Summary: The Council was at fault in not publicising the full proposals for development near Mr X’s home. This fault did not affect the Council’s decision to grant the development planning permission.

The complaint

1. Mr X says the Council failed to properly consider proposals to develop land near his home before granting them planning permission. Mr X’s main concerns about the Council’s decision are:

• the planning application was misleading;
• objections to the application were not published;
• access and parking issues were ignored;
• design issues were not addressed; and
• the planning case officer had a conflict of interest.

2. Mr X also complains about the Council’s handling of his complaint about the application.
3. Mr X says he feels ignored by the Council, which dismissed his carefully researched objections. Mr X says the approved development reduces the value of his home, interferes with his access and makes that access more dangerous. Mr X also says the Council’s response to his complaint was patronising and failed to respond to all the questions he raised.
4. Mr X wants:

• the planning application for the development to be reassessed by a body independent of the Council;
• the Council to improve its procedures so its handling of planning objections is more transparent and fair; and
• the Council to respond to his complaint questions.

Back to top

The Ombudsman’s role and powers

5. 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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1), 26A(1), and 34(3), as amended)
6. 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)

Back to top

How I considered this complaint

7. I have:

• considered Mr X’s complaint and supporting papers;
• talked to Mr X about the complaint;
• considered information on the Council’s website about the planning application, the Council’s pre-application advice service, and its arrangements for deciding planning applications; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

Back to top

What I found

8. The Government’s National Planning Policy Framework (NPPF) and Planning Practice Guidance (PPG) support pre-application engagement to improve efficiency and effectiveness in deciding planning applications. Pre-application advice is not binding on a local planning authority (LPA) if it later receives a formal planning application for development.
9. The Council, which is a LPA, provides a pre-application service. The Council says a planning officer will comment on a pre-application scheme and set out the key issues for consideration and the information needed before making a planning application. The Council’s pre-application guidance notes say that, as far as reasonably practicable, the officer assessing a pre-application enquiry will be the case officer for any following formal planning application. The guidance also makes clear that pre-application advice is not binding on the Council.
10. The planning applicant is responsible for preparing a formal planning application, including any supporting plans and information. When a LPA receives a formal application, it must check for a completed application form, the correct fee, and relevant supporting information including plans and drawings. Planning rules say an applicant must provide a ‘location plan’ showing the application site and its surroundings. A location plan usually shows the site edged red. The application must also provide other information and plans as necessary to describe the proposed development. Such other plans must have an identified scale and show ‘North’. The PPG says LPAs should be satisfied the applicant’s description of the development is accurate. But, LPAs cannot change that description without discussing any new wording with the applicant. The PPG also says checking the accuracy of a description should not delay the LPA’s acceptance of a properly made application.
11. LPAs must keep a register of planning applications and decisions for their area. An LPA may include other information on its planning register. An LPA may make its planning register available for inspection on its website.
12. The NPPF and the PPG say LPAs should decide applications ‘as quickly as possible, and within statutory timescales.’ The statutory timescale for most applications is eight weeks. Within the eight weeks, the LPA must publicise the application. Publicising an application allows people to comment on the development proposals. People normally have 21 days to send their comments to the LPA. Parish Councils may tell their LPA they wish to be consulted about planning applications within their parish. A Parish Council also has 21 days to send its comments on an application to the LPA. (After the 21 days, LPAs may decide the application.) Planning rules do not require a LPA to publish comments it receives about applications on its website but many LPAs do so.
13. LPAs must consider each application on its own merits and decide it in line with their development plan policies, unless material planning considerations indicate otherwise. Material considerations concern the use and development of land in the public interest, for example, overlooking and traffic generation. Private issues, for example, the applicant’s behaviour or peoples’ legal rights as landowners are not material considerations. People’s comments on planning and land use issues linked to development proposals will be material considerations. LPAs must take such comments into account but do not have to agree with those comments. The PPG and the Council’s pre-application guidance both refer to pre-application advice being a material consideration in assessing and deciding any later planning application.
14. A council planning officer will normally visit the application site and write a report assessing the proposed development. The report will refer to relevant planning policies and the planning history of the site; summarise peoples’ comments; and consider the main planning issues for deciding the application. The assessment often involves the planning officer in balancing and weighing the planning issues and judging the merits of the proposed development. The report usually ends with a recommendation to grant or refuse planning permission. Normally, proposals will gain planning permission if the LPA considers they are in line with planning policy and it finds no planning reason(s) of sufficient weight to justify a refusal.
15. LPAs have rules for whether councillors at a council committee or senior officers (with powers delegated by the council) decide a planning application. In practice, senior officers decide most applications. The senior officer will consider the application file and the planning officer’s report. The senior officer (or committee) may disagree with the case officer’s recommendation. This is because, as decision maker, the senior officer/councillors may give different weight to relevant material planning considerations when deciding an application.
16. The Council’s rules delegate most planning decision making to its Lead Specialist Housing and Development officer. The Council’s rules also provide for decisions by other senior officers if the Lead Specialist is absent. Where this happens, the Council’s rules say ‘any formal documents issued are to be signed, using a facsimile signature, in the name of the Lead officer holding the formal delegation. The Council’s arrangements also include the publication of a weekly list of planning applications, which is available to councillors. Councillors may ask for an application to be decided by the relevant committee. An application will be decided by committee if three or more councillors ask for this to happen.
17. If a LPA refuses an application, the applicant has the right to appeal the decision to the Secretary of State. (Inspectors working for the Planning Inspectorate (PINs) and acting for the Secretary of State decide most appeals.) The law says a LPA must state ‘clearly and precisely its full reasons for refusing planning permission.’ This will help an applicant decide whether to appeal the LPA’s decision and or if changes to the proposals may overcome the refusal reasons. The decision notice must also explain how the LPA has worked with the applicant “in a positive and proactive manner” to seek solutions to problems arising from its consideration of the application.
18. A planning permission approves proposed development on planning grounds: it does not affect peoples’ land ownership or other legal property rights. An applicant may need to get other consents before s/he may start a development. The PPG calls these ‘non-planning consents’. The PPG says an applicant may need to secure a non-planning consent alongside or after, and separate from, planning permission to complete and use a development lawfully. Non-planning consents may include, for example, building regulation approval or a neighbour’s consent under a land covenant or easement. Such non-planning consents are not matters for the council as LPA.

What happened

19. The Council received, and refused, a planning application for development near Mr X’s home. On appeal, PINs also refused planning permission for the development.
20. The applicant sought pre-application advice from the Council. A planning officer (‘Officer P’) visited the applicant’s property and provided pre-application comments. Soon afterwards, the applicant made a second planning application to develop the land (‘the Application’). The Application showed changes to the earlier proposals refused planning permission.
21. The Council publicised the Application and, in response, Mr X sent the Council his detailed written objections to the proposed development. Mr X’s objection letter referred to the Council’s and PINs reasons for refusing the first application. These reasons, in summary, concerned the impact of the development on the local area; and its visual impact on nearby property. In brief, Mr X did not consider changes to the proposals overcame the Council’s and PINs reasons for refusing the first application. Mr X also disagreed with PINs findings about the original proposals not impacting on light and privacy to his home and he objected to the Application on these grounds.
22. The local Parish Council, which was aware of, and supported, Mr X’s concerns, also objected to the Application.
23. Officer P was not, at first, given the Application for assessment. The Council says Officer P, having provided pre-application advice, became the case officer on reallocation of work during a “particularly busy period”. Officer P prepared a report on the Application (‘the Report’). The Report described the proposed development; referred to relevant planning policies and the earlier refusal of planning permission; summarised the Parish Council’s objection; and listed Mr X’s grounds of objection. Officer P’s assessment focussed on PINs two reasons for refusing planning permission on the first application. In summary, Officer P said changes to the design and height of the proposed development addressed PINs reasons for refusing the first application.
24. Officer P’s assessment also referred to Mr X’s objections about loss of light and privacy but said PINs had not found the first application impacted on light or privacy. Officer P also said the new proposals would not affect existing parking arrangements, which met the Council’s supplementary planning policy for parking standards. In conclusion, Officer P accepted the new proposals would impact on the area and nearby property but the resulting harm did not justify refusing planning permission. Officer P recommended the Application receive planning permission.
25. A senior officer decided the Application and the Council issued planning permission to the applicant. It was seven weeks since the Council had received the Application.
26. Mr X complained to the Council. Mr X said the Council had not followed the correct planning process in deciding the Application and the Report contained false and misleading information and errors of fact. The main grounds of complaint, which focussed on the Report, were:

• the development in the Application and the Report were different, which inconsistency and lack of transparency had denied him the opportunity to comment on proposals that did affect parking and adversely impacted on his property;
• the Application plans gave no measurements and were unreadable and unclear, which hid the increased footprint of the development and so prevented him from commenting on the full proposals;
• the Report wrongly stated the proposals reduced the development’s bulk when they brought the development closer to his property and did not comply with planning policy or overcome PINs refusal reasons on the first application;
• the Report failed to address PINs comments about the unacceptable design of the first application proposals;
• the Report failed to address his objection about the development interfering with his right to light, which PINs had not accurately dealt with in refusing the first application;
• the Council failed to properly consult with the Parish Council, delayed publishing its objection on its website and the Report did not set out the Parish Council’s objection in full;
• the Council deliberately misled him in giving a date for a decision on the Application but then rushed its decision and granted planning permission a week sooner;
• Officer P had a conflict of interest and should not have provided pre-application advice and decided the Application; and
• the officer allegedly signing the planning decision was on leave and so the Council did not properly issue the planning permission.

27. In response, the Council accepted Mr X’s dissatisfaction with its planning decision. The Council said it had followed the correct planning process, which it outlined. The Council said the difference between the Application’s written form and accompanying plans was “perfectly acceptable”. The Council also referred to its pre-application service, weekly list of planning applications, and arrangements for decisions by officers/councillors. The Council explained it could not consider legal rights in property deeds, which the applicant would need to comply with separate from the planning permission. The Council confirmed there was no conflict of interest and there had been no wrongdoing or malpractice in its decision making. The Council signposted Mr X to the Ombudsman if he remained concerned about its handling of the Application.

Is there fault causing injustice

The Application

28. There is no dispute a difference exists between the written description of the Application proposals and the development shown on the accompanying plans. The issue for me is whether the Council acted with fault when not questioning the applicant’s written description and finding the difference ‘perfectly acceptable’.
29. Here, planning permission for proposals to develop the site had recently been refused. Mr X’s property was among those most likely to be affected by any development on the Application site. The Council knew Mr X had objections about such development, including its impact on his property and access, parking and highway safety. The development shown on the Application plans but not included in the written description was relevant to those objections. On balance, given the circumstances, the Council did fall below acceptable administrative standards in not making the full extent of the proposals clear and before publicising the Application. I find fault here.
30. I have taken account of Mr X’s comments about the difficulties in identifying the full proposals using plans on a website that do not include measurements. I recognise what Mr X says. However, the plans comply with the relevant rules and guidance. The Council was not therefore at fault in accepting the plans or publicising them on its website (see paragraph 10).
31. Mr X sent objections to the Council, including about the impact of the Application development on his property and on parking and highway safety issues. I have no reason to doubt Mr X did not appreciate the full extent of the Application proposals. If Mr X had been aware, he would probably have added to the objections he sent the Council. I therefore recognise what Mr X says about losing the opportunity to comment on the full development proposals.

The Report

32. Neither the Council nor PINs found parking and highway safety issues provided grounds for refusing planning permission on the first application. The Report, which refers to the full Application proposals, shows the Council took account of the objections Mr X did make, including about highway issues and parking. Officer P found no highway or parking grounds to refuse planning permission. I find no evidence to suggest the Council would have reached a different planning view on highway and parking matters if it had received added objections from Mr X.
33. Mr X raised several concerns about the contents of, and omissions from, the Report. The Report focuses on whether the Application proposals address PINs refusal reasons on the earlier application. I recognise how such an approach may appear dismissive of the objections Mr X made on other grounds. I also recognise that Mr X does not agree with all PINs findings on the earlier application. And yet, the Council could properly take account of PINs decision and approach its assessment of the Application focussing on PINs reasons for refusing planning permission for the earlier proposal. I find no fault here by the Council.
34. Mr X also points to errors in the Report. For example, Mr X says it wrongly states the proposals reduce the development’s bulk; comply with planning policy; and overcome PINs refusal reasons. Mr X has a right to hold a different view to the Council on these issues. And yet, the Application proposals did change the development refused planning permission by PINs. The Council acted correctly in considering whether the changes overcame PINs refusal reasons. The evidence also shows the Council identified the full development proposals in assessing the Application. While the Council’s assessment of the changes differs from Mr X’s, the Council’s views have a planning basis and are sustainable on planning grounds. Mr X and the Council hold differing views about the merits of the Application proposals. I find no fault here.
35. I have also considered what Mr X says about the Parish Council’s objection. The Council’s website shows it does place representations about planning applications on its website. It is unfortunate the Council did not immediately upload the Parish Council’s objection to the Application on its website. And yet, the Report refers to the Parish Council’s representation and makes clear it was objecting to the Application.
36. I accept the Report does not set out the Parish Council’s full representation. And yet, such reports are but part of the information available to those deciding a planning application. A report will draw on all the available and relevant information, summarise it, and show how the case officer has balanced and weighed the proposals against planning policy and other material planning considerations. Usual practice is to summarise representations in a case officer’s report: it is rare that a report includes a representation in full. Overall, I find no fault causing injustice to Mr X in the Council’s handling of the Parish Council’s representation on the Application.

Process issues

37. Mr X says Officer P had a conflict of interest and should not have assessed the Application. The Council’s published pre-application guidance shows it aims for the same officer to assess any formal application that may follow pre-application advice (see paragraph 9). I find no fault in Officer P providing both pre-application advice and assessing the Application.
38. Mr X says the Council deliberately misled him about the decision date for the Application during a phone call to Officer P. I cannot know what each person said as I have no recording of this telephone call. Mr X says the date the Council gave him for the decision was 10 days later (‘the Decision Date’). Mr X has produced a ‘screen shot’ from the Council’s website that suggests the Report was complete on the day of the phone call. The Council issued planning permission on the Application three days later.
39. The Decision Date was the ‘eight weeks’ date by which the Council should make a decision on the Application (see paragraph 12). A Council planning officer would be aware of and could provide the Decision Date as the ‘statutory’ due date for the decision. Once Officer P completed the Report and passed the case for decision, ‘the’ decision date would be in the hands of the decision maker. A planning case officer, including Officer P, could not have confirmed to Mr X or any other person when the decision would be made. In responding to the draft of this statement, the Council explained that Officer P was allocated the case the day Mr X called but after that call took place. I find a misunderstanding arose during the Mr X’s telephone conversation with Officer P about the decision ‘due’ and ‘actual’ date(s).
40. I do not find the Council rushed its decision in taking seven weeks and or because its issued its decision three days after Officer P completed the Report (see paragraph 12). Overall, I find no fault by the Council arising from the telephone call and its issuing planning permission on the Application before the Decision Date.
41. Mr X also challenges the Application decision as the officer shown as signing the decision notice was then absent from the Council. I do not share Mr X’s concerns about the signature on the planning permission. The Council’s rules allow senior officers to make decisions in the Lead Specialist’s name (see paragraph 16). I find no fault here.

Summary: The Application

42. The Council was at fault in not, when publicising the Application, describing the full development proposals (see paragraph 29). I have also found that Mr X would probably have added to his representations if he had appreciated the full extent of the proposals (see paragraph 31). And yet, the evidence shows the Council was both aware of and considered the full proposals in deciding the Application. I therefore do not find that Mr X’s lost opportunity to comment on the full proposals affected the Council’s planning decision. Mr X would be in the same position (of the Application receiving planning permission) if the Council fault I have identified had not taken place. So, the significant injustice Mr X no doubt experiences because the Application has planning permission, does not arise from the Council’s fault.

Complaints handling

43. Mr X is clearly dissatisfied with the Council’s response to his complaint. I recognise the importance to Mr X of his home and its surroundings. Mr X clearly gave much thought and took time to fully set out his concerns and questions about the Council’s handling of the Application in making his complaint. I accept the Council’s response did not address each question and point raised by Mr X. And yet, that a council may have done more and or acted differently does not necessarily mean there is fault in how it did respond. Here, I find the Council’s response adequately addresses the key issues arising from Mr X’s complaint. I find no fault here.

Back to top

Final decision

44. I completed my investigation finding that while there was fault by the Council it was not the cause of the injustice Mr X complains about.

Back to top

Investigator's decision on behalf of the Ombudsman