Summary: There was no fault by the Council in a complaint about its handling of a planning application for a development which involved demolition of a local heritage asset.

The complaint

1. Mr X complains about the Council’s handling of a planning application for a development which involved demolition of a local heritage asset.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone.
5. I sent a draft decision statement to Mr X and the Council and invited the comments of both parties on it.

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What I found

Background

6. Mr X is chairman of a local heritage group concerned about development on a site which was previously a locomotive works.
7. The Council approved an outline planning application for a major development of 1700 new homes as well as office space in 2015 on the site. The application left four of the original works buildings intact.
8. The Council then received a planning application in 2019 which proposed a new link road for the development and involved demolition of one of the buildings.
9. Mr X’s group objected to the application. Mr X says planning officers were intent from the outset to recommend approval regardless of any objections. Mr X cites the Head of Planning stating at a public meeting that he supported the application a few days after it was submitted by the applicant.
10. Mr X says his group as well as other groups asked planning officers whether the road could be moved by a few metres to avoid the building but there was no response from officers.
11. Historic England objected to the demolition of the building on the basis there would be substantial harm to the conservation area. But Mr X is concerned the Council and applicant then met with an official of Historic England. He says they persuaded the official to withdraw the objection which meant it was for the Council to decide whether the building had to be demolished. Mr X queries why his group was not invited to the meeting with Historic England.
12. Mr X’s group pressed the Council to look at other ways of constructing the road without demolition of the building. Mr X says this resulted in the applicant providing two options to the Council but the plans were drawn in a way that would ensure both options were undeliverable.
13. Mr X’s group decided to draw up an alternative plan for the road which moved it away from the building. They submitted this plan as well as a written argument to the Council ahead of the planning committee meeting on the application. These documents were reproduced in a supplementary report to the planning committee.
14. Mr X spoke before the planning committee. He is concerned planning officers did not comment on his group’s plan whereas a critique of their plan by the applicant was included in the supplementary report. He says his group was not given the opportunity to reply.
15. The members of the planning committee decided to defer a decision on the application for a week in order to conduct a site visit.
16. Mr X’s group used the interval to submit a rebuttal of the applicant’s critique of their plan. The documents were provided to the planning committee. However, the planned site visit was cancelled by the Chair of the planning committee.
17. On the day of the second committee meeting, Mr X says a revised supplementary report to the committee contained his group’s plan but did not contain their rebuttal of the applicant’s critique. Mr X notes the report contained comments from planning and highways officers saying his group’s plan did not contain sufficient technical detail. It also contained a new critique from the applicant. Mr X says this placed him at a disadvantage when he addressed the planning committee.
18. Mr X says two valid points about the design of the link road were raised by members of the committee but they were summarily dismissed by officers.
19. I shall not reprise details of the committee reports here. But having read the reports, I am satisfied the report set out officers’ assessment of the merits of the proposal.
20. The application was approved by the planning committee.
21. Mr X complained to the Council that its planning officers were not interested in anything that might interfere with approval of the application. He said his group asked the Council for information repeatedly but there was no communication with them by the planning department. Mr X queried why planning officers did not seek the comments of the Council’s conservation officer on the application.
22. The Council explained, in its response, that all documents from Mr X’s group were made available to members of the planning committee even though they were not included in supplementary reports. It points out the Head of Planning orally reported information had been received after drafting of the committee report and the committee Chair gave members the opportunity to read through the additional documents at the meeting.
23. The Council said there was no reason for Mr X’s group to be advised of the meeting with Historic England. It said any representations in support of or against a development should be made on the merits of the proposal and the meeting did not affect the ability of Mr X’s group to object to the application.

Finding

24. When dealing with complaints about a council’s decision on a planning application, the role of the Ombudsman is to consider whether there was fault in the process leading to the council’s decision. The Ombudsman is not a planning appeal body and so cannot substitute his judgement for that of the council.
25. In this case, I do not find fault with the way the Council made its decision. Planning officers set out their appraisal of the proposal in the committee report. The report gave reasons why the Council considered the proposal was acceptable.
26. I am therefore satisfied there was reasoned justification for the Council’s decision. I accept Mr X does not agree with the judgement of officers. However, it is not for the Ombudsman to consider the merits of a properly reached judgement, that is to say whether it was the right or wrong one.
27. I do not find the Council prejudged the outcome. Clearly, officers were minded to approve the application. But it was for the planning committee to weigh up the arguments for and against the proposal. I am satisfied all relevant material planning considerations were made available to the committee.
28. As to the discussions with Historic England, I do not find Mr X’s group were unfairly excluded from the discussions. Mr X’s group is a third party to the application although an especially interested party. However, third parties do not have a statutory right to be involved in meetings between the Council, applicant and Historic England.
29. The Council did not comment on Mr X’s concerns about poor communication with his group. It is not the usual practice of local planning authorities to engage in dialogue with third parties on planning applications. Indeed, the law is clear a planning application involves a relationship between the planning authority and the applicant with third parties usually limited to making representations on the application at the relevant consultation stage.
30. With this in mind, I cannot conclude Mr X’s group were denied participation in the planning application process because they were able to make representations on the planning application at various stages. Nonetheless, I appreciate there may have been occasions where planning officers did not respond to communication from Mr X’s group.
31. The Council did not seek the comments of the conservation officer. As the proposal involved development in a conservation area, I find the Council should have sought the views of the officer on the proposal. This was an oversight. But I do not consider this was a significant failing so as to conclude there was fault by the Council. There is also uncertainty about the officer’s comments had there been consultation. The uncertainty is such that I cannot conclude that decision on the application would have been different had consultation taken place.

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Final decision

32. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman