The Ombudsman's final decision:
Summary: The Ombudsman found no evidence of fault on Mr D’s complaint about an officer granting planning consent. The officer’s email was poorly worded but he did not, and could not ,grant consent. There was no fault in the way Mr D was dealt with during a Cabinet meeting. He made points which were considered. Any injustice from the summary only version of his representations will be remedied by the planning inspector’s examination. I exercised discretion not to investigate the remaining complaints as they raise issues the planning inspectorate can consider.
- Mr D complains that when the Council included a plot of land in its Housing Site Allocations Plan (pre-submission draft plan), it made the following mistakes:
- It allowed the plot’s inclusion as it was ‘developer led’ which is evidenced by the developer already completing surveys and digging sample pits;
- The arboricultural and landscape officer granted permission for the removal of a section of important hedging around the site for access;
- Breached policy by failing to protect footpaths on the site;
- Ignored and failed to take account of evidence, such as flooding and the consultation response from Natural England;
- Failed to carry out wildlife and archaeological surveys;
- Reduced his 80-page submission to just over 3 pages; and
- Cut him off during his verbal presentation to the Cabinet.
What I have investigated
- The paragraph at the end of this draft decision explains why I did not investigate complaints a), c), d), and e).
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered all the information Mr D provided, including the notes I made of our telephone conversation. I sent a copy of my draft decision to Mr D and the Council. I considered their responses.
What I found
- Mr D is unhappy with the way the Council included and considered a plot of land in its Housing Site Allocations Plan (pre-submission draft plan). The land is near his home. One of the aims of the plan is to allocate new sites for housing to allow the Council to maintain a 5-year land supply for housing development. The plot could provide up to 180 new homes.
- The Council issued the plan which it put out for public consultation. The plan noted under the National Planning Policy Framework (paragraph 182), it would be ‘examined by an independent Inspector whose role is to assess whether the plan has been prepared in accordance with the Duty to Co-operate, legal and procedural requirements, and whether it is sound’.
- The consultation period ran from 14 July 2017 to 22 September 2017. Mr D sent his 80-page submission against the proposal to include this plot.
- I considered the following complaints from Mr D:
- The email Mr D was concerned about was sent to him in November 2017 about his fears the hedgerow might be destroyed. The aboricultural and landscape officer who sent it explained there was a desire by various interested parties not to remove existing trees or any part of the hedgerow apart from one small section to make way for emergency access. The officer ended the email by stating, ‘and should the development gain consent, they would be permitted to remove the small, 7 m section of the hedge’.
- Mr D interpreted this to mean the officer had granted consent. In its response to his complaint in June 2018, the Council noted this sentence in isolation might be read as the officer saying the developer had permission to remove part of the hedgerow. With hindsight, the Council noted it would have been better for the officer to have said if the development gained consent, ‘it is likely’ they would be permitted to remove this part of the hedge.
- I am satisfied the email made it clear any removal of part of the hedgerow was conditional on the developer getting consent. The email does not give the developer planning consent. Nor could the developer gain consent this way, particularly from someone who was not even a planning officer.
- The officer’s drafting of the email was poor. The email needed to further clarify that gaining planning consent for the development would not automatically mean the developer gained consent to remove this part of the hedge. As the Council noted in its response to Mr D’s complaint, the officer should have gone on to state, in his opinion, planning consent was likely, although not guaranteed, to allow part of the removal.
- I am not satisfied the poor drafting of this email amounted to fault in these circumstances. Nor do I see what injustice was caused to Mr D from receiving it. The Council explained to him that no consent was granted by this officer and nor could the officer grant such consent. The developer had not applied formally for planning consent.
- Should the Council receive an application for planning consent, it will follow the usual planning application procedure which includes consultation. Consultation requirements are set out nationally and locally.
- Should it receive a ‘hedgerow removal notice’, the Council would need to formally consider it and the process involves some consultation (The Hedgerow Regulations 1997).
- Any concerns Mr D has about the loss of this part of the hedgerow is, therefore, speculative.
- Mr D complained his 80-page submission about the proposed inclusion of this plot in the plan was reduced to just over 3 pages at the June 2017 Cabinet meeting. The Cabinet went on to approve the plan in May 2018.
- In its response to Mr D’s complaint, the Council noted due to the number and size of responses received, it had to group them according to related areas or key issues. The response went on to note an appendix to the cabinet report set out the full text of Mr D’s submissions. It also noted background papers were publicly available on its website and would be made available to the planning inspector in full.
- I have been unable to open the relevant files on the Council’s website showing the text of Mr D’s submissions because of their size. While the Council did not send a copy of the file, I am satisfied there is no injustice to Mr D on this complaint justifying any further investigation even if there was fault. This is because a full version of Mr D’s submission was available had the Cabinet wanted to see it. In addition, the planning inspector will see his representation during the examination stage of the plan.
- Mr D complained the chair, during the Cabinet meeting, cut his verbal representations short.
- I watched the webcast recording of part of the meeting at which Mr D spoke. During that period, I saw Mr D speaking about officer and developer contact, as well as about the email he claimed gave consent for the removal of part of the hedgerow.
- I found no fault on this complaint because:
- The chair explained officers always meet developers;
- As Mr D mentioned he had made a complaint, the chair noted it was not for the Cabinet to address it at the meeting;
- A senior planning officer explained the email referred to was sent by an arboricultural and landscape officer, not a planning officer. No planning officer was present at the meeting referred to in it and it was noted the email said ‘should’ consent be granted. It was also explained this was not how planning consent worked. There was a process to get consent that needed following;
- The chair asked for a legal officer to address the point Mr D raised about the reduction of his 80-page submission to just over 3 pages. This officer said the Council sent a detailed response to Mr D and was satisfied it had complied with statutory provisions; and
- The chair ended and moved the discussion on by noting disagreements of this nature were the type of issues the planning inspector would deal with during the examination process.
- I am satisfied the chair treated Mr D with courtesy and both explored, and addressed, his points. The chair did not cut off Mr D but moved the discussion on as she reasonably concluded the meeting had addressed the issues he raised.
- The Ombudsman found no fault on Mr D’s complaint against the Council.
Parts of the complaint that I did not investigate
- I did not investigate complaints a), c), d), and e). The issues raised in these complaints will be looked at by a planning inspector. This is because the Council must send the draft plan with supporting documents to the planning inspectorate who will exam it on behalf of the secretary of state. I note the Council has now done this.
- During this process, the inspector will look to see if it was prepared according to legal requirements and meets the test of ‘soundness’ set out in the National Planning Policy Framework.
- The inspector also looks at the ‘duty to co-operate’ (section 110 Localism Act 2011 which amends section 33 Planning Compulsory Purchase Act 2004). The Council has a legal duty to engage constructively, actively, and on an ongoing basis to maximise the effectiveness of the plan. This covers cross boundary strategic matters and involves other public bodies. The Council must show it complied with this duty for the examination to proceed.
- The examination also looks at whether the draft is ‘sound’ (paragraph 35, National Planning Policy Framework). This includes assessing whether it is justified, effective, and consistent with national policy.
- The planning inspectorate’s guidance sets out what the Council will have to provide as part of that process (Procedural Practice in the Examination of Local Plans: 2016).
- This includes:
- the plan;
- a sustainability report;
- a statement of community involvement as well as a statement showing who was invited to make representations, how they were invited, a summary of the issues raised, and how the representations were taken in to account;
- the number of representations received and copies;
- supporting documents relevant to the preparation of the plan; and
- habitat regulations and appropriate assessment, unless Natural England write to say this is not necessary.
- The guide also notes one of the early tasks for the inspector is to decide matters and issues for investigation which includes flood risk, for example.
Investigator's decision on behalf of the Ombudsman