Summary: There is no evidence of fault in the Council’s handling of a planning application for a site near Mr X’s home.

The complaint

1. Mr X says the Council is at fault in how it has handled matters relating to a planning application for a site near his home. He says this resulted in the Planning Committee being misdirected and therefore its decision to grant approval is unsound and should be revoked.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

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How I considered this complaint

5. As part of my investigation I considered information provided by Mr X and the details of his complaint. I also had regard to the relevant Council policies, legislation and planning application documents. A draft copy of this decision was also sent to both parties, and their comments considered.

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What I found

Relevant documents

East Lindsay District Council Constitution

6. This explains how the Council operates, how its decision are made and the procedures it follows to make sure these decisions are efficient, transparent and accountable to local people.

East Lindsay District Council Local Plan Core Strategy

7. This explains the Council’s strategy for growth and development within its boundaries.
8. Strategic Policy 25 (SP25) sets out how the Council will safeguard and deliver a network of accessible green infrastructure. It says the Council will require the provisions of multi-functional green infrastructure (such as recreational areas) on housing sites over 1 hectare.

East Lindsay District Council ‘Have your say on planning applications’ leaflet

9. This provides guidance to residents speaking at Planning Committee meetings. It says residents will be able to speak for three minutes and should focus on material planning considerations as the Committee cannot take into account other matters. Residents should not make derogatory or defamatory statements as there is no legal protection for comments made by the public.

East Lindsay District Council, Cooperate Enforcement Policy

10. This explains how the Council will consider initiating formal enforcement actions.

Background information

11. In 2014 the Council received a planning application for a site next to Mr X’s home. The application sought to demolish the existing dwelling and to erect up to 25 dwellings.
12. The site features a pattern of ridges and furrows which are associated with medieval ploughing techniques. It also features a pond which has not run dry and for this reason, it is thought it may be fed by a nearby spring.
13. The Council’s Planning Committee refused the application in early 2016 citing concerns about the impact of the proposal on the development and character of the area.
14. The applicant appealed to the Planning Inspectorate which allowed the appeal in November 2016, subject to conditions. These included a condition that any application for the approval of reserved matters relating to layout must include a proposed surface water drainage strategy for the whole site. This strategy must include an assessment of the hydrological and hydrogeological context of the development.
15. A further condition said no development could take place until a scheme specifying a proposed method of recording the ridge and furrow features within the site had been submitted and approved. It must also be fully implemented prior to development starting.
16. In November 2018 the Council received a reserved matters application for the layout of the site. It consulted nearby residents including Mr X who submitted objections which included concerns about the pond at the site. In his objections Mr X said the following:

• The pond can been seen on maps since the 1800s and so was there before the current owner bought the site in 1978. For this reason, submissions by the applicant saying otherwise were misleading.
• That developers were pumping out the pond before any survey was undertaken
• A flood risk assessment submitted by the developer was wrong and the required hydrological assessment had not been undertaken. Other conditions had also not been met.

17. Before the Council decided the application, Mr X meet planning officers to discuss his concerns about the pond. A record of the meeting says the Mr X was told that drainage details were still being considered by the Planning and Drainage group (PAD) who were carrying out further tests under the instruction of the County Council. He was advised the results of the tests would be considered at future PAD meetings and the drainage strategy revised if a spring was proven to feed the pond.
18. Mr X also provided the officers with a list of all the business partners involved in the applicant’s business and their links to a County Councillor and the Council’s finances. Mr X also suggested the company carrying out surveys of the site did not have required expertise to do so.
19. The application continued to be considered and was discussed at subsequent PAD meetings. The application was also discussed at Multi Agency Group (MAG) meetings. These meetings are not open to the public and minutes are not produced for them.
20. Mr X was able to attend a meeting in January 2019 where the application was discussed. Minutes from the meeting show officers could not guarantee the pond was not fed by a spring but agreed to try to determine if this was the case.
21. The case officer report for the application said the following regarding the potential spring at the site:

• The pond had been the subject of investigations and had been pumped out several times as observed by visits from Council officers. The Drainage Officer was satisfied there was no evidence of a spring discharging into the pond but could not fully guarantee one did not exist.
• Any further surface water attenuation required after development commenced could be secured by condition.
• While Mr X was concerned investigations had been insufficient, other agencies, including the PAD, were satisfied with the investigations and supported the proposed drainage scheme.

22. The report also said the application would comply with SP25 as the applicant had included the provision of footbridge to a recreational field near the site. This would benefit the wider village and could be secured by condition. However, the recreational field is not owned by the applicant and there is no public right of way.
23. The Council’s planning portal website shows that the case officer report was not uploaded to it until 12 days after the meeting. However, the Council have provided evidence which shows the report was uploaded to its main website under the ‘committees’ section of its website one week before the meeting.
24. Mr X spoke at the Planning Committee meeting in February 2019. However, he was interrupted by the Chair shortly after he began speaking because he was not discussing relevant material planning considerations. He was referring to the PAD and MAG meetings being held in private and to financial links between the developer and the Council.
25. Following the interruption Mr X was allowed to continue speaking and he spoke for the allowed three minutes.
26. The Planning Committee granted approval of the application subject to conditions including one requiring development be halted should any additional water feed, land drain or spring be encountered. Another condition said that full details of the footpath link to the recreational field must be submitted before the commencement of construction of the first dwelling.
27. Mr X was unhappy and complained to the Council about the conduct of the Planning Committee. He said:

• he had been asked to stop his address for no good reason and the Chair had asked for the recording to stop; and
• he was not allowed to read his prepared statement.

For these reasons he believed the correct process had not been followed and so the planning permission should be revoked.

28. The Council refuted Mr X’s claims. It said a recording of the meeting showed his address was stopped by a councillor in order to remind him to keep to material planning matters. He was then invited to resume his statement. For these reasons it did not agree the correct process had not been followed.
29. Mr X escalated his complaint to the Chief Executive. He said the Planning Committee had been misled by the Council. He also said the Council had breached its constitution because:

• PAD and MAG meetings were held in private which should be not be the case as the outcome of the meetings could affect a person’s rights or possessions. This was also a breach of the Human Rights Act.
• The case officer report for the application was not available before the Planning Committee meeting.
• The Monitoring Officer did not fulfil their functions as they did not ensure the relevant documents were made available to the public as soon as possible nor did they stop the Chair interrupting his address to the Planning Committee.

30. Mr X also said:

• the development was in breach of the Council’s Core Strategy SP25 and the case officer report wilfully misled Committee members on this matter; and
• the minutes of the Planning Committee did not accurately reflect what took place.

31. The Chief Executive replied saying he was satisfied with conclusions reached by the Council. Mr X then approached us for assistance.
32. Since then, the Council has received an application to remove the condition requiring a footpath link which it has not yet determined.

Analysis

Mr X says the Council is breaching Section 23 of its Constitution because meetings of the PAD and MAG are held in private without agendas or minutes being published

33. I do not agree. This part of the Council’s constitution applies to all meeting of the Council, Overview and Regulatory Committees and public meetings of the Executive. It does not apply to meetings such as those of the PAD and MAG. These are meetings set up by the Council’s officers and other relevant bodies to discuss technical aspects of planning applications and other matters.
34. Further, they are not decision-making meetings. Decisions on planning applications that cannot be made under delegated authority are considered at Planning Committee meetings which are open to the public
35. The Planning Committee will consider any views (received as part of the consultation process) relating to matter discussed at meetings by groups like PAD and MAG in the same manner as they would any other relevant material planning considerations.

The Council breached Article 3 (iv) and 13.2 of its constitution when considering the reserved matters application

36. Mr X says the Council’s failure to publish minutes and reports from the PAD and MAG groups does not comply with Article 3 (iv) of the constitution which says that citizens have the right to see any reports or background papers made by the Council, its Executive and officers. I do not consider the meetings of the PAD and MAG groups meet this criterion as they are not decision-making bodies, as explained above.
37. Mr X also contended the Council did not comply with Article 13.2 of its constitution in respect of openness because it did not publish the planning officer report on its website until 12 days after the meeting had taken place. However, while this information was not available on the planning portal until after the committee meeting, it was made available on the committee section of its website. I therefore do not agree that the Council did not make this information available prior to the meeting.
38. Mr X says he and others did not see the report before the Committee meeting, and he was therefore unable to object to how the applicant would meet Core Strategy SP25, by providing a footpath link to recreational field near the site. Which had not previously been mentioned.
39. I am aware that an application to remove the condition relating to footpath has been received by the Council. As the merits of allowing the condition to be removed will be discussed as part of this application, I do not consider Mr X has been caused significant injustice as a result of the fault identified above. This is because he can voice any concerns during the Council’s consultation on the application.
40. The Ombudsman is unable to intervene in the determination of this application. The is a matter for the Council to decide.

There are false statements in the Committee report

41. Mr X says comments in the Committee report are false and misleading. He says the report wrongly stated two pipes enter the pond and supported the applicant’s view that part of the pond is lined. However the Committee members were aware of Mr X’s views on this matter from his objections. They could have pursued this further with officers if they wished.
42. This also applies to photographs which the Council say show the lining but which it could not provide to Mr X as they show private land. It was open to Committee members to request to the see them if they felt it was necessary.

There are discrepancies between what was said in the Committee report and what was said at the Committee meeting

43. Mr X says that during the meeting an officer misrepresented what the drainage officer had said regarding the possibility of a spring being the source of the pond. I do not agree. The report and the officer both acknowledged the drainage officer could not guarantee the pond was not spring-fed.
44. The report also explained to members why a previously agreed drainage scheme was not considered appropriate. This was also explained to members by the officer at the Committee meeting. I understand that Mr X has concerns about the change of view as this had previously been agreed by the PAD group meeting he attended. Again, it was open to Committee members to question the change of view if they had concerns about it.

Officers misdirected the Planning Committee members during the Committee meeting

45. During the Committee meeting, officers told members a condition could address any concerns if it was later found the pond was spring-fed. Mr X contends this was wrong.
46. He says officers should have been able to state categorically if the pond was spring-fed before the application being determined. However, it was for the Committee members to decide if they were satisfied with the information available and whether a condition could address any new information about the source of pond.
47. Similarly, Mr X had set out in his objection his concerns about the competency of the company employed by the applicant to determine the source of the pond. It was for the Committee members to decide what weight, if any, to give to this matter when determining the application.
48. Mr X also says that an officer should not have dismissed questions about the relevance of an ongoing enforcement investigation into breaches of planning control by the developer at the site. While I appreciate why Mr X feels this was important, it was not relevant to determining if the application before members was acceptable in planning terms.

The conduct of the Planning Committee meeting

49. Mr X says the meeting did not follow the correct procedures because he was asked to stop speaking shortly after he began his three-minute address to Committee members.
50. Guidance published on the Council’s website says objectors can speak for up to 3 minutes at committees but must only discuss relevant planning issues such as design, impact on amenity, impact on tress and highways.
51. Mr X says he did not say anything which was not relevant to the determination of the application. I disagree because the recording of the meeting shows Mr X spoke about the processes of the planning application and alleged financial links with the Council, rather than material planning considerations.
52. Further, I disagree with Mr X’s contention the Monitoring Officer, who was present at the meeting, should have commented as I do not consider there were grounds for him to do so.
53. I note Mr X says he had not made the Planning Committee aware of his concerns about the financial links between companies involved at the site before the meeting. He says the Committee Chair second-guessed what he was going to say. However, he raised these concerns in his objection letters and so they were part of the planning file that Councillors and members of the public could access before the Committee meeting. Nevertheless, the recording shows Mr X had clearly made comments regarding his claims so I do not consider the Committee Chair second-guessed what he was going to say.
54. The recording also shows Mr X was invited to continue his address and that he did so. I am satisfied he was able to tell members about his objections that were relevant to material planning considerations.

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Final decision

55. I have concluded my investigation on the basis that there is no evidence of fault in how the Council dealt with the matters raised in Mr X’s complaint.

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Parts of the complaint that I did not investigate

56. Mr X says the Council’s actions have breached the Human Rights Act. This is not a matter we can determine as only the courts can decide if such a breach has occurred.

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Investigator's decision on behalf of the Ombudsman