Decision : Closed after initial enquiries
Decision date : 23 Feb 2021
The Ombudsman's final decision:
Summary: Mr B complains about the Council’s decision to progress a planning application during the Covid-19 pandemic. The Ombudsman cannot investigate the complaint about progressing the planning application as the injustice claimed by Mr B affects all or most of the residents of the area. And we have not seen evidence to support his claim the Council ignored the conservation area and world heritage site. Therefore it is unlikely we will find fault, or that further investigation will lead to a different outcome.
- The complainant, who I shall call Mr B, complains the Council applied for planning permission for its own development before finalising its local plan. He says the application contained errors and was inconsistent with the emerging local plan and local policies.
- Mr B says the Council chose to promote this project at a time of intense current pressure on resources and future uncertainty. He also believes there is no evidence of market need for the development.
- Mr B says using resources and potential financial burdens due to early development of the site will have a negative impact on him as a taxpayer.
- Mr B also says the Council has disregarded the impact of the development on a conservation area and world heritage site.
The Ombudsman’s role and powers
- 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”.
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault
- it is unlikely further investigation will lead to a different outcome
(Local Government Act 1974, section 24A(6), as amended)
- We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
- 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)
How I considered this complaint
- I considered information provided by Mr B and the Council. I also considered Mr B’s comments on the draft version of this decision.
What I found
- Mr B argues the Council should not have proposed and determined a planning application to develop a site that it owns during the Covid pandemic. He says by doing so the Council wasted resources at a time of great financial pressure. He also believes there is no evidence of market need for such development.
- The Government encouraged councils to continue working and deciding planning applications during the pandemic, with no changes made to statutory deadlines.
- Mr B says the injustice arising from the Council’s decision to progress the planning application during the pandemic is an unnecessary pressure on resources and possible financial burden in the future.
- This potential injustice is not restricted to Mr B alone. Using resources and possible financial burden arising from the development affects all residents in the Council’s area, whether they are taxpayers or not. The law says we cannot investigate matters that affect all or most of the people in a council’s area. Therefore, this complaint is caught by the restriction described at paragraph 7 above.
- Mr B also complains the Council promoted the application to a timetable which had envisaged planning permission being granted before the Local Plan was finalised. He says it sought to include lower planning and design standards and protective conditions than were envisaged in the emerging Local Plan.
- The Planning Officer prepared a report for the Council’s planning committee. It confirms most of the site is within the world heritage site and a small area falls within the city conservation area. The Council consulted statutory consultees.
- Historic England had no objection to the scheme commenting:
“It is noted that the site lies within the outer setting of the World Heritage Site (WHS) and near to the northern edge of Durham City Centre Conservation Area, and that it is experienced in combination with the WHS in a variety of ways, but when visually combined, the distance between the two ensures that the site forms one element in a broad backdrop. There are fine views towards the WHS from within the site.”
- The Council also consulted its archaeology, conservation and ecology officers who raised no objections. The landscape officer considered the degree of harm to be neutral.
- The report notes various groups objected to the scheme including but not limited to:
- City Trust;
- a residents’ association;
- a road action group;
- 11 members of the public.
In response to my draft decision, Mr B says he is directly exposed to loss of amenity and to increased traffic and other disturbances because of the approved development. Yet Mr B chose not to objection to the proposal or make any representations during the planning process.
- It is for planning officers and committee members to balance both national and local policy and decide to approve an application or not. We must consider whether there was fault in how the Council did this, not whether the decision was right or wrong.
- The officer decided the application would not have a significant harmful impact on the conservation area and world heritage site. Having considered the relevant policies and comments, this is a professional judgement the officer is entitled to make.
- The Council was not required to delay the planning application process because of Covid. The planning officer’s report lays out what legislation has applied to the case and the relative national and local policies which apply. The report also details the objections receive and the harm to heritage assets. The Planning Committee considered the report. It debated the proposal before deciding to approve the application.
- I will not investigate this complaint about the Council progressing its planning application during the Covid-19 pandemic. This matter affects all or most of the people of the area.
- I understand Mr B disagrees with my view, but I have seen no evidence of fault to support his complaint the Council promoted the application to a timetable which had envisaged planning permission being granted before the Local Plan was finalised. And which sought to include lower planning and design standards and protective conditions than were envisaged in the emerging Local Plan.
- It is therefore unlikely that further investigation will find fault or lead to a different outcome.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman