The Ombudsman's final decision:
Summary: Mr X complained about the way the Council considered a planning application for a development near his home during the COVID-19 pandemic. There was no fault in the decision making process.
- Mr X complained about the Council’s approval of a planning application for a development near his home. He said the Council:
- failed to consider evidence of flooding on the development site;
- failed to properly consider whether the proposed development was in accordance with its policies, particularly in relation to establishing a local need;
- provided misleading information to residents; and
- failed to consider the impact for older residents of holding planning committee meetings online during the COVID-19 pandemic.
The Ombudsman’s role and powers
- 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)
- 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)
- 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”.
- 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)
How I considered this complaint
- I considered:
- the information Mr X and the Council provided;
- information available through the Council’s website, including documents relating to the planning application and Council policies;
- relevant law and guidance, as set out below; and
- our guidance on remedies.
What I found
Relevant law and guidance
- Councils should approve planning applications that are in line with policies and the local development plan, unless other material planning considerations indicate they should not.
- Material planning considerations include things like:
- access to the highway;
- risk of flooding; and
- the impact on neighbouring amenity.
Temporary changes to law and guidance in response to COVID-19
- In March 2020, the Government issued a planning update to councils recognising they may face issues due to the COVID-19 pandemic. In respect of planning decision making this said:
“We ask you to take an innovative approach, using all options available to you to
continue your service. We recognise that face-to-face events and meetings may
have to be cancelled but we encourage you to explore every opportunity to use
technology to ensure that discussions and consultations can go ahead. We also
encourage you to consider delegating committee decisions where appropriate.
The Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.
- On 2 April 2020 the Government temporarily amended the law to allow councils to hold virtual council meetings. It issued guidance to say councils should take advantage of these powers to hold virtual planning committees, rather than deferring committee dates.
This Council’s policies
- The Council adopted policy B2 in July 2015. It identified some villages within its area that were constrained by green belt boundaries preventing development. However, it recognised some development was needed on the periphery of those villages but stated this should only be permitted where the proposed development could not be accommodated within the existing built-up area of the village, or the site was preferable for the use proposed. It stated the developer should provide evidence to show the need for a particular development in the village and that alternative site(s) could not accommodate the development.
- Following concerns about how “local need” should be defined and how it should be evidenced, a supplementary planning document, policy B2 SPD, was adopted in September 2019. It stated that local need should be identified through a Local Housing Needs Survey in the village in which the development is proposed. Such a survey should be undertaken by the developer if the Council did not already have one in place.
- In December 2019, as part of a planning appeal in a village covered by these polices, a planning inspector challenged this definition of “local”, pointing out that demonstrating a wider need may include data from the relevant village and that the relevant village could still contribute to meeting a wider need.
- The Equality Act 2010 protects the rights of individuals and suports equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
- The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine listed protected characteristics. The Public Sector Equality Duty also sets out duties for such organisations to follow to stop discrimination. The ‘protected characteristics’ referred to in the Act are:
- gender reassignment,
- marriage and civil partnership,
- pregnancy and maternity,
- religion or belief,
- sex, and
- sexual orientation.
- The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
- Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
- Advance equality of opportunity between people who share a protected characteristic and those who do not.
- Foster good relations between people who share a protected characteristic and those who do not.
- The Duty means public authorities must consider equality and good relations when they develop policies and deliver services. They must also keep these issues under review.
- We cannot decide if a council has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether the council has properly taken account of an individual’s rights in its treatment of them and whether it has had due regard to its public sector equality duty.
- A developer applied to build adaptable bungalows for over 55s in the village where Mr X lives. The Council wrote to over 50 households in the village where the development was proposed to publicise the application.
- Residents objected to the development for several reasons, including:
- the site and local gardens had been known to flood (photographic evidence was provided);
- there had already been a serious road accident in the area and the development would result in increased traffic;
- concerns about contamination affecting the site;
- concerns about loss of privacy and loss of views over open farmland; and
- a local need for the development had not been properly established in accordance with the relevant Council policies.
- the Lead Local Flood Authority (LLFA) had been consulted. It was concerned about whether there was an appropriate formal agreement to allow surface water drainage into private land adjacent to the site. The applicant had provided evidence of a private agreement to that effect.
- although a flood risk assessment was not needed, the developer had provided one, which had been considered by the LLFA, which was satisfied with the proposals for drainage;
- the local Highways department had been consulted. It reported no accidents in the vicinity of the site in the previous 5 years. It considered the proposals acceptable, subject to the provision of an additional pathway;
- concerns about contamination could be addressed by way of a planning condition;
- the possible loss of privacy and amenity to neighbours close to the development was assessed, and no such losses were anticipated;
- Council’s policies B2 and B2 SPD had been challenged in a recent planning appeal, following which the Council had obtained legal advice that local need may be shown based on Borough wide need and not on the basis of the specific village where development was proposed. On this basis, the proposals were considered to be compliant with Council policies since a Borough-wide need for housing of the type proposed had been evidenced and no other alternative site had been identified.
- the Council had consulted widely on the proposal, as evidenced by the residents’ responses. Planning decisions were being taken under emergency powers in line with Government guidance and postponing decisions was not an option under current legislation.
- the members agreed to a change to usual arrangements, reducing the number of members of the public able to speak for or against proposals from five to three, to maintain the efficiency of the online meeting;
- the chair expressed concern that residents were using the pandemic as a “finger pointing tool” in response to comments that the Council was acting in an underhand way by progressing the application at that time;
- three residents spoke against the proposals and a statement from a local councillor was read out. Concerns were expressed about flooding, accidents, possible contamination of the site and whether a local need was properly established;
- the developer said some investigation had already taken place to establish whether the land was contaminated, which had found small levels of asbestos and that action was being taken to address this;
- several committee members raised concerns about the local need issue and whether it should be based on the needs of the specific village only;
- the case officer confirmed no concerns were raised by statutory consultees, they had not seen photographs of flooding, that standard practice with contaminated land was to use a planning condition, and that there was no response from the Parish Council;
- the case officer also explained why the planning inspector’s decision on a different application needed to be taken into account when deciding whether this application complied with Council policies.
- there was no recorded history of flooding on the site. This meant no works or assistance were required following flooding. The responsible bodies were consulted and raised no objections to the drainage proposals. The photos provided by a resident were considered but were undated, so it was not possible to establish whether they were taken during a period of unprecedented flooding;
- the Council apologised that its committee was told there was no response from the Parish Council. In fact, there was a late response, which was missed. That said, the comments made in that response were covered by the residents and included in a councillor report that was read out to the committee. The concerns were also addressed in the case officer’s report;
- the Council noted one resident had submitted evidence of a road accident in 2019. However, the Highways Authority reported no recorded incidents in the previous 5 years and considered the proposals were acceptable. In any event, proposals would only be refused on highways grounds if there was an unacceptable impact on highway safety or the cumulative impacts on the road network were severe, which was a high bar;
- the planning appeal decision had to be given full weight as it represented the most up to date policy interpretation from the Secretary of State; and
- there was a clear message from Government that decisions should be made in the usual timeframes despite the COVID-19 pandemic, which was the context for the chair’s comments during the committee meeting.
- it was for those who had difficulty with technology to seek assistance. The meetings had to be done online and the Council could not “stop the clock” on planning decisions;
- the need for specialist housing was documented and was an appropriate basis to support or resist proposals until a new assessment was undertaken, which was usually every 5 years;
- it confirmed the need to take into account the views of the planning inspector and that appeals do change how policy is interpreted, which was standard practice across the country.
- Planning law requires councils to grant permission unless there are material planning reasons for refusal. The role of the case officer is to consider the relative merits of the application and make recommendations for the committee, based on their view of the balance of those merits. It was for the planning committee, as decision-makers, to debate the merits of the proposal and the case officer’s views, before making a decision on the application. If there is no fault in the decision-making process I cannot comment on the decision reached.
- In relation to flooding, the Council:
- consulted with appropriate bodies, which considered the proposals were acceptable;
- considered the developer’s proposals for drainage and decided these were appropriate, commenting that the new drainage system would improve surface water drainage from the site; and
- considered the private agreement to ensure the drainage proposals were viable.
The impact of COVID-19
- The Government asked councils to take an innovative approach and encouraged them to hold virtual planning committees, rather than deferring decisions. There was an expectation that councils would assist members of the public to engage with the planning process but no specific guidelines on how they should do that.
- In this case the Council wrote to a large number of households to publicise the application and a number of residents objected. Their concerns were addressed in the case officer’s report, as set out above. Therefore, although I acknowledge that residents did not have the opportunity to meet together to agree a joint response, I do consider the Council took sufficient steps to ensure they could comment on the proposals.
- The Council had the option, under the Guidance, of delegating decisions to officers under emergency powers rather than holding online planning committee meetings. It decided to hold online meetings but to reduce the number of speakers to ensure these ran smoothly. This was proposed and agreed by committee members and there was no fault in the way it did this. I note that in this case three residents spoke against the proposals and in addition the chair allowed a written statement from a local councillor to be read out in full. This in effect meant four representations against the proposals.
- Some residents objected on the grounds that they did not have the technology or the ability to use the technology to participate in an online meeting and asked the Council to defer its decision until such time as public meetings could be held. The Council acted in line with Government guidance when it refused to defer the decision on the sole grounds that public meetings were not possible. This was not fault.
- Under the Equality Act 2010, the Council has an anticipatory duty to consider whether residents may need reasonable adjustments. However, this only applies to people with disabilities. Mr X does not have a disability and I am not aware the residents objecting had a disability that meant they need the Council to make reasonable adjustments for them..
- I have considered whether the Council’s approach caused an injustice in this case. I am told that many of the residents were over 70 and not able to use the technology needed for online meetings. However, as already mentioned, the Council consulted widely with local residents, who had an opportunity to comment either online or by post. And at the planning committee meeting itself, the maximum number of residents spoke against the proposals. Although other residents may have wanted to view the discussions it would not have been possible for any additional residents to speak at the meeting. In addition, I am not aware of any concerns there were not addressed either in the case officer’s report or in the planning committee meeting. Therefore, I do not consider the Council’s caused an injustice when this particular planning application was considered and will not pursue this issue further.
- Mr X also complained about delays in the complaints handling process. There was no delay in the Council’s response to his initial complaint and it did respond to the issues he raised. Mr X raised further concerns in early October 2020, but the Council did not respond to that until late January 2021. Although this is longer than I would expect to see, and is outside the timescales in the Council’s complaints policy, I do not consider this warrants a formal finding of fault.
- I have completed my investigation. I have not found fault.
Investigator's decision on behalf of the Ombudsman