Summary: We will not investigate this complaint about the Council’s involvement to label the complainant’s land as open green space in a Neighbourhood Plan. We are unlikely to find fault in the Council’s actions. And we cannot achieve the outcome the complainant is seeking.

The complaint

1. The complainant, I shall call Mr X, says the Council failed to ensure the parish council followed the statutory process before designating his land as green space in the Neighbourhood Plan.
2. He wants the status of the land as green space removed.

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The Ombudsman’s role and powers

3. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• it is unlikely we would find fault
• it is unlikely further investigation will lead to a different outcome; and
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A (6), as amended)

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as parish councils. (Local Government Act 1974, sections 25 and 34A, as amended)

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How I considered this complaint

5. I considered:
• information provided by Mr X and the Council
• the Neighbourhood Planning (General) Regulations 2012
• Government Guidance on Neighbourhood planning
• Mr X’s comments on the draft version of this decision

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What I found

6. Neighbourhood planning gives communities a direct role to develop a shared vision for their area and deliver the sustainable development they need. Unlike parish, village or town plans that communities prepare, a neighbourhood plan forms part of the development plan and sits alongside the local plan prepared by the local planning authority (LPA). Decisions on planning applications will be made using both the local plan and the neighbourhood plan, and any other material considerations.
7. Where a community wants to take up the opportunities offered by neighbourhood planning, the legislation allows three types of organisation, known as ‘qualifying bodies’, to lead it:
• a parish or town council
• a neighbourhood forum
• a community organisation

The qualifying body here was the town council.

8. A neighbourhood plan should contain policies for the development and use of land. “If successful at examination and referendum (or where the neighbourhood plan is updated by way of making a material modification to the plan and completes the relevant process), the neighbourhood plan becomes part of the statutory development plan.”
9. Local Planning Authorities (LPAs), in the case the Council, have a duty to guide and aid qualifying bodies preparing neighbourhood plans. This will include sharing information, providing advice, and encouraging best practice.
10. The Council must progress a submitted neighbourhood plan proposal through the formal stages which include:
• publicising the submitted plan proposal
• arranging an independent examination
• deciding if the plan should advance to referendum; and
• making the necessary arrangements to hold the referendum.
11. An independent examiner considers the content of a neighbourhood plan. They are limited to testing whether a draft neighbourhood plan meets the basic conditions, and other matters set out in the relevant legislation. The independent examiner is not testing the soundness of a neighbourhood plan or examining other material considerations.
12. An independent examiner also considers proposals to vary or change neighbourhood plans already in force. They must first decide whether the proposed changes are so significant or great they change the nature of the plan.
13. There are three types of change which can be made to a neighbourhood plan or order. The process depends on the degree of change which the variation involves:
• Minor (non-material) changes to a neighbourhood plan or order are those which would not materially affect the policies in the plan or permission granted by the order. These may include correcting errors, such as a reference to a supporting document, and would not require examination or a referendum.
• Material changes which do not change the nature of the plan or order would require examination but not a referendum. For example:
1. adding a design code that builds on a pre-existing design policy, or
2. adding a site or sites which (subject to the independent examiner’s decision) are not so significant as to change the nature of the plan.
• Material changes which do change the nature of the plan or order would require examination and a referendum. This might, for example, be allocating significant new sites for development.

What happened

14. In 2020, Mr X says he discovered land owned by himself and another party (I shall call Ms Y), had been designated as open green space in the Neighbourhood Plan adopted in 2019. He says the parish council did not consult him and Ms Y.
15. Mr X complained to the Council that, as the LPA, it should have ensured he and Ms Y as landowners, were consulted throughout the planning process.
16. The Council explained to Mr X that its role in Neighbourhood Planning is to take decisions at key stages in the process within time limits that apply. And to provide advice or help to the town council where appropriate.
17. It confirmed the consultation statement it received from the parish council explained how it had consulted the community and the views considered. It set out how the draft plan met legal requirements.
18. The Council says it is satisfied the documents provided by the parish council met the legislative requirements. It does not have to give a formal view on the draft plan until after the independent examination had taken place and the report received.
19. The Council publicised the plan and supporting documents, inviting representations between April and June 2019. It notified statutory consultees and those referred to the town council consultation statement.
20. Following the consultation, the Council appointed an independent neighbourhood planning examiner to examine the draft plan and consider representations made during the consultation process.
21. The examiner recommended some modifications, but decided the proposal including the consultation met all the necessary legal requirements and should proceed to referendum.
22. In October 2019, a referendum was held and more that 90% of votes supported the plan. The plan was then ‘made’.

Assessment

23. Mr X believes the Council is responsible for failing to ensure the parish council followed best practice. Specifically, he says the Council failed to ensure the parish council consulted landowners correctly and failed to ‘equality proof’ the plan.
24. Mr X and Ms Y own a parcel of land. Neither of them lives in the village.
25. The Council says the parish council advised it had written to all landowners in 2018, advising them of the proposed plan. Where more than one landowner was registered with the Land Registry, it says it wrote to the first named owner only.
26. Unfortunately, following a house move, Mr X had not updated his address as landowner with the Land Registry. Therefore, he did not receive the consultation letter from the parish council.
27. The parish council is responsible for the consultation. As previously stated, the Council’s role is to provide advice, encourage best practice and then progress the received plan proposal through four formal stages. The parish council consultation statement outlined the steps taken to consult with interested parties. This includes:
• parish meetings
• questionnaires delivered to all residents
• emails to non-residents with land interests
• publication of questionnaire results
28. The Council confirms it published the draft proposal on its website, and it was available on the parish council website also.
29. Mr X confirms he had contacted the parish council in 2016 and 2018 about the possibility of a local plan. Ms Y also confirmed Mr X had made her aware of this in 2018. He says the parish council therefore had his email address and should have contacted him electronically instead of by post.
30. The authority responsible for ensuring interested parties were consulted on the neighbourhood plan proposal is the parish council. If there are failures in the consultation process as alleged, this would therefore lay with the parish council. As stated in paragraph 4, town councils are not within our jurisdiction.
31. We cannot achieve the outcome Mr X is seeking which is to remove the designation of this land as green space.
32. As stated above, a process exists for changing a neighbourhood plan which is already in force. It is open to Mr X to request the designation of his land as green space us removed.

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Final decision

33. I will not investigate this complaint. If there are failures in the consultation process as alleged, this lays with the parish council as the body responsible for the process. Parish councils are not within our jurisdiction.
34. From the information I have seen we are unlikely to find fault in the Council’s actions and further investigation is unlikely to lead to a different outcome.
35. Finally, we cannot require the Council to change the status of the land which is the outcome Mr X is seeking.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman