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Birmingham City Council (16 011 246)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 30 Mar 2017

The Ombudsman's final decision:

Summary: There is no fault with how the Council has dealt with an application to replace a leisure facility with a residential development.

The complaint

  1. Mr X has complained about how the Council has dealt with a planning application to replace a leisure facility with a large residential development. Mr X believes the decision process was flawed and is unhappy with how the Council has handled his complaint.

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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 have considered all the information from Mr X and the Council, including the information available to the public on the Council’s website and recordings of the planning committee meetings.
  2. A copy of this decision was sent in draft to Mr X and the Council. I have considered the comments received in response.

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What I found

  1. When a Council receives a valid application it must decide whether to refuse or grant planning permission. It must determine the application in accordance with its development plan, unless material considerations indicate otherwise. Permission is refused or granted when the decision notice is published.
  2. The proposal was considered by the Council’s planning committee. The case officer presented the application to the committee and recommended approval. Objectors had the opportunity to speak. Committee members discussed concerns about the application at length and afterwards voted against the proposed development. The recording of the meeting shows that the decision was that the decision should be deferred, and that officers were asked to report back to the committee with reasons for refusal.
  3. The planning application was returned for reconsideration at the committee’s next meeting. At this, the case officer discussed the reasons for refusal given by members and expressed concern that they were not strong enough to warrant refusal and therefore would likely be overturned at appeal, potentially resulting in costs for the Council. The committee members voted again on the application and this time decided to approve the development.
  4. Mr X says the original vote should have been final and the matter should not have been referred back to the committee. He believes the case officer pressured the members into changing their decision and says the Council did not consult the objectors or allow them to speak at the second meeting.
  5. Clearly most members originally had concerns about the development and therefore voted against approving it. As the committee members voted against the case officer’s recommendation it was not fault for the officer to be asked to return to the committee to report on reasons for refusal. The Council must give reasons for refusing applications and these must be robust and based on proper planning considerations if the decision is not to be overturned on appeal. The committee was entitled to defer matters.
  6. Mr X is unhappy the Council did not give any further opportunity for objectors to speak when the application returned to the planning committee and members discussed the reasons for refusal. However, Councils are not required to reopen participation from the public, who had already had the opportunity to speak. I am satisfied objections were raised in the first meeting and detailed in the case officer’s report. The case officer also read out details of the further objections received between the first and second meetings. Therefore I cannot say there has been any fault as the Council considered the objections before deciding the application.
  7. Mr X has argued that different members sat on the two planning committee meetings and some would therefore not have heard the original speakers raise their concerns. However, the case officer’s report detailed the objections and so all members were aware of the issues.
  8. Mr X says the case officer pressured members to change their opinions, but I cannot see any evidence to suggest the case officer acted inappropriately. It is the case officer’s role to present the committee members with details of the application and the material planning considerations. It is also appropriate for the case officer to give their professional judgment on the application and explain that they considered the reasons for refusal weak. There were concerns that if the Council refused the application the applicant could successfully appeal the decision. The Council could then also be responsible for costs. This matter would be relevant to a decision to refuse permission, because costs could only be awarded if an Inspector considered the Council’s actions were unreasonable. It is not fault to warn the committee of the potential consequences of its actions.
  9. Mr X has also raised concerns about the way in which the Council considered his complaint. Mr X says it is inappropriate that the person responding to the complaint consulted the case officers. I do not accept this. As his complaint included the actions of the case officers it is not fault that their comments on their actions were considered.

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Final decision

  1. There is no fault with how the Council dealt with an application to replace a leisure facility with a residential development.

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Investigator's decision on behalf of the Ombudsman

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