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.
- 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.
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 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)
- 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)
- 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”.
- 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)
How I considered this complaint
- 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).
What I found
- Councils must have an up-to-date Statement of Community Involvement (SCI) setting out how consultation fits within the wider local plan process.
- 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.
- 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.
- 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.
- 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.
- The Council will publicise the masterplan in the press, on its website, via social media, at public meetings, and with site notices.
- 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.
- 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.
- 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.
- The Council held its first two staffed events on 2 and 14 March. About 70 people attended the events in total.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Response to my enquiries
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Investigator's decision on behalf of the Ombudsman