usually only those councillors who attended the original committee meeting could speak and vote on it at the deferred meeting.
25. Adopting conventions or procedures on how to conduct committee meetings should involve all members of that committee voting to decide how the committee will apply those rules. This did not happen here. The convention did not infringe the law or the Council's constitution, but the Council’s management of it may still constitute a fault and I must consider if it did.
26. The Planning Committee did not vote to accept this convention. The agenda did not refer to it. The Chair did not invite councillors to comment or vote on it. Without any formal procedure for adopting, applying, and then removing this convention the public and indeed some councillors would never know exactly how the committee may apply it. That creates doubt, and a lack of transparency. I find the Council at fault for that.
27. I must consider if this fault affected the planning decision taken by the Committee. The Council has shown that but for the Chair of the Planning Committee suspending the convention at the November 2019 meeting, taking the view it did not apply, the decision is likely to have been the same. Taken afresh meant the public had an opportunity to comment at the meeting and Mr X did so. Two councillors not at the meeting in June 2019, voted on the application: one for, one against in effect cancelling each other out. In the event of a tied vote the Chair would have cast their casting vote for the grant of planning permission. Therefore, I find suspending the convention or treating this as a fresh application did not result in a different decision on the planning application.
28. However, I find the fault led to Mr X doubting the reasons for the view taken at the November 2019 meeting.

Recommended and agreed action

29. To address the injustice arising from this fault I recommend and the Council agrees to within four weeks of my final decision:
• Apologise in writing to Mr X;

And within three months of my final decision to:

• Review with chairs of committees how it proposes to adopt and end conventions on the conduct of meetings to avoid similar uncertainty in future.

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Final decision

30. In completing the investigation, I find the Council acted with fault, leading to a lack of certainty and transparency in decisions. That caused injustice to Mr X but not a different planning decision.

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Investigator's decision on behalf of the Ombudsman