Summary: The Ombudsman will not investigate Mr X’s complaint that the Council granted planning permission without referring it to the Planning Committee. This is because it is unlikely that an investigation would find fault by the Council.

The complaint

1. Mr X complains that the Council approved a planning submission under delegated powers without proper public consultation or opportunity for public discussion. Mr X says that the level of public concern should have required the Council to refer the matter to the Planning Committee under its own policy. The application concerns the installation of a permanent roundabout which Mr X says should be temporary because it will increase traffic and poses a hazard to pedestrians.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
3. 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

4. I considered the complaint and the information provided by Mr X and the Council. I have written to Mr X with my draft decision and given him an opportunity to comment.

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What I found

Background

5. The High Speed Rail Act 2017 (the Act) grants deemed permission for Works listed in the Act.
6. Schedule 17 of the Act says that submissions relating to scheduled works need approval from the relevant Local Planning Authority (LPA). The only matters LPAs can consider on Schedule 17 submissions are design and construction.
7. Schedule 17 also restricts the LPA to specific grounds on which it can refuse permission.
8. Schedule 17 says that where earthworks are concerned, the LPA can only refuse permission if:

“the design or external appearance of the works ought to, and could reasonably, be modified—

1. to preserve the local environment or local amenity,
2. to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or
3. to preserve a site of archaeological or historic interest or nature conservation value.

If the development does not form part of a scheduled work, that the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits” (High Speed Rail Act 2017, Schedule 17, part 1)

9. Paragraph 7.4.1 of a Planning Memorandum issued in February 2017 tells Councils to put in place such internal decision-making arrangements as are necessary to ensure it can meet the 8-week timetable for determining requests for approval laid out in the Memorandum. This specifically includes authorising greater delegated powers or forming a dedicated sub-committee.
10. To this end, the Council agreed a policy specifically for dealing with Schedule 17 submissions. This supersedes the policies and procedures used by the Council to determine submissions under the Town and Country Planning Act 1990. It says that submissions will usually be determined by the Head of Service in consultation with the Chair of the Planning Committee and the Cabinet Member for Managed Growth.
11. The provisions set out by the Act require a LPA to consult solely with the Environment Agency, Historic England and Natural England, as and where relevant. There is no requirement to conduct widespread consultation.

What Happened

12. HS2 Ltd is building a roundabout to facilitate access to a works site. The construction of the roundabout is a scheduled work detailed in Schedule 1 of the Act and therefore is not subject to planning permission.
13. HS2 Ltd made a Schedule 17 submission for approval of earthworks necessary for building the roundabout to the Council.
14. The Council made the submission available online via its planning portal. Mr X says there were eight objections submitted by members of the public in response.
15. The Council’s Head of Service determined the application in consultation with the Chair of the Planning Committee and the Cabinet Member for Managed Growth. The Council approved the submission.
16. The Council issued a decision statement summarising its decision and the consultations and representations received. Although not required to, the Council did consider third party representations as part of the decision.

Analysis

17. Mr X says the Council should have referred this submission to the Planning Committee because the level of public concern expressed requires it as one of the delegation exceptions in the Council’s Planning Committee Handbook.
18. However, the Council’s special policy for HS2 Schedule 17 submissions is the relevant policy in this matter. It says that the default approach will be to determine submissions using delegated authority.
19. In establishing this policy, the Council considered that the ‘public concern’ delegation exception in the Planning Committee Handbook was not appropriate because while HS2 submissions might result in public concern, adherence to this exception would result in the Planning Committee considering matters over which it has no influence.
20. Mr X complains that the roundabout is going to be a permanent structure rather than a temporary installation until HS2 works are completed. He says that the Council should reconsider its decision to approve the works.
21. In the decision statement, the Council says that the purpose of the submission is just for the earthworks and not to revisit the decision to build roundabout on a permanent basis. This is because the Council has no power to alter works scheduled in the Act.
22. The Ombudsman cannot question a decision made without fault. The Council reached a decision within the restrictions and requirements of the High Speed Rail Act and the relevant statutory guidance. There is no fault in how the Council reached the decision to approve the submission.

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Final decision

23. The Ombudsman will not investigate this complaint because it is unlikely we would find fault by the Council in not referring the submission to the Planning Committee.

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Investigator's decision on behalf of the Ombudsman