Summary: We will not investigate this complaint about the Council’s defence of a planning appeal hearing. We cannot investigate matters which have been considered by Planning Inspectors or the Secretary of State. Also it is reasonable to expect Mr X to complain to the Information Commissioner if he believes the Council is withholding information which should be available to the public.

The complaint

1. Mr X says the Council refused a planning application for a quarry and then failed to defend its decision at the subsequent public inquiry held by the Planning Inspector. He complains the Council withdrew all reasons for refusal based on private legal advice with no transparency or public explanation.
2. Mr X also says the Council prioritised its own procedures and risk avoidance over legal duties under planning law, the Environment Act, Environmental Information Regulations, and national policy. And it did not update its position when new evidence or policy requirements (such as a revised Biodiversity Net Gain baseline, requested by the Planning Inspector) became available.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate complaints about actions which are not the administrative function of a council. (Local Government Act 1974, section 26(1) as amended).
5. We investigate 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 continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council refused a planning application for a quarry on land near Mr X’s home. It gave eight reasons for refusing the application.
9. The applicant appealed to the Planning Inspector against the decision.
10. Following receipt of legal advice, the Council decided the eight reasons for refusing the application were not legally sound. This is a decision the Council is entitled to take.
11. The Secretary of State has called in the appeal and will make the decision whether to allow the appeal or not.
12. I understand Mr X is concerned the Council refuses to make the legal advice it received public. However, the Council has advised the information is legally privileged and it is entitled to keep it private.
13. If Mr X believes the legal advice should be in the public domain, then it is reasonable for him to complain to the Information Commissioner on this point.
14. The appeal hearing was held by a Planning Inspector acting for the Secretary of State and as stated above, the appeal has now been called in by the Secretary of State. We cannot investigate matters which are subject to a decision by a government minister. It is for the Secretary of State to make a decision based on the facts. Whether the actions of the Council or evidence provided by additional witnesses would have affected the decision is not something which we can speculate on.

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Final decision

15. We will not investigate Mr X’s complaint because the law says we cannot consider matters which are subject to decisions by the Planning Inspector or the Secretary of State.
16. It is reasonable to expect Mr X to complain to the Information Commissioner if he believes the Council is withholding information the public is entitled to see.

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Investigator's decision on behalf of the Ombudsman