Summary: Mr X complained about the County Council’s decision to recommend a change to the layout of a junction, where a cycle path crossed a new access road. Mr X says he feels unsafe crossing the junction on his bicycle, because priority is given to vehicles. There is no evidence of fault in the way the County Council made its decision.

The complaint

1. Mr X complains about the County Council’s decision to recommend changes to a planning application for a development that included an access road which crossed a cycle path.
2. Mr X says before making its recommendation, the County Council failed to consider relevant policy and guidance. He says he feels unsafe when crossing the access road on his bicycle.

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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)
5. We can decide whether to start or discontinue an investigation into a complaint or part of a complaint that is within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the County Council’s response to the complaint and considered documents including the plans, the highway officer’s report, and relevant local and national guidance.
7. I gave the County 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 and highways law and guidance

8. Local Planning Authorities (LPAs) should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
9. 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.
10. 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.
11. LPAs may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. 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 LPA should consult the relevant Highway Authority (HA). In this case, the County Council is the relevant HA.
13. LPAs 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. Similarly, HAs are not obliged to follow policy or guidance and treat it as if it creates binding rules.
14. The courts have made it clear that:
• officer reports do not need to be perfect, as their intended audience are the parties to the application who are well versed of the issues; and
• officer reports do not need to include every possible consideration, but just the principle controversial issues.
15. Reports setting out HA comments on planning applications are often briefly stated, including details of any objection, recommendation or recommended planning condition relating to highway matters.
16. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
17. If the LPA 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 LPA 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.
18. This type of amendment is known as a non-material amendment.
19. LPAs 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

20. The LPA consulted the HA about a planning application that included a new access road which crossed an existing cycle path.
21. The HA officer 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.
22. The HA officer recommended a similar layout and design as had been approved at another junction on the same cycle path.
23. The LPA approved the application subject to planning conditions in accordance with HA advice, 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.
24. Consideration and control of the highway continued after the LPA made its planning decision. The developer was obliged to provide details to show 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.
25. Mr X was not aware of the planning application and HA advice at the time the decision was made but found out afterwards when development began. Mr X uses the cycle path to commute. The path is used by both cyclists and pedestrians. Recently works began on the access road and crossing and Mr X became concerned.
26. 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.
27. Mr X thought the access was unsafe and discouraged cyclists, so he complained to the County Council. He said he thought the access that had been approved was not consistent with 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 also complained the HA officer who made the recommendation to the LPA had not considered relevant local policy in the County Council’s Active Healthy Travel Strategy (AHTS).
28. Mr X believes the failure to refer to this other guidance shows the HA failed to consider it. Mr X believes if the guidance had been considered and followed, the HA might have recommended a different layout, maintaining priority across the road for cyclists and pedestrians.
29. Mr X would have preferred the original layout or some alternative that would give priority across the access road to cyclists and pedestrians.
30. Mr X also suggests we should consider the HA’s ongoing involvement in negotiations with the developer to carry out works on the public highway.

My findings

31. We are not an appeal body. Our role is to review the process by which decisions are made. Where we find fault in the decision making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
32. The HA officer’s report sets out the recommendations and reasons in some detail. From reading the report it is clear the HA officer considered the original junction layout but thought it unsafe. Because of this, he recommended a different layout which gave priority across the access road to vehicles, not pedestrians and cyclists.
33. The report refers to national guidance in the Design Manual for Roads and Bridges, but not the other guidance Mr X mentions in his complaint. I do not consider it was fault not to refer to the other guidance, and my reasons are as follows:
• HA officer reports do not have to include every possible relevant consideration but should focus on the main issue. The main issue here was safety and I can see that was considered, with reasons provided for the recommendation that was given to the LPA.
• Although we would expect an HA officer to know about local as well as national policy, we would only expect them to refer to it in circumstances where it was considered relevant.
• The policies and guidance documents Mr X refers to, aim to encourage and promote cycling, including giving priority access to cyclists. But they do not trump all other considerations. HAs are entitled to recommend that general policy aims are not followed, if it is in their view safer not to do so.
• This was a planning decision and the LPA was not obliged to follow HA advice. In this case the LPA considered HA comments and decided to follow them but was not bound to do so. The developer could have appealed against the LPA decision to vary the layout but did not do so. Even if the HA had given the advice Mr X would have preferred, it is by no means certain the outcome would have been any different.
34. The HA officer’s report demonstrates the main issues were considered before advice was given. In these circumstances I find no fault.
35. I have decided not to investigate the HA’s ongoing involvement in relation to negotiations and decisions about works carried out on the public highway. My reasons for this are as follows:
• The development was made lawful by the decisions of the planning authority. I have investigated a complaint about this decision and found no fault.
• The HA considered the proposed access layout, which was of a type Mr X would have preferred, to be unsafe. It gave clear reasons for its position in the advice given to the planning authority, and I found no fault in the way it gave this advice.
• The reasons were based on the HA assessment of the context, the existing speed designation of the highway and its evaluation of the risk of conflict between cyclists and motor vehicles. In these circumstances, there seems little to be achieved in picking over subsequent decisions, when the core judgement, an evaluation of road safety, is so clearly set out in the papers. We are not an appeal body to judgements and cannot criticise judgements made without fault in the decision making process.

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Final decision

36. I have completed my investigation as I found no fault in the decision making process.

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Investigator's decision on behalf of the Ombudsman