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Hambleton District Council (20 013 172)

Category : Planning > Other

Decision : Not upheld

Decision date : 06 Sep 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to approve a planning application for development on land on the edge of his village. We did not investigate his complaints further because Mr X was not caused a significant injustice or an injustice for which we would recommend a remedy.

The complaint

  1. Mr X complained about the Council’s decision to approve a planning application to allow development on the edge of his village.
  2. Mr X said that he has been put to a great deal of time and trouble pursuing his complaint about the Council’s decision, incurring costs for legal advice. However, Mr X said he is not seeking compensation for his legal costs. Mr X said the Council’s decision has set a precedent which will allow similar development in the future, in and around the village.
  3. Mr X would like the Council to discipline a senior officer who he believes has abused his position. Mr X said the officer should undergo training on his role and responsibilities in assisting and guiding planning committee members in their duties.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • any fault has not caused injustice to the person who complained, or
  • any injustice is not significant enough to justify our involvement, or
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

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

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How I considered this complaint

  1. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • Access to the highway;
    • Protection of ecological and heritage assets; and
    • The impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    • Views from a property;
    • The impact of development on property value; and
    • Private rights and interests in land.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  5. Although local guidance can set different limits, typically councils allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
  6. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
  7. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications. Even if a proposed development is outside a Conservation Area, councils may take account of the impact it will have upon the Conservation Area itself.
  8. Most councils require the planning case officer to prepare a report to guide the decision maker. The courts have made it clear that planning case officer reports:
    • do not need to include every possible planning consideration, but just the principle controversial issues;
    • do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
    • should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key material issues.
  9. Council committees are required to publish minutes of meetings and details of decisions and background papers relied upon. When a planning committee followed planning case officer advice, the reasoning set out in the case officer’s report may often be used as evidence to demonstrate the reasons for its decision.
  10. If a committee makes a decision that goes against planning officer advice, a fuller summary of reasons might be necessary so any individual who might want to challenge the lawfulness of the decision, can understand why and how it was made.

What happened

  1. Mr X lives in a village. The Council received a planning application to build several houses on land on the other side of the village to where Mr X lives.
  2. The Council’s planning case officer considered it and wrote a report. It recommended the planning application should be determined by the Council’s planning committee, because it was considered a departure from the local plan.
  3. The case officer wrote a report to advise the committee, which included:
    • A description of the proposal and site;
    • A summary of planning history considered relevant;
    • A summary of comments from neighbours and other consultees;
    • A summary of planning policy and guidance considered relevant;
    • An appraisal of the main planning considerations, including the principle of development, housing size, type and tenure, flood risk and drainage, the impact on amenity and on highway safety; and
    • The officer’s recommendation to refuse the application because of its impact on the openness of the countryside and the conservation area.
  4. The Council approved the application, despite the planning officer’s recommendation. The minutes of the meeting show:
    • The type of planning application and planning reference number;
    • A brief description of the proposal and location;
    • The committee’s decision was contrary to the recommendation;
    • A brief explanation of the reasons, which were that the committee did not consider the development would result in an unacceptable loss of openness or cause a harmful impact on the conservation area.
  5. Mr X sought information from the Council and complained about its decision but was unhappy with the response because it did not address the details he had raised and did not leave him enough time to seek judicial review of the decision in the High Court. Mr X said he would have challenged the Council’s decision because, amongst other things, the Council’s decision reasons were inadequate. Mr X said his legal advice was that he had a good case but the time limit for judicial review had expired. Mr X believes the Council delayed responding him deliberately to avoid legal challenge in the courts.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
  2. Before we begin or continue our investigations, we consider two, linked questions, which are:
    • Is it likely there was fault?
    • Is it likely any fault caused a significant injustice?
  3. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
    • not to investigate; or
    • to end an investigation we have already started.
  4. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
  5. I should investigate Mr X’s complaint about the Council’s planning decision further. Our remedies for fault in planning decisions focus on the injustice caused by the impact development has on an individual complainant’s amenities, and because Mr X lives some distance away from the site, he will not be directly affected by development on it. Even if I was to find fault in the way the Council made its decision, it is unlikely we would be able to recommend a meaningful remedy.
  6. Mr X has also complained the Council’s complaint response was inadequate.
  7. We do not normally investigate complaints that are just about complaint procedures or responses to enquiries, and there is no good reason to do so in this case. There are several reasons for this, but the main reasons are as follows.
  8. Our focus is usually on the issues and decisions that caused the original complaint. We are a stage beyond the Council’s own complaints processes and can remedy any injustice it has failed to address when it had the chance to do so.
  9. Generally, we do not consider it a good use of public resources to investigate complaints that are just about complaint procedures, if we are unable to investigate or remedy the substantive issues that lie at the heart or core of the complaint. This is because, investigation into side issues, like complaints about complaints procedures, is unlikely to result in a remedy or a meaningful outcome.
  10. In this case, Mr X has said that the delay resulted in his legal action having little prospect for success. Mr X believes the delay was deliberate and was aimed at disrupting his legal action. He has provided no evidence to support this view.
  11. I cannot speculate what the outcome of Mr X’s legal action might have been. Even if I found fault in delay, I would not be able to link it directly to an injustice to Mr X.
  12. We do not expect council planning authorities to enter into long debates or provide detailed explanations for third parties, either before or after a planning decision is made. Mr X is unhappy with the Council’s decision, but he is not a party to it; the parties are the Council and the applicant. In relation to its planning decisions, the Council is not obliged to do more than consider any comments Mr X might make, in so far as they relate to material planning considerations and inform him where he can find details of its decision and the background papers it relied upon.

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Final decision

  1. I ended my investigation because Mr X was not caused a significant injustice or an injustice that I could remedy.

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Investigator's decision on behalf of the Ombudsman

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