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Derbyshire Dales District Council (20 010 437)

Category : Other Categories > Land

Decision : Not upheld

Decision date : 05 Aug 2021

The Ombudsman's final decision:

Summary: Mrs B complains about the Council’s decision to nominate a site near her home as its preferred location for a gypsy and traveller site. She says the Council did not give adequate time for her to raise objections and did not properly consider the feasibility of the site. The Ombudsman does not find fault in how the Council reached its decision.

The complaint

  1. The complainant, who I refer to as Mrs B, complains the Council nominated a site near her home as its preferred location for a gypsy and traveller site. She says the Council did not properly consider the suitability of the area, the costs involved and did not make proper comparisons with other sites. She says the Council relied on a map of the area that was misleading.
  2. Mrs B complains the Council did not give her enough notice of its meeting to properly raise objections. She says Councillors had already pre-determined their view and one member did not declare a special interest. Mrs B says Councillors were not clear about whether they needed planning permission for a temporary site.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. If we are 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

  1. I considered the information Mrs B provided and discussed the complaint with her representative. I then made enquires of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.

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What I found

Law, Guidance and Local Policies

  1. Planning permission is required for the development of land. Normally any buildings intended for use for more than 28 days need planning permission.
  2. The Department for Communities and Local Government has published a Good Practice Guide for Designing Gypsy and Traveller Sites (“the Guidance”). The Guidance identifies three types of site, permanent sites, transit sites and temporary stopping places. It says temporary stopping places consist of land used for less than 28 days and may not need planning permission.
  3. Section 25 of the Localism Act 2011 says a councillor is not to be taken to have had a closed mind when making a decision just because:
    • they had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and
    • the matter was relevant to the decision
  4. Section 122 of the Localism Act 2011 inserts provisions into the Town and Country Planning Act 1991. It requires a person to carry out pre-application consultation with the local community when it proposes to apply for planning permission for something described in a development order. Development order has the meaning set out at section 59 of the Town and Country Planning Act 1991.
  5. The Council’s constitution includes an Access to Information policy. The policy says it will give at least five clear days’ notice of any meeting by posting details of the meeting at the town hall and on the Council’s website. It says it will make copies of the agenda and reports open to the public at least five clear days before the meeting.
  6. The constitution also includes a Councillor’s Code of Conduct. The code says councillors must declare pecuniary interests and withdraw from any meeting where this causes a conflict of interest.

Background

  1. In September 2020, the Council held a meeting at which councillors discussed proposed sites for a gypsy and traveller site. The site was for one family who have resided at various locations within the Council’s area over several years.
  2. At a meeting in 2016, the Council accepted it owed a duty toward the family in line with homelessness legislation. It has tried to identify a suitable permanent site for the family since but has encountered delays. The Council has suggested several sites and each site has met local opposition.
  3. The Council published the agenda for the September 2020 meeting five working days before the day of the meeting. The Council also prepared a report which outlined the different sites, the Council’s view on their suitability and comments received from local people. There were a large number of comments, raising concerns about the suitability of all the proposed sites.
  4. In the days running up to the meeting the leading members group of councillors had a members group meeting. In one of its responses to Mrs B’s representative, the Council accepts that at this meeting members indicated the site near Mrs B’s home was their preferred choice. The Council said this did not amount to pre-determination.
  5. At the September 2020 meeting, the councillors voted for the site near Mrs B’s home as the most suitable site and the preferred choice. There was some discussion at the meeting about whether the Council would only apply for a permanent site or also a temporary one and whether the temporary site needed planning permission. The Council now says it intends to apply for planning permission for both.
  6. Following the meeting Mrs B raised a complaint with the Council. She said the Council had not properly considered the alternative choices and did not give local residents enough time to comment. She raised the following points:
    • The Council did not present a properly considered report with pros and cons of all the sites and did not refer to the Guidance. The site does not meet any of the relevant criteria in the Guidance
    • It did not carry out any risk assessments or consider the ongoing cost of servicing and maintaining the preferred site
    • It did not obtain the views of the gypsy/traveller family
    • The map the Council used of the preferred site was misleading as it only included one existing house when there are four
    • During the meeting one councillor was not allowed to ask how many councillors had visited the site
  7. Mrs B also says a member for another area did not declare a special interest, when he had been involved in campaigning against the selection of a rival site. She says the question about whether a temporary site needed planning permission was not clear.
  8. The Council did not uphold the complaint.

Findings

  1. I do not find fault in how the Council reached its decision or managed the meeting of September 2020. I have responded to Mr B’s complaint under the following sections:
    • Publicity and governance
    • Decision making

Publicity and governance

  1. The first issue Mrs B raises is how the Council conducted the meeting and the time it gave for people to comment.
  2. I can see the agenda, published on the Council’s website, is dated five working days before the date of the meeting. This is in line with the Council’s access to information policy. I cannot see any other requirements in relation to publicity or consulting local residents before a meeting. There are no specific timeframes in the Localism Act or any other legislation for how much notice residents should receive of meetings of this nature.
  3. Mrs B’s representative says the Council did not comply with Section 122 of the Localism Act 2011 for pre-application consultation. Section 122 is not relevant to this matter as the proposed development is not specified in a development order.
  4. Mrs B’s representative refers to the Gunning Principles for consultation, which say adequate time must be given for consideration and response. However, again there are no specific timescales, and I cannot find anything to suggest the Council’s normal procedures are out of line with any law or established principles. I therefore do not find fault in how the Council publicised the meeting.
  5. I also do not find fault in a councillor not withdrawing from the meeting due to previous involvement in the case. The code of conduct says councillors must declare pecuniary interests but does not say they must declare an interest whenever they have previously given a view. In this case there were four choices and the councillor in question could still make an informed decision based on the evidence presented, even if they had previously opposed one of the sites.
  6. As outlined at Paragraph 8, a prior indication of view does not mean a councillor has pre-determined their view. This also applies to the members group meeting, at which councillors indicated their support for the site near Mrs B’s home.

Decision making

  1. I do not find fault in how councillors reached a decision on the preferred site.
  2. I cannot criticise the merits of any decision the Council makes, only whether it followed the proper procedures in making that decision. I have watched the video of the meeting and can see the councillors raised, discussed and considered each of the points Mrs B objects to. For instance, councillors discussed the strength of the report, whether there were sufficient costings and whether the family’s views had been taken into account. One councillor raised the problem with the map and clarified that there were more properties likely to be affected. The councillors considered all these points and objections from local residents, which were recorded in the report. They made an informed decision having heard all the arguments for and against. I cannot question the merits of that decision.
  3. I also note this is a decision about which is the Council’s preferred site. Any injustice to Mrs B would result from the impact on her from occupation of the site. For the site to go ahead in any form that would last longer than 28 days, it needs planning permission. It is during the planning application that Mrs B will have a more formal opportunity to give objections and outline any impact she considers the proposal will have on her amenity. At this time she can also raise any concerns about the site not meeting with the criteria in the Guidance.
  4. I cannot find fault with the Council for being unclear in the meeting about whether it intended to apply for planning permission for a temporary site. It has not built a site without planning permission and has indicated it will apply for permission.

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Final decision

  1. The Council is not at fault in how it reached its decision.

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Investigator's decision on behalf of the Ombudsman

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