Summary: We will not investigate this complaint about the Council’s decision to approve three planning applications during lockdown. The complaints about the first two applications are late and we have seen no reason to exercise discretion. And we have not seen evidence of fault in the process the Council followed leading to its approval of the third application.

The complaint

1. The complainant, I shall call Mr B, complains about the Council’s decisions to approve three planning applications during lockdown.
2. He says not many residents have access to online meetings which eroded their democratic right to be heard.
3. He also complains about he way the Council Officer presented the planning report to a virtual committee letting. And the Council’s acceptance of reported provided by the developer without question.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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”.
7. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

8. I considered information provided by the Mr B and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mr B complains about the Councils decision to approve three planning applications during lockdown restrictions due to the Covid-19 pandemic.
11. The first planning application was for a bat barn and bat boxes. Site notices were put up and the application was published on the Council’s website.
12. The case officer prepared a report of the scheme which included:
• the national and local policies relevant to the application
• a summary of the objections received; and
• the officer’s opinion on the application and recommendation for approval.
13. A senior officer considered the application and agreed with the case officer’s recommendation. The application was approved under the Council’s scheme of delegated authority in May 2020.
14. The second application was a prior approval application for the demolition of buildings on the proposed site.
15. Permitted development rights are a national grant of planning permission. These allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority.
16. For some types of permitted developments rights applicants must obtain ‘prior approval’ from the council to authorise certain elements of the work before carrying out the development.
17. The Council put up site notices and the application was published on the Council’s website.
18. The case officer prepared a report of the scheme which included:
• the national and local policies relevant to the application
• a summary of the objections received; and
• the officer’s opinion on the application and recommendation for approval.
19. A senior officer considered the application and agreed with the case officer’s recommendation. The application was approved under the Council’s scheme of delegated authority in June 2020.
20. The law says a person should approach the Ombudsman within 12 months of becoming aware of the substantive issue they wish to complain about – this is called the ‘permitted period’.
21. Mr B did not complaint to us until August 2021. Therefore, his complaints about these two applications are late.
22. We can disapply this time limit where we consider there are good reasons for the delay. Mr B says the three applications are linked and the final one was not considered by the Planning Committee until December 2020. But his concerns about the two earlier applications are particular to those applications and I have seen no reason why Mr B could not have approached us earlier with his concerns about these. Nor is there evidence of fault in the way the Council considered the applications. Therefore, I consider Mr B’s complaints about these applications are late and there is no reason to exercise discretion and investigate.
23. The final application Mr B complains about was an outline application for up to 100 homes on the site with all matters reserved except access. The Council received this application in 2019. It publicised the application.
24. The case officer visited the site and wrote a report on the scheme. The report includes a summary of all the objections to the application, including (but not limited to) those from the public, the parish council, the Council’s tree officer and the local MP.
25. Mr B says the head of planning presented the application to the committee which included the recommendation for approval. He says the committee members would not go against the officer. However, the committee members would have had access to the case officer report for at least a week before the meeting and would have been fully aware of the content of the report including the recommendation before the presentation.
26. The planning committee members were the decision makers in this case, not the officer. The recording of the meeting shows the committee considered the application and asked questions. In some case the officers were not able to answer the questions. The committee could have decided to defer the decision on the application if they felt they did not have enough information. They did not. They decided they had sufficient information to make a decision and, following debate voted to approve the application with no votes against.
27. 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. Without fault in the decision-making process, we cannot question the decision itself.
28. The planning officer’s report lays out what legislation has applied to the case and why the officer has made their recommendation. The officer decided the application was acceptable. This is a professional judgement and decision the officer is entitled to make.
29. The planning committee considered the officer’s report and heard from people both for and against the application before making its decision. While Mr B may disagree with the decision, this does not make it wrong.
30. Mr B says by holding a virtual meeting during lockdown, the Council eroded the democratic rights of those who may not have had access to the online meeting. But Mr B does not have any consent to complain of behalf of any other person. Therefore, we can only consider his concerns. He was aware of the date of the meeting and made representations. He chose not to attend the online meeting due to another engagement.

31. The Coronavirus Act 2020 allows councils to hold their formal meetings including planning committee meetings remotely. In a letter from the Chief Planning Officer, councils were encouraged to continue working and making planning decisions with no changes made to statutory deadlines.
32. The agenda for the planning meeting was published on the Council’s website, along with a link to view the meeting on You Tube. Anyone who wanted to speak at the meeting had to register. Those who could not access the online meeting could write to the Council with their comments before the meeting. Any written submissions would be given to Committee Members before the meeting and published online.
33. There is no evidence of fault in the Council’s consideration of the application at a virtual meeting.
34. Mr B also says the officer who presented the application gave his views that the application should be approved. He also says the Council accepted reports provided by the applicant without question.
35. It is for the Committee to decide whether it has enough information to decide on an application. In this case the Committee was satisfied and decided to approve the scheme.

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Final decision

36. I will not investigate this complaint. This is because Mr B’s complaints about the first two planning applications are late, and I have seen no reason to exercise discretion. Turning to the third application, I have seen no evidence of fault in the Council’s consideration of the proposal at a virtual meeting.

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Investigator's decision on behalf of the Ombudsman