Summary: Mr X complained there was a conflict of interest in the way the Council decided a planning matter. He also complained the Council failed to properly consider the planning application. We found there was no fault by the Council.

The complaint

1. The Council (as a landowner) received a fee from a property owner for rights of access across council land. Mr X complained that there was a conflict of interest because the Council stood to receive a larger fee if its own planning committee granted planning permission for development.
2. Mr X also complained the Council’s decision on the planning matter was flawed. He stated an application was refused by committee in 2017 but the council encouraged the applicant and after several revisions the application was approved by committee in 2020. Mr X considered the Council failed to consider the impact of the application properly and it did not properly consider material planning considerations. Mr X concluded the decision was motivated by the Council making money.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I spoke to Mr X and considered the complaint he made. Mr X provided information which I considered. I also considered the information available from the Council’s online planning files and its response to Mr X’s complaint.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

National Planning Policy Framework (NPPF)

7. Paragraphs 39-46 of the NPPF relate to pre-application engagement. The NPPF broadly encourages discussion between applicants and councils to help ensure the right information is provided and timely decisions can be made.
8. Paragraphs 199-208 relate to the impact of development to heritage assets. Paragraphs 201, 202 and 203 state that where a development proposal will lead to substantial harm to a heritage asset, the development should be refused. Where less than substantial harm is caused, the harm should be weighed against the public benefits of the proposal, including where appropriate, securing its optimum viable use. The NPPF states that a balanced judgement will be required having regard to the scale of any harm and the significance of the heritage asset.

Local Government Association guidance: Probity in Planning

9. This guidance notes that there are often strongly held and opposing views on planning matters. It recognises that these views should be taken into account, but planning decisions should not favour any person, group or organisation. The guidance notes, because planning decisions can be controversial, it is particularly important that the process is open and transparent.

Council Constitution – Scheme of Delegation

10. Most planning decisions are taken by planning officers under delegated powers. However, the Council’s constitution sets out some circumstances when they must be made by the Development Management Committee. For example, if a matter has been called in to committee or if the decision would be outside council policy.
11. Officers may also refer applications to the Development Management Committee if they consider an application should be decided by the Committee.

Background

12. In 2017 a property owner applied to install a lift to access their property. The property is within a conservation area and an Area of Outstanding Natural Beauty (AONB). The current access to the property is down a long steep flight of steps.
13. The property is also positioned alongside public open space, owned by the Council. The proposal was to install a lift tower along with a pedestrian bridge which would be a new access to the property from the public open space alongside it.
14. The Council’s assessment in 2017 noted that several other properties had permission for lift shafts and the principle of a lift was accepted in the area. However, the cumulative effect was a consideration.
15. Officers concluded the design, height and materials proposed for the lift and the proposed bridge would cause harm and would not preserve or enhance the conservation area or AONB. The application was referred to the Development Management Committee and refused.

Mr X’s complaint

16. In late 2018, a revised application was submitted for a lift and access bridge in the same location. The plans were subject to discussion with officers and they were revised in late 2019. In March 2020 the revised proposals were considered by officers and they were put to the Development Management Committee again.
17. The officer’s report noted the proposal was now to install a lift with a steel frame and glass lift car. The report explained the car would run up and down the steel frame without the need for a lift tower or lift shaft. The officer noted that the access bridge would be installed and explained how this would affect the adjacent land. The bridge would be timber and there would be black metal railings and an access gate for safety and security.
18. The officer noted the Council had consulted on the original plans and several revisions while the application was being considered.
19. The case officer’s report considered the design of the proposals and its impact on landscape and heritage. It noted a landscape officer previously objected, but following changes to the bridge design and balustrade the officer now had no objection.
20. The report acknowledged the site was in the conservation area and AONB and noted the heritage officer’s comments. It also noted the existing access was challenging and could be dangerous. The officer balanced the access improvements provided by the proposed work with the visual impact in heritage terms. They concluded, on balance, there were public benefits and the improved access would help secure the ongoing survival of the building. On that basis they considered any harm was less than substantial and they raised no objection.
21. The Council received a significant number of objections and the report listed a summary of these. It set out the case officer’s view on issues raised by the objectors. The case officer also considered neighbour amenity and highways access.
22. The report addressed the Council’s interest in land that formed part of the application. It stated the bridge would cross council land and it would require the removal of a section of wall and hedge. The officer noted the applicant had negotiated with the Council’s assets team about how they would carry out the required work, but this was not a material planning consideration for the planning decision. The report noted the planning officer had not been party to the discussions.
23. The case officer clarified that because the council had interest in some of the land affected by the planning application, the decision would be referred to the planning committee to be decided in the public arena, rather than being decided by officers as a delegated decision.
24. The report referred to relevant national and local planning policy and concluded that the changes made to the proposals overcame the previous objections in terms of heritage, landscape and design. Officers noted the use of traditional materials and they were of the view that the application would not now harm immediate landscape or the wider AONB setting. As a result, they recommended approval.
25. The matter was heard at a committee meeting where both objectors and supporters addressed the members of the committee. The application was approved by the Development Management Committee, subject to conditions.

Mr X’s complaint

26. Mr X first complained in January 2020. He stated there was an obvious conflict of interests because the Council was the adjoining landowner and had granted an easement for access via its land. It was also the body responsible for deciding the planning application. He understood the fee the Council would receive for the access would be greater if the planning permission was granted, and the property increased in value as a result. Mr X considered the Council was motivated by making money from the situation rather than properly considering the planning issues. He also considered the Council should transfer the land to a local Town Council.
27. The Council stated in response that, as a landowner, it had a duty to utilise its assets in the best way it could to derive benefit from them for the community. The deed of easement it agreed was on public record. It stated the Council’s duties to decide planning applications was entirely separate. These were distinctly different functions of the council where no conflict of interest existed. Planning decisions had to be made in accordance with national and local planning policies. The existence of a deed of easement was not a material planning consideration and would not influence the planning decision.
28. The Council noted the applicant had amended their plans several times and it recognised this may be frustrating for those who objected to the proposals. However, the Council had a duty to act reasonably when considering planning applications. It considered that refusing to allow applicants to submit revised proposals could be open to challenge in the event of a planning appeal.
29. In April, after the Council approved the application, Mr X sent further correspondence asking the Council to escalate the complaint. The main issues raised were:
• The Council had made no assessment of the material planning considerations.
• It had not obtained a photograph of what the lift would look like and Committee Members had not asked for more information about the appearance of the lift. He considered this was necessary.
• The historic stone wall and safety issues had not been considered.
• Objections had not been considered, questions had not been answered about why officers did not object and objectors were patronised.
• He also alleged there had been financial deals behind closed doors and he asked if officers were under pressure to support the application and whether the applicant knew the outcome before the meeting was held. He stated there was a serious conflict of interest which meant another independent body should have considered the application.
• Mr X questioned why the Committee meeting was fast-tracked with only seven days’ notice given.
30. Mr X also submitted numerous additional documents which were critical of the way the application was decided. These were detailed and included comments from town councillors and various other groups and individuals. They show that Mr X and others considered the proposed lift and access were harmful to the conservation area and AONB and should have been refused. They did not agree the changes to the proposals addressed the fundamental issues. They also raised concerns that the objections by the public and the Town Council had been ignored and they questioned if the Council intended to sell the public open space adjacent to the site.
31. In May and in July Mr X chased for a response.
32. The Council responded in mid-July. The Council reiterated its position that the easement agreed by its estates team was totally separate from the planning process and did not amount to a conflict of interests. The Council stated it was reasonable and usual practice for someone wishing to gain a right of access over land to pay the landowner for this and the Council had a duty to obtain best value from its assets and land. The Council stated land ownership and access rights issues were not material considerations. The Council expressed regret that the objectors felt let down by the Council and it recognised planning decisions were emotive issues. The Council stated where council land was involved it was necessary to make decisions transparently, which was why the application was decided by Committee.
33. The Council found it had responded to Mr X’s points of complaint in its original response, save for Mr X’s view that photographs should have been obtained to show the appearance of the lift. It apologised for omitting its response to this. It stated it was for the applicant to provide supporting information for their application. In this case indicative plans and drawings were provided by the applicant.
34. I note a further complaint response by the Council in September 2020 covering largely the same issues. Mr X considered the Council had not responded to the views expressed in the additional documents he submitted with his complaint and sought further response from the Council at the end of September 2020.
35. The Council acknowledged the further complaint but did not respond until mid-December 2020. The Council’s response commented on the decision taken by the Council, the case officer’s report and the process followed.
36. Mr X remained dissatisfied with the Council’s response so he brought a complaint to the Ombudsman.

Was there fault by the Council

Conflict of Interests

37. I understand that Mr X is concerned the Council (as a Landowner) will gain a fee for a property owner’s access through its land. This is because the fee is related to whether the property in question increases in value as a result. In part, the increase in value is affected by the outcome of a planning application which will be considered by the Council in its role as the Local Planning Authority. Mr X considers this is a conflict of interests. He put to us that the Council should not be able to determine the application as a result.
38. I recognise the concern Mr X raises. However, councils have a number of different roles. Councils have a duty as a Local Planning Authority to consider planning applications for development. This is the case where a council may be a landowner affected by development or even where another council department or function may be the applicant. For example, planning applications must be made for leisure centres, libraries etc. There is no fault in a council’s planning function deciding planning applications where the Council has some other interest in the matter. However, it is important that when this is the case, the process is open and transparent. I am satisfied the Council’s other interest in this case was well known publicly. The case officers report referenced this and the application was referred to committee because of this issue. The point was also set out at the start of the committee meeting. So, there was no fault in the way the planning application was dealt with in this regard.

How the Decision was made

39. When reaching a view on a planning application, councils must balance a number of competing priorities. They must be able to show they have considered the amenity of local residents, the impact on listed or heritage assets and the application’s adherence with local plans and guidelines generally. However, should they seek to refuse an application, they also need to be satisfied that there are material planning reasons for doing so which would be sustainable at appeal.
40. I note that an application was refused in 2017. The reasons were related to the design, materials, scale and visual impact in the conservation area. However, it is not uncommon for developers to seek to amend a proposed scheme of development to overcome reasons for refusal, and to attempt to make an application acceptable in planning terms. It was not fault for council officers to discuss what was and was not acceptable with the developers. I recognise that Mr X and others opposed the development altogether, and so discussion between the applicant and the council and what is seen as assisting developers, is unwelcome. However, it is not fault for the Council to engage with applicants to give them a view on amendments to proposals. The NPPF broadly supports such contact.
41. The case officer’s report for the application listed the objections received and addressed the key issues. These were the appearance of the proposed lift and its impact in what is a conservation area and AONB. The case officer set out the views of relevant consultees. It is evident that there was strong objection to the application. However, I do not consider there was fault in the way the application was decided. While no photograph of a lift was considered, this is not in itself fault. The decision was supported by plans which show the proposed development.
42. It is not for us to reach a view on what weight should be given to particular issues or to say whether the proposals were or were not harmful to the area. We cannot decide what constitutes sufficient public benefit to outweigh harm. These are subjective planning judgements. So, while I understand those in objection strongly disagree with the decision made, I found no fault in the case officer’s assessment or the Committee decision to approve the application. These were decisions they were entitled to reach.
43. There was some delay in responding to Mr X’s complaint. However, I note the Council apologised for this.

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Final decision

44. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman