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Mid Devon District Council (20 007 583)

Category : Planning > COVID-19

Decision : Upheld

Decision date : 02 Aug 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the way the Council consulted on planned local development during the COVID-19 pandemic. She said the Council excluded some older residents, and those who cannot access the Internet. The Ombudsman found the Council was not at fault in the way it carried out consultation. It was at fault for a delay responding to Mrs X’s complaint, but its apology is sufficient remedy.

The complaint

  1. Mrs X complained about the way the Council consulted on planned local development during the Covid-19 pandemic. She said the Council:
    • Used government guidance to avoid carrying out proper consultation.
    • Only published plans online.
    • Rushed through non-essential plans which could have waited until the government eased lockdown restrictions.
  2. As a result, Mrs X said the Council excluded some older residents, and those who cannot access the Internet.
  3. Mrs X says she suffered distress and frustration, as well as a sense of outrage, and she went to time and trouble complaining to the Council.

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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)
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Town and Country Planning Act 1990.
    • The Council’s Statement of Community Involvement (October 2016. Revised July 2020).
    • The Coronavirus Act 2020.
    • Ministry of Housing, Communities and Local Government Guidance on plan-making (updated 21 July 2020).
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Councils must have an up-to-date Statement of Community Involvement (SCI) setting out how consultation fits within the wider local plan process.
  2. The government issued guidance to councils on progressing local plans and updating their SCI during the COVID-19 outbreak to ensure members of the public could still engage.
  3. The guidance strongly encouraged councils to use online engagement, including virtual exhibitions, digital consultations, video conferencing, social media, and providing documents on their public website.
  4. The government asked councils to take reasonable steps to involve people without Internet access. Councils could consult by telephone or in writing where alternatives were not available.
  5. The Council’s SCI states it will carry out two stages of consultation when preparing a masterplan for development. It will use direct contact methods to consult relevant bodies, town and parish councils, and local residents and businesses.
  6. The Council will publicise the masterplan in the press, on its website, via social media, at public meetings, and with site notices.

What happened

  1. The Council adopted the Eastern Urban Extension masterplan for a town in its area in 2014. The development site, which is intended for new housing, was split into Area A and Area B. The Council later developed an extra masterplan for Area B to address some specific issues about Area B which the Council could not cover in the original masterplan. In summer 2017 the Council completed stage one of its public consultation on the Area B masterplan. That covered site access, development phases, the extent and amount of development, and the green infrastructure.
  2. In January 2020, the Council submitted a report to its Cabinet seeking approval for stage two public consultation of the Area B masterplan. Cabinet approved the plans on 16 January 2020.
  3. The Council started its six-week public consultation on 27 February 2020. It planned four staffed events which the public could attend. It advertised the events on its website, via social media, through letter drops, on public notices, using press releases, and with permanent exhibitions on display at public locations. It intended to end consultation by 9 April.
  4. The Council held its first two staffed events on 2 and 14 March. About 70 people attended the events in total.
  5. On 16 March, the Council cancelled the final two planned staffed events because of government guidance for people to stay at home and avoid non-essential travel. The Council publicised the cancellation on its website and social media account. It also issued a press release, and a local newspaper published the story on its website on 18 March. It gave a contact number for the lead planning officer if people had queries and told people it had moved the public displays.
  6. Instead of the scheduled public event on 18 March, the public could contact the lead planning officer by phone between 10am and 12pm on the same day to discuss the proposals.
  7. Due to the COVID-19 pandemic, the Council closed its offices on 19 March and staff worked from home. That meant the Council had to cancel a further telephone session planned for 26 March because officers could not use their usual office telephone number while working from home.
  8. On 23 March, the government announced a national lockdown to reduce the spread of COVID-19. This meant people had to stay at home and could only go out for essential reasons.
  9. Also on 23 March, the Chief Planning Officer for England wrote to councils about decision making during COVID-19. The letter emphasised the importance of planning to the national and local economy. It advised councils to:
    • Continue working and making planning decisions without changing deadlines.
    • Use innovative approaches to decision making.
    • Continue working with their communities to progress local plans.
  10. Because of the national lockdown, the Council cancelled a consultation event planned at a local market on 27 March.
  11. The Council decided to extend the consultation period to 23 April. It announced this on social media on 7 April. It also arranged a press release (printed in newspapers) which it made on 8 April.
  12. The Council held a second telephone session on 9 April between 10am and 1pm so the public could speak to planning officers.
  13. A local newspaper ran a story about the extended consultation period, and how the public should contact planning officers, on 14 April.
  14. The Council held two more telephone sessions on 16 and 21 April, the first between 2pm and 5pm, the second between 9am and 12pm.
  15. Mrs X complained to the Council on 19 April about its stage two consultation. She said the Council did not consult in line with its charter because it did not send letters to residents or display notices at the site. She also said the Council did not make any printed press releases. She said the Council was discriminating against the elderly and those without Internet access.
  16. The Council replied on 15 May but did not uphold Mrs X’s complaint. It said:
    • It held two public events and intended to hold two more which it cancelled due to COVID-19.
    • The charter Mrs X referred to related to planning applications, not local plans. It said it opened its consultation on 27 February and complied with its SCI, which has similar requirements.
    • Its consultation included a letter drop to over 2,000 homes and businesses, with public site notices, a press release, and social media announcements. There were also permanent exhibitions at two locations and all associated information was available on the Council’s website.
    • When it cancelled the final two events, it announced this through a press release and via social media, including details of dedicated times the public could telephone officers. The time it set aside was more than it planned for the public events, and it spread the call times through the day and week for convenience.
    • The first phone in event took place, but the second did not due to the national lockdown. The Council set up mobile contacts in April instead. It announced this in a further press release and via social media.
    • It took practical steps to maximise opportunity for public comment, while adhering to the government guidance about non-essential contact and keeping the planning system moving.
    • It is updating its SCI in line with the latest government advice and considered the consultation methods used were suitable.
  17. The Council exchanged emails with Mrs X on 27 March about access to Area B. It confirmed the draft masterplan proposed access via Area A and not by a local road Mrs X referred to.
  18. Mrs X was unhappy with the Council’s complaint reply. On 11 June, she told the Council it discriminated against elderly and vulnerable people shielding from Covid-19 when it came to sharing information. She also said the Council discriminated against people who cannot use or access a computer.
  19. Mrs X also said the online material was difficult to see and the Council had not explained all sections. It needed to hold a public meeting so people could understand what is in the minds of planners. She asked if it was possible for the public to see the verbal comments made to officers. She said the Council did not record her call to a planning officer and she doubted the officer had time to take notes.
  20. Mrs X did not agree it was important to continue with the consultation during a pandemic. She said construction cannot start until there is access to Area A.
  21. Mrs X brought her complaint to the Ombudsman on 6 November 2020 as she had still not received a final response from the Council.
  22. The Council sent its final complaint response on 9 November 2020. It said government guidance and legislation about COVID-19 impacted its ability to fulfil some requirements of its SCI. However, the government made it clear councils should try to continue providing public services and help the economy. It referred to the advice from England’s Chief Planning Officer on 23 March 2020. It also referred to government guidance from 13 May 2020, which was that councils should update their SCI so plan making can continue. The guidance said councils should promote engagement by reasonably practicable means. The guidance strongly encouraged councils to use online engagement.
  23. The Council repeated what it told Mrs X in its first complaint response about how it extended the deadline and held telephone consultations. It also confirmed how it communicated this to the public. It pointed out that Mrs X discussed her concerns about the plans with the lead officer by telephone.
  24. The Council said changes to the public consultation were necessary in the circumstances. It put proportionate alternate events in place that it advertised. That did not include a letter drop or notices, but included press releases, social media posts and website updates. It considers that was enough.
  25. The Council said it was not realistic to delay the consultation indefinitely until it could be completed as originally planned. It did not know when the situation might return to normal.
  26. The Council disagreed with Mrs X’s thinking that planning for Area B did not need to happen for several years. It said large sites take many years with much work pre- and post-planning until construction takes place. It said the Council was granted £8.2m funding for the second phase of the new junction accessing the site, and needs timely decision-making to meet its plans for housing delivery.
  27. The Council did not uphold Mrs X’s complaint but apologised for the unacceptable delay in providing a final complaint response.

Response to my enquiries

  1. The Council explained the proposed development is a significant, mixed use, development planned to provide up to 1830 houses. The adopted masterplan did not fully resolve the land use across the whole development and could not address the whole site in detail. The Council needed a further masterplan for the area of the site known as Area B.
  2. A separate masterplan for Area B is important because:
    • It is a large site, needing preparation work years before construction.
    • The Council must meet a government housing delivery test on number of homes built each year. The Council has met the requirements so far but needs a pipeline of development to continue to meet the test in future.
    • The Council has obtained £8.2m of funding from Homes England for a highway junction serving the development. The funding is available on the basis the Council delivers housing. It therefore needs to work to its plan and not delay. Completion of the masterplan is a necessary step in the process.
    • Council policy requires public masterplanning to be completed for Area B before proposals can progress through the planning process.
    • The Area B masterplan is phased, as is Area A. It cannot be assumed Area B will only be developed once Area A is complete. This is to give the Council flexibility in case development of Area A stalls.
  3. The Council told me it carried out the second of its two staged public consultation under its SCI. It cancelled the public events arranged for 18 and 27 March on safety grounds in line with government guidance. It appreciates the need for public representation but said there was also a need for this to happen safely, without encouraging non-essential travel or gatherings. It also considered the fact two of the four planned events had already taken place.
  4. The second telephone event could not take place as planned because staff were working from home and their office telephone numbers were not set up to work at home. A further contact session was set up by mobile phone. The Council also kept its switchboard open so messages could be passed to planning officers. Officers were available by email and phone to discuss the proposals and answer questions.
  5. The Council said it issued press notices and displayed material in two public locations to cater for the needs of those less able to engage digitally. It considered posting site notices but decided against them due to the guidance to stay home and avoid non-essential travel.
  6. Its use of online and alternate engagement to ensure consultations went ahead was in line with advice from England’s Chief Planning Officer and government guidance.
  7. It made changes to its draft masterplan after considering consultation responses. This included material updates and grammatical changes. The amendments were presented in a report to the Council’s Cabinet on 3 September 2020.
  8. The Council accepted the five-month delay providing Mrs X a stage two response to her complaint was unacceptably long. It said demands on service managers during the pandemic has been extensive, but its stage two response recognises the delay was too long and the Council apologised to Mrs X for this.

Analysis

  1. It is for the Council to decide local planning matters and their priority, not the Ombudsman. The Council has explained why it could not delay its consultation. Mrs X may disagree with the Council’s actions, or the reasons given, but I have not seen evidence of fault. The Council did not make an arbitrary decision. It explained why it chose to continue the consultation and there could have been funding implications for the Council if it had fallen behind schedule.
  2. The Council responded to the COVID-19 pandemic, in line with national guidance, by looking at other ways of keeping planning going and not stopping services. Mrs X wanted the Council to delay the consultation. That would have been contrary to government guidance and, in the Council’s view, not in the best interests of its longer-term priorities.
  3. Mrs X raised valid concerns about the alternative ways the Council chose to hold consultation. However, on the evidence seen, the consultation methods the Council used were in keeping with government guidance and broadly in line with its SCI.
  4. The Council was mindful of providing a service accessible to as many people as possible. The government guidance was for councils to take reasonable steps. It used online and social media, as well as traditional print media, to advertise cancelling events and extended the consultation period. It held consultation by telephone and information was always displayed in some public places which remained accessible. The Council was dealing with unprecedented times, and I have taken that into account. Consultation was not perfect, but we would not expect it to be, given the circumstances. I have not seen evidence of fault in the Council’s approach, or that it was not prepared to work flexibly.
  5. Government guidance suggested councils use digital engagement, but also consider those not able to digitally engage. The COVID-19 national lockdown restrictions made it difficult for the Council to effectively consult with all of the public. Inevitably that meant it was more difficult for some people to take part in the consultation.
  6. The Council chose not to do another letter drop. Instead it made press releases and used social media. This was a decision it was entitled to make and was not fault. Producing letters would mean staff going into the office, and I am mindful that would be contrary to government guidance. I have also considered the fact the Council had already told the public at the outset of the consultation, including by letter, and some had already engaged. It was still possible for the public to contact the Council with queries throughout the COVID-19 lockdown periods.
  7. I have not seen evidence Mrs X suffered any significant personal injustice. She spoke to the lead officer and made comments by email, which the Council responded to.
  8. As Mrs X pointed out, it is possible some members of the public were disenfranchised by the Council’s methods of consultation. However, on the evidence seen, that did not arise because of any fault by the Council.
  9. The Council was at fault for an unacceptable delay completing its stage two response. That caused Mrs X avoidable frustration. However, the Council provided a stage one response, did eventually provide a stage two response, and apologised for the delay. I consider that remedies the injustice.

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Final decision

  1. I have completed my investigation. The Ombudsman found the Council was not at fault in the way it carried out consultation. It was at fault for a delay responding to Mrs X’s complaint, but its apology is sufficient remedy.

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Investigator's decision on behalf of the Ombudsman

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