Spelthorne Borough Council (19 011 449)

Category : Planning > Other

Decision : Not upheld

Decision date : 28 Oct 2020

The Ombudsman's final decision:

Summary: Mr X, on behalf of a number of residents in the area, complains about the Council’s decision to grant planning permission for a development as well as the level of public consultation. The Ombudsman does not find the Council at fault.

The complaint

  1. The complainant, who I shall refer to here as Mr X, complains, on behalf of a number of residents in the area, that the Council:
      1. withheld important information, and provided misleading and inaccurate information;
      2. failed to sufficiently consult the public, which violated its Statement of Community Involvement; and
      3. classed the development as sui generis (meaning the building has a use of its own kind), without explaining the reasons why.
  2. Mr X says this meant that local residents did not have a proper opportunity to contest the proposed development. He is concerned about the impact the development will have on the residents in the area and amenities.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

  1. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. I also sent a draft decision to both parties for comment. I considered all their comments before making a final decision.
  2. I have considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

Planning applications

  1. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
  2. Councils must consider applications on their planning merits and make decisions in line with relevant policies in their development plans, unless material planning considerations suggest otherwise. Material considerations concern the use and development of land in the public interest, and not private matters such as the applicant’s behaviour or house prices. Material considerations include issues such as overlooking and traffic generation.
  3. Planning policies and material planning considerations may pull in different directions, for example, supporting new housing and protecting existing residential amenities. While councils must take account of relevant policies and material planning issues, they may give competing considerations different weight. In practice, this means councils may grant planning permission for development that does not comply with all relevant planning policies.
  4. Peoples’ planning and land use comments on development will be material planning considerations. Councils must take such comments into account in deciding applications, but they do not have to agree with those comments.

Publicity for planning applications

  1. Councils are required to give publicity to planning applications.  The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the requirement was also for:
  • A site notice and publication in a local newspaper, or neighbour notification and publication in a local newspaper (for Major developments, e.g. 10 or more dwellings).

Pre-application public consultation

  1. Government Guidance on pre-application discussions states that engagement with the community is encouraged where it will add value to the process. Such pre-application engagement is not mandatory, except in cases where the planning application concerns certain wind turbine developments.

Sui generis use

  1. The Town and Country Planning (Use Classes) Order 1987 (as amended) places all developments in England into various categories known as ‘Use Classes’. For example, shops and restaurants are in Class A, and houses and residential care homes are in Class C.
  2. Certain uses are specifically defined and excluded from classification by legislation. These uses are considered in a class of their own within the sui generis class. Sui generis means ‘of itself’. Hostels providing no significant element of care are specifically classed as sui generis.
  3. The building’s classification will apply to the whole of the building.

What happened

  1. In 2019 the Council received a planning application for a development in the area where Mr X and the residents he represents live. The Council was the developer in the application. The Council granted planning permission for the development.
  2. Before considering the planning application, the Council met with Mr X and other residents to discuss the proposed development. During the meeting, the Council explained why the proposed development was needed. It also provided reasons why the specific site had been chosen and responded to concerns and questions raised by residents, including questions about funding. A party involved in the proposed development gave a presentation on its involvement and responded to questions raised by residents.
  3. A Council planning officer prepared a report on the application and recommended its approval. The report sets out why the development is considered sui generis and provides reasons why it does not fall within the residential class. It states any future change of use would require planning permission.
  4. The report noted the number of objections received and listed the basis of the objections, which included inadequate consultation with the public and time given for this. The planning officer’s report states the local planning authority publicised the application with a planning site notice and a statutory notice in a local newspaper. Although there were no direct neighbours to the proposed development, notification letters were sent to residents living opposite the site. The application was made available on the Council’s website and at its offices.
  5. The planning officer’s report identifies issues raised that are not material planning considerations in determining the application. These include questions surrounding whether other sites may be preferable to the one proposed, how other sites are being developed, and the cost and value for money of running the proposed development. The report clarifies the local planning authority must make a decision whether or not to recommend approval based solely on the content of the planning application and the site identified in this.
  6. The report was considered by the Council’s planning committee during a meeting that approved the application. The minutes from the meeting show that, in accordance with public speaking procedures, Mr X was given the opportunity to speak against the proposal on behalf of a number of residents and his comments were listed.
  7. Mr X said in his complaint to the Council that it failed to act in the best interest of residents during the planning application process. He said this is because the Council failed to sufficiently consult the public before the application was submitted, which violated its Statement of Community Involvement. Mr X said the Council withheld important information about the planning application from residents, and provided misleading and inaccurate information that was relied on when reaching its decision. He also said the Council failed to provide reasons why the development was classed as sui generis instead of residential.
  8. The Council’s stage one and stage two letters responded to Mr X’s complaint as follows:
  • The Council explained there was no legal requirement for a developer to consult the public before a planning application is made. The Council referred to its Statement of Community Involvement, which stated consultation with the public was only encouraged for major applications at the pre-application stage, but was not a requirement. For comparison, it provided examples where pre-application consultation had taken place and confirmed this was linked to these other developments being much larger in size.
  • The Council said it had considered certain documents supporting the application that Mr X said were misleading. It made a number of changes to these documents, but explained why it did not uphold Mr X’s complaint that the original documents were misleading.
  • It did not uphold Mr X’s complaint it had withheld important information from residents about the consideration of alternative sites. The Council explained the proposed site was more suitable than other potential sites it considered before making the planning application. It said this information is contained in the planning application, which was available to the public to view.
  • The Council acknowledged its reasons for the proposed development may not align with the wishes of local residents, but that did not mean any Council policy had not been followed.
  • It had found no evidence to support Mr X’s view that the work of external consultants was below standard.
  1. The Council provided the Ombudsman with further information on how it made its decision to class the proposed development as sui generis. It explained it had referred to Planning Portal guidance on this as well as relevant legislation, case law and decisions made by other councils on developments intended for similar uses.

Analysis

Information provided by the Council

  1. The Council’s stage one and stage two responses show it properly considered Mr X’s complaint about misleading information and withholding information about the consideration of alternative sites.
  2. The Council took steps to make minor changes to a few documents and explained why it did not consider the originals documents misleading. The Council also provided Mr X with reasons why the proposed site was considered more suitable than other sites. It has also explained it is under no obligation to justify its decision. There is no evidence of fault in the Council’s handling of these matters. It has provided cogent responses, which are supported by the evidence.

Public consultation and the Council’s Statement of Community Involvement

  1. I understand that Mr X and the residents he represents are unhappy with the level of public consultation.
  2. The Council has explained that there is no statutory requirement to consult the public before submitting a planning application. Its Statement of Community Involvement confirms that such pre-application consultation is only encouraged, but is not obligatory. This is in line with the Government Guidance outlined in paragraph 11 above. I have found no evidence of fault in the Council’s actions here.
  3. The planning officer’s report shows that, after the planning application was submitted, certain steps were taken to publicise it. More specifically, the local planning authority publicised the application with a planning site notice, a statutory notice in a local newspaper and notification letters were sent to residents living opposite the site. It was also published on the Council’s website. These methods of publicising the application comply with the legal requirements explained in paragraph ten above.
  4. The planning committee minutes show Mr X had the chance to speak against the proposal. His objections were listed in the minutes. This is in line with paragraph nine above. Councils must take such comments into account in deciding applications, but they do not have to agree them.
  5. The evidence also shows the Council, as the developer, met with Mr X and other local residents before the application was decided. The residents were given the opportunity to raise questions during this meeting. A detailed presentation on the proposed development was also given to the residents to help address their concerns. This is an example of good practice and I do not find fault in the way the Council consulted with residents.

Sui generis classification of the development

  1. I understand Mr X disagrees with the classification of the development as sui generis. However, in line with paragraph three above, the Ombudsman cannot question the decision of a Council if it was properly taken.
  2. In this case, the Council’s planning officer was entitled to come to their own conclusion about the use class of the development. The planning officer’s report gives reasons why the development is considered sui generis and how this complies with the law (outlined in paragraphs 12 to 14 above). The officer’s report also confirms any future change of use would require planning permission. The Council has also provided further information to the Ombudsman on how it reached the decision to class the use as sui generis. I do not find fault with the way it made its decision.

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Final decision

  1. I have completed my investigation. I have found no fault in the way the Council considered the planning application and consulted local residents on this.

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Investigator's decision on behalf of the Ombudsman

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