Wirral Metropolitan Borough Council (18 015 709)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 03 Jun 2019

The Ombudsman's final decision:

Summary: The Council did not follow its own publicity policy when consulting on a planning application, which is fault. This fault did not cause injustice. The Council’s handling of data protection issues is better considered by the Information Commissioner’s Office, but there is no evidence of injustice. There was no fault in the remaining elements of this complaint. The Ombudsman has therefore completed his investigation.

The complaint

  1. I will refer to the complainant as Mr N.
  2. Mr N complains about the Council’s handling of a planning application for a large housing development on a former school playing field near his home.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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 has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I reviewed information available on the Council’s website, the case officer’s report, the appeal determination for the previous application, the Council’s policies on notification and disclosure, and Mr N’s correspondence with the Council.
  2. I also sent a draft copy of this decision to both parties for their comments.

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What I found

  1. Mr N’s garden abuts an area of land. The land used to be the playing field for a local school, which closed down some years ago, but has since fallen into disuse and become overgrown.
  2. A number of planning applications have been made to develop the site over the last 30 years, but all were refused by the Council.
  3. In 2016, the Council refused an application for outline permission for residential development. The applicant appealed to the Planning Inspectorate, which allowed the appeal.
  4. In April 2018, the Council received an application to construct 28 houses on the site. After the consultation period, the case officer submitted her report recommending approval of the application. Due to the number of objections which had been received, the decision was referred to the Council’s planning committee.
  5. Prior to the planning committee’s meeting, in September, Mr N submitted a petition of local residents outlining their concerns about the application.
  6. On 25 September, Mr N made a complaint to the Council. He made eight points of complaint:
  • inadequate notification of the application;
  • the Council’s failure to disclose to him its pre-application advice;
  • difficulty obtaining access to consultee responses;
  • failure to adhere to a particular element of the local Unitary Development Plan (UDP);
  • failure to provide a copy of the petition to each member of the planning committee;
  • inaccurate information about the allowed appeal being given to the committee;
  • the case officer inaccurately stating the land had been marketed for sale;
  • and failure to re-consult with the public in relation to an amendment about affordable housing.
  1. The Council responded on 19 October. It said:
  • its notification of the application was in accordance with the Council’s statutory obligations;
  • it would not generally disclose pre-application advice to third parties for confidentiality reasons, and in any case it had not formally responded to the advice request before the application was submitted;
  • the Council was required to redact public and consultee responses before disclosure because of the EU General Data Protection Regulations (GDPR), and Mr N had been provided the information he requested;
  • the case officer had considered the UDP policy, but it was for the Council to decide how much weight to attach to it;
  • Mr N had submitted his petition after the planning committee’s agenda had already been set, but the petition did not contain any objections which the committee was not already aware of;
  • the information about the allowed appeal was not inaccurate;
  • the case officer had not said the land had been marketed and Mr N had taken a comment in her report out of context;
  • the location of the affordable housing had not yet been decided, but it was subject to a section 106 agreement which would not be opened for public consultation.
  1. Mr N submitted a stage 2 complaint. He reiterated his previous complaint, and added that he felt the Council had not given any consideration to residents’ objections or their petition.
  2. The Council replied on 6 December, but said it could not add anything to its previous response, which it felt addressed Mr N’s concerns fully.
  3. On 10 January 2019, the Council approved the application with a number of conditions.
  4. On 16 January, Mr N referred his complaint to the Ombudsman.

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Legislative background

  1. A local planning authority (LPA) must give publicity to planning applications and consider any representations received which relate to material planning considerations.
  2. Material considerations relate to the use and development of land in the public interest and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
  3. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission unless is it founded on valid material planning reasons. General planning policies may pull in different directions – for example, by promoting residential development, but also protecting residential amenities. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.

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Analysis

  1. Mr N raised eight points of complaint with the Council, which also form the basis of his complaint to the Ombudsman. For the sake of clarity and completeness, I will address each point in turn.

Site notice

  1. In his complaint to the Council, Mr N said it had initially failed to erect a site notice, notifying the public of the application. He said a councillor had emailed a manager in the planning department on 19 May, requesting a site notice be erected, but had no response. The councillor then emailed a different officer on 11 June, and “some time after” 14 June a notice was erected. However, its position meant it was not visible to passers-by, until moved by a local resident.
  2. The Council’s first complaint response was written by the manager whom the first councillor had emailed on 19 May. He said had not ignored the councillor, but had duly asked the case officer to erect a notice.
  3. The manager also said the Council was not required to erect a site notice, as it could notify the public of an application with letters to neighbours, publication of a press notice or publication on its website instead. However, in this case, it had actually undertaken all four methods of notification. Finally, he explained the Council was not obliged to replace a notice which had been moved or destroyed by a third party, but would seek to do so if notified in reasonable time.
  4. Mr N has provided me with a copy of the Council’s planning publicity policy, as it was at the time of the application. This says that, for a development which is ‘major’ (ten houses or more), or a departure from the local development plan, it will publicise the application by placing a notice in a local newspaper and also by erecting a site notice. It also says it will do this no later than seven days after the receipt of a valid application.
  5. I note, from the Council’s website, it has now published a new policy. This says, for a major development, it will now use either a site notice or a neighbour notification letters, as well as a newspaper notice. However, the policy relating to a departure from the local plan remains the same.
  6. The application in question was both a major development (according to the Council’s definition), and, it appears, a departure from the local plan. Under the policy which existed at the time, both these factors should have triggered the placement of a site notice. And even under the new policy, a site notice was still required because of the ‘departure’ factor.
  7. The Council’s complaint response, where it says a site notice was optional, is therefore incorrect.
  8. It also appears the Council’s complaint response fails to grasp the point Mr N was making about the movement of the site notice. Mr N said the initial placement of the notice meant it was not visible to passers-by. As I understand it, he said a resident moved to the notice to make it more visible. However, the Council appears to have believed he was saying the notice had been removed entirely and was complaining it had not been replaced.
  9. The Council’s previous policy says site notices “will be posted at points of public access (normally on lampposts and are bright yellow in colour.” Mr N’s complaint is that the notice was white, not yellow, and had been put on a gate at the entrance to the land, which is set back some way from the highway.
  10. I am critical of the Council’s failure to respond properly to this element of Mr N’s complaint, although I do not consider this to be a significant point in isolation. And on the evidence, I cannot say myself exactly where the notice was placed and what colour it was.
  11. In either case, it is fault the Council did not initially display a site notice, as this contravenes its own policy.
  12. However, I cannot see what injustice this could be said to have caused Mr N. Site notices are intended to notify potentially interested parties that an application has been received, explain how to comment on the application, and give a deadline for this.
  13. But Mr N was fully aware of the application. There is no suggestion he was unable to raise an objection, and he also organised a petition of local residents which he says received a large number of signatures.
  14. So there is no reason to think the initial lack of a site notice (nor its placement and colour, if these were flawed) meant any potential objections went unheard.
  15. I find fault, but which did not cause injustice, in this element of Mr N’s complaint.

Failure to disclose pre-application advice

  1. Mr N complains the Council has not disclosed to him the pre-application advice it gave to the developer. The Council says it was unable to do so for confidentiality reasons, particularly related to commercial sensitivity.
  2. Pre-application advice can be given upon request by potential developers, to allow them to make informed choices before submitting an application. However, it does not bind the planning authority to approve a subsequent application.
  3. Mr N says the developer was content to disclose financial information about the development to him in person when he asked. He therefore believes the Council was wrong to rely on commercial sensitivity as a reason not to disclose its advice.
  4. The Local Government Association (LGA) has published guidance on best practice for pre-application advice. It says, in summary, there is a presumption towards disclosure of advice, and that it should generally be published when a substantive application is made. However, it also says local planning authorities should make their own policy on disclosure clear.
  5. The Council’s website explains that it will generally not disclose pre-application advice to third parties.
  6. The LGA’s guidance is not statutory and so it is not, in itself, fault if the Council chooses not to follow it. And I can see the Council has applied its own policy here, which is to not disclose it to Mr N.
  7. I cannot conclude on the evidence available whether the developer suggested it did not wish the advice to be published for reasons of commercial sensitivity. I would not say the developer’s own disclosure to Mr N necessarily means the Council should have done so itself.
  8. But, ultimately, whatever the facts here, I am unable to see what injustice this could have caused Mr N. He does not suggest, nor would I accept, that disclosure was necessary for him to submit an objection or the petition. I also note the Council says it did not actually give any formal advice before receiving the application anyway.
  9. Where complaints relate to questions of data protection and freedom of information, the Ombudsman generally considers it better for people to approach the Information Commissioner’s Office (ICO). The ICO is an expert body with a specific remit to investigate such matters.
  10. If Mr N wishes to pursue this element of his complaint, he may wish to approach the ICO.
  11. However, I have discontinued my investigation of this element of Mr N’s complaint, as there is no evidence of injustice.

Disclosure of consultee responses

  1. Mr N says he contacted the Council on 16 July, to arrange to inspect the application file. He says he requested access to the copies of public objections and to the responses from statutory consultees, such as Sports England.
  2. On 19 July, Mr N says he attended the Council offices, to find a note on the file saying the consultee responses were available on the Council website. Mr N pointed out this was not the case, and the Council responded they were subject to data protection under GDPR and could not be disclosed until redacted.
  3. Mr N says he then emailed the case officer on 24 July to request access to the consultee responses. He received a reply from another officer asking him to clarify what he wanted to see. Mr N says he felt his email had not been read properly and that he was being treated “with contempt”, and accuses the Council of attempting to keep the information hidden from the public. He confirms the reports were subsequently made available to him.
  4. The Council’s response confirms it has a duty to make public and consultee responses available for viewing, but is required to redact personal information because of the GPDR. It refuted Mr N’s claim he was being treated with contempt by being asked to clarify his request, and pointed out the information had subsequently been disclosed to him.
  5. Mr N has provided a copy of his email exchange with the officer on 24 July. His first email to the case officer clearly lists the documents he wished to see, and so I agree it is difficult to understand why this needed clarification. This said, I do not consider simply being asked to clarify a request is reason to consider he was being treated with contempt.
  6. On 30 July, the Council emailed Mr N again to say he could now make an appointment to view the consultee responses.
  7. I reiterate my view of the previous element of Mr N’s complaint here. The crux of this is whether the Council was overzealous in its protection of data, but there is no dispute the information was eventually made available to Mr N before he submitted the petition.
  8. So, even if there was fault in how the Council handled this, there is no evidence of an injustice beyond a short delay in Mr N being able to access the information, which is not significant. And the question of fault, itself, is better addressed by the ICO.
  9. I have discontinued my investigation of this element of Mr N’s complaint, as there is no evidence of injustice.

Failure to apply UDP policy

  1. Mr N says the case officer did not consider policy HS4 of the Unitary Development Plan.
  2. Policy HS4 is described in the case officer’s report. She wrote that proposed residential development “should be of a scale which relates well to surrounding property, in particular with regard to existing densities”.
  3. The case officer went on to explain there should be a minimum separation distance of 21 metres between properties with directly-facing habitable rooms (for example, bedrooms), and 14 metres between properties where a habitable room in one faced by a blank wall of another. The case officer said the developer’s proposal accorded with this, and that the “design, scale and layout … would be acceptable in terms of the criteria set out in UDP Policy HS4”.
  4. Mr N’s complaint is that the existing buildings in the area are at a lower density than required by the minimum separation distance. Under HS4, the new development should correspond with this, and not simply satisfy the general minimum requirements.
  5. However, local planning policies frequently pull in different directions and can be contradictory. Local planning authorities can depart from their policies where they consider it justifiable.
  6. The Ombudsman’s role is to review authorities’ adherence to procedure when making decisions. If the authority has followed the correct procedure, taken account of all relevant information, and given clear and cogent reasons for its decision, the Ombudsman cannot generally criticise it. It is not for the Ombudsman to make decisions on authorities’ behalf, or substitute the judgement of their officers with his own, and he cannot uphold a complaint simply because someone disagrees with the authority’s decision.
  7. In this instance, I am satisfied the case officer had due regard for policy HS4, and explained she considered the proposal acceptable under the policy. This is a decision the Council was entitled to make, and I have no grounds to criticise the way it was made.
  8. I find no fault in this element of Mr N’s complaint.

Failure to share petition with planning committee

  1. Mr N complains the case officer did not share the petition with each member of the planning committee, as he had requested. He says the Council’s policy allows a submission up to three working days before the committee is due to sit.
  2. The Council says the last date for public comments was 16 July. The application was placed on the planning committee’s agenda on 16 August, for its meeting on 13 September. The agenda was published on 5 September, but Mr N’s petition was not received until 7 September.
  3. I have reviewed the Council’s policy on the submission of petitions. It says:

The petition should be submitted on or before the earliest decision date to ensure it is taken into consideration. However, petitions received before noon, 3 working days before the date of the Planning Committee meeting may be accepted subject to the Chair of the Planning Committee’s discretion. [emphasis mine]

  1. The policy is clear the Council expects petitions to be submitted during the normal consultation period. Although it has discretion to accept late submissions, the Council is not bound by this. I cannot therefore find fault it did not.
  2. In any case, I am again unable to see any injustice arising from this. I have reviewed Mr N’s petition myself, and compared the issues it lists it with the summary of the objections listed in the case officer’s report. I cannot see any material difference between these – the substantive points listed in the petition are all covered in the report. The report also explains why the case officer considers the application acceptable despite the objections.
  3. Mr N also confirms himself that reference was made to receipt of the petition during the planning committee meeting. So it is clear the committee members were aware of both the existence of the petition, and the substantive points it made.
  4. The only exception to this is the petitioners’ complaints about the developer’s conduct, which is not a material planning consideration and could not form part of the committee’s deliberations anyway.
  5. I appreciate Mr N feels the Council has failed to properly consider the petitioners’ objections. But I am satisfied it did. That the Council did not share the petitioners’ view is evidence only of a difference of opinion, not administrative fault.
  6. I find no fault in this element of Mr N’s complaint.

Inaccurate information about the allowed appeal

  1. Mr N complains the case officer inaccurately told the planning committee the outline application, which had been allowed at appeal, was for 32 houses.
  2. Mr N says the original outline application had been for 32 affordable houses, but was subsequently amended to an application for ‘residential development’ which did not specify a number of buildings. Mr N says it is clear from the appeal determination the Planning Inspectorate did not consider the original application, and that the alleged error had a “defining influence” on the determination of the subsequent application.
  3. The Council says an indicative outline of the application was considered by the Planning Inspectorate, and it is therefore factually correct for the case officer to have said the allowed appeal was for 32 houses.
  4. I have reviewed the appeal determination. Although it does not specify the number of houses the applicant intended to build, it says (at paragraph 8):

The indicative scheme shows that [one existing building], the house adjacent to the current field entrance, would be demolished to gain access to the site. This … would allow sufficient room for a drive without causing significant harm to the living conditions of neighbours. [emphasis mine]

  1. I have also reviewed the indicative outline which was submitted as part of the outline application. It clearly shows 16 new buildings, each of two semi-detached homes.
  2. Taking these two points together, I am satisfied the Planning Inspectorate had sight of the indicative outline, showing 32 homes, during its consideration of the appeal. I do not consider the case officer’s comment to have been materially inaccurate.
  3. Even if it were, however, it is highly speculative to suggest this, alone, could have led the committee to make a different decision than it would otherwise have done. Regardless of what the Inspectorate had considered, there is no suggestion the planning committee was unclear on the nature of the application it was considering itself.
  4. I find no fault in this element of Mr N’s complaint.

Marketing of land for sale

  1. Mr N says the case officer’s report wrongly says the land had previously been marketed for sale.
  2. The Council says the case officer was simply referring to a policy, and did not say the land had actually been marketed for sale.
  3. This part of Mr N’s complaint relates to a section of the National Planning Policy Framework (NPPF) and a draft Council policy arising from it. It says, in summary, that land designated for sport use should not be approved for development unless it is genuinely surplus, has been marketed at realistic prices, and there is no reasonable prospect of re-use for recreational purposes.
  4. I share the Council’s view the case officer did not say the land had been marketed for sale. The comment to which Mr N refers is simply describing the various tenets of the policy.
  5. In his complaint to the Ombudsman, Mr N goes on to elaborate more about this element. He says the Inspectorate’s appeal determination, that it was acceptable to develop the land despite it being designated for recreational use, was based on the premise there are adequate similar facilities elsewhere in the Council’s area – which is another criterion listed in the NPPF.
  6. However, he says that Sports England’s consultation response makes clear this is not the case. He considers the Inspectorate’s appeal determination should therefore not be binding.
  7. I do not agree. The appeal determination says:

The value to the district of new housing far outweighs the loss of a long-redundant school playing field, which has made almost no contribution to the community as open or as a sports field and for which there is no convincing evidence of likely re-use.

  1. To my reading, it is clear the Inspectorate’s decision was based on the fact that, despite its designation, the land was not being used for sport or recreation, and so had no value in this respect anyway. The Inspectorate’s decision was not made on the basis that it was acceptable to develop the land because adequate alternative facilities existed.
  2. In any case, the Council has no power to overturn the Inspectorate’s decision. It could not simply elect to treat it as non-binding because it had received a consultee response, two years later, which could be read to contradict an element of the appeal determination.
  3. I find no fault in this element of Mr N’s complaint.

Failure to re-consult over amendment

  1. Mr N complains the case officer’s report refers to an agreed number of affordable houses as part of the proposal. He complains this was an amendment which should have been put back for public consultation.
  2. The Council’s response was that the report referred to the Council’s policy of requiring the development to be 20% affordable housing. It says the location of the affordable houses is not yet decided, but it will be secured through a section 106 agreement. The agreement will be negotiated between the Council and developer but will not be subject to public consultation.
  3. The case officer’s report refers to having had some discussion with the developer about the provision of affordable housing. It says the options available to the developer were to provide either 20% on site, or 4% off site, and the developer agreed to the former.
  4. Authorities have discretion to decide whether an amendment to an application should mean returning to an earlier stage of the process, allowing further consultation. It is not fault for the Council to decide it does need to re-consult.
  5. And again, I find it difficult to see what injustice this could be said to have caused to Mr N. His residential amenity, and that of the other local residents, was considered as part of the case officer’s report. The case officer considered there to be no unacceptable impact from the proposed development.
  6. I cannot see how a decision to make some of the approved units ‘affordable’ would alter the effect on his amenity, requiring a reconsideration of this issue.
  7. I find no fault in this element of Mr N’s complaint.

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Summary

  1. I have found fault in the Council’s handling of the site notice issue, as it failed to follow its own policy. I make no recommendations, as I do not consider this has caused Mr N an injustice, but I would ask the Council to reflect on this point.
  2. I have discontinued my investigation of the two elements of Mr N’s complaint related to data protection. I find no evidence of injustice to him, and the substantive matters are better considered by the ICO.
  3. I find no fault in the remaining elements of Mr N’s complaint.

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Final decision

  1. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman

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