Summary: Mr X complains about the Council’s decision to approve a planning application which included an access road which crossed a cycle path. Mr X says he feels unsafe when crossing the road on his bicycle because priority was given to vehicles. There was no fault in the way the Council made its decision.

The complaint

1. Mr X complains about the Council’s decision to approve a development that included an access road which crossed a cycle path.
2. Mr X says because the Council failed to follow relevant policy and guidance, he feels unsafe when crossing the access road. He believes the Council should have:
• insisted on a different layout, which would have given priority to pedestrians and cyclists; and
• put up signs for motorists, warning them to look out for cyclists and pedestrians who might be crossing the access road.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave the Council and Mr X an opportunity to comment on an earlier draft of this decision and took account of any comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• national planning policy and guidance;
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Regulations set out which bodies should be consulted before planning decisions are made. Consultees may make recommendations on applications, including suggesting planning conditions. Where development includes access to main roads, the Council should consult the relevant Highway Authority.
12. Councils are not obliged to follow guidance or advice they receive from consultees. They are obliged to consider the facts insofar as they relate to material planning issues.
13. The courts have made it clear that:

• case officer reports do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• case officer reports do not need to include every possible planning consideration, but just the principle controversial issues.

14. Regulations set out the minimum requirements for how councils publicise planning applications.
15. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
16. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
17. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.
18. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
19. If the Council decides the changes are ‘material’, it may require that the whole process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process, but only if:
• it considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make; and
• the nature of the application remains the same, so the amended proposal is still substantially the same as the original.
20. This type of amendment is known as a non-material amendment.
21. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.

Background

22. Mr X uses a cycle path to commute. The path is used by both cyclists and pedestrians. Recently works began on an access road to a new development that the Council had approved a few years before. The access road crosses the cycle path.
23. Mr X says he was dismayed by the layout of the crossing because:
• the road had a wide entrance which allowed vehicles to enter at speed;
• priority had not been given to pedestrians and cyclists, but to vehicles crossing the path.
24. Mr X thought the access was unsafe and discouraged cyclists, so he complained to the Council. He said he thought the access that had been approved was not consistent with local and national policy, standards in guidance from Sustrans (a charity that promotes cycling) and in other authority’s guidance, such as the London Cycling Design Standards. Mr X says he did not get an opportunity to raise these documents, as he had not been aware of the application.
25. Before the Council made its planning decision, a case officer wrote a report setting out the main planning considerations and the officer’s recommendations. The case officer’s report included:
• a description of the proposal and site;
• comments from consultees including the County Highways Authority (HA);
• a summary of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
26. The case officer stated that the HA did not object to the development in principle but recommended a different layout for the access than that which had been submitted. The HA thought that because of the current speed limit on the main road, the access needed:
• wider visibility splays;
• give way markings on the cycle track; and
• priority to be given to vehicles crossing the path, rather than pedestrians and cyclists using the path.
27. The Council’s planning committee approved the application subject to planning conditions, some of which controlled:
• plans showing visibility splays on the entrance to the highway; and
• access road plans, including layout, give way markings on the cycle way and parking controls.
28. Consideration and control of the highway continued after the Council made its planning decision. The developer was obliged to show that details of planning conditions were satisfied, and the developer continued negotiations with the HA for highways works, so it could decide whether the new arrangements were satisfactory.

My findings

29. Our role is to review the process by which planning decisions are made. Before it made its decision, the Council publicised the application and took account of comments, including those from the HA. The report shows the key planning considerations, including those relating to highway safety, were considered by the Council. The Council has followed the decision making process we would expect and so I find no evidence of fault.
30. Mr X did not object to the application, because he was unaware of it until after approval had been granted. He says the Council should have:
• taken account of other guidance from Sustrans; and
• considered the policy of another planning authority.
31. If Mr X had raised these guidance documents in an objection before the Council made its decision, I would have expected it to decide whether they were relevant, and if so, what weight if any to give to them, but this did not happen.
32. Mr X says he would have raised his concerns before the planning decision was made, if he had an opportunity to do so. The Council has a time limited opportunity through the planning process to assert controls over development. It is obliged to follow publicity regulations and policy to give the public and other consultees an opportunity to comment.
33. However, once the decision making process has finished, its control is limited to ensuring compliance with approved plans and planning conditions. When making its decision on an application, the Council must use its best efforts and foresight to make its judgements – it cannot use hindsight to go back and remake decisions after approved development becomes lawful.
34. The Council was not obliged to consult the other authority or Sustrans, but it was obliged to consult the County HA. It did this and decided to follow its advice. The HA had given reasons why the submitted layout plan should not be followed and why its suggestions for a different layout were necessary for highway safety.
35. Mr X believes the Council should have started the planning process again and reconsulted the public on HA’s suggestions, but at this point the application plans had not changed and different plans had not been approved. Instead, the committee allowed the potential for change to highway layout to be dealt with by planning conditions. This decision was within its discretion.
36. Mr X says the Council should have followed its own and national planning policies. Councils are not obliged to follow policies and must always be prepared not to do so. The Council was given a warning by the HA that the proposed layout was potentially unsafe and was entitled to give weight to this advice. The case officer’s report does not have to include every thought and consideration but must include the key issues. In my view, the case officer’s report is satisfactory as it clearly explains why it leaves details of the road layout to be decided later.
37. Mr X strongly disagrees with the HA’s advice and the Council’s decision, but in the absence of fault in the decision-making process, this was a planning decision the Council was entitled to make.

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Final decision

38. I have completed my investigation because I found no fault in the way the Council made its planning decision.

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Investigator's decision on behalf of the Ombudsman