Wakefield City Council (19 007 218)

Category : Planning > Other

Decision : Not upheld

Decision date : 10 Dec 2019

The Ombudsman's final decision:

Summary: The Ombudsman found no significant injustice to Mr G on his complaint against the Council about its refusal to register previously developed and contaminated land he owns on to Part 1 of the Brownfield Land Register. I exercised discretion to discontinue the investigation of this complaint.

The complaint

  1. Mr G complains the Council refused to register previously developed and contaminated land he owns on to Part 1 of the Brownfield Land Register; as a result, he is concerned it could refuse planning consent for its development should he apply as it classes it as greenfield land which he would then have to appeal at great expense.

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The Ombudsman’s role and powers

  1. 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)
  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 can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I considered all the information Mr G sent and the notes I made of our telephone conversation. I sent a copy of my draft decision to Mr G and the Council. I considered Mr G’s response.

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What I found

  1. Mr G owns an area of land that previously was worked as an open cast mine. He says it has 4 mineshafts and the land is contaminated. Mr G wants to develop it for residential housing. To do this he would need to apply for planning consent. He considers it more likely to get consent if the land was registered on to Part 1 of the Brownfield Land Register (the register).
  2. Councils must maintain and publish a register of previously developed, or brownfield, land. It holds information on sites councils consider are appropriate for residential development if they meet certain criteria. (Regulation 4, Town and Country Planning (Brownfield Land Register) Regulations 2017)
  3. Mr G is unhappy with the Council’s decision not to register his land. The Council refused because it decided the site falls within an exclusion.
  4. Mr G applied to the Council for pre-application advice for a proposal to develop this site. He says the advice said it unlikely the Council would grant consent. I have seen neither a copy of the application or the advice received.

Analysis

  1. The law requires the Ombudsman to consider the injustice caused to a complainant from any fault found. Even if I went on and found fault on this complaint, after making enquiries of the Council, I am not satisfied Mr G suffered significant injustice justifying any further investigation of this complaint. I reach this conclusion for the following reasons:
      1. Mr G is concerned about what might happen should he apply for planning consent. The inference from his complaint is he believes entry on the register would make it more likely he would receive planning consent should he apply for it in the future.
      2. It follows, therefore, that failing to register it, means it is more likely an application for consent would be refused which in turn would mean him spending money appealing the decision to the Planning Inspectorate.
      3. Mr G has not submitted a planning application. This means any concerns about the possible impact this decision would have on it at some point in the future is pure speculation.
      4. Even if the land was registered under Part 1, it does not follow planning consent would automatically be granted, or more likely to be granted, should he apply. It could be refused for any number of unrelated reasons and the Council would need to consider any application on its merits.
      5. Until Mr G sends the Council a planning application, he does not know for certain whether he would, or would not, get consent.
      6. Nor is it certain entry on to Part 1 would mean the land would go on and get registered under Part 2 as well. Part 2 is a subgroup of Part 1 where the Council decides only those sites in Part 1 would be suitable for a grant of ‘permission in principle’ for residential development. This is an alternative way of getting planning consent.

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Final decision

  1. I have discontinued the investigation of Mr G’s complaint against the Council because of the lack of injustice to him.

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Investigator's decision on behalf of the Ombudsman

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