Summary: Mr and Mrs B complained about how the Council dealt with a planning application for development adjacent to their home, and with their subsequent complaint about that. We find no fault by the Council in the handling of the planning application. We find there was fault in complaint handling, causing injustice for which the Council has agreed to apologise.

The complaint

1. The complainants, whom I shall call Mr and Mrs B, complained about how the Council dealt with a planning application for development adjacent to their home, and how the Council dealt with their subsequent complaint about that. They consider that failings by the Council in the planning process mean that their amenity has been unfairly adversely affected, and that failings in complaint handling led to unnecessary time and trouble seeking to get matters resolved.

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The Ombudsman’s role and powers

2. 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)
3. These complaints include matters that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
4. 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)
5. 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

6. I considered all the information provided by Mr and Mrs B about their complaints. I considered information about the planning applications available online, including the planning officer’s reports, decision notices, and minutes of relevant committee meetings.
7. Mr and Mrs B and the Council had an opportunity to comment on my draft decision. I considered all their comments before making this final decision.

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What I found

Background – the first planning application and complaint

8. In 2019 the Council received a planning application for alterations to a building and for hard surfacing to provide a car parking area. That area adjoins the rear boundary of Mr and Mrs B’s home. They objected to that planning application on several grounds. These included concerns about traffic congestion and impact on their residential amenity from noise, lighting, and air pollution associated with the proposed use of the land.
9. Although the planning officer recommended approval, at Committee the application was refused. The grounds for refusal cited in the decision notice were that the proposal conflicted with two core strategy policies. These related to design, and to impact on adjoining occupiers, taking account of such things as noise and other environmental impacts.
10. On 12 June 2019 Mr and Mrs B complained to the Council about the how the planning application had been dealt with at Committee. They did not receive a substantive response until 19 January 2020, after which they promptly requested escalation of their complaint to the next stage of the Council's complaints process. They did not receive a further response in respect of this.

The second planning application

11. Later in 2019 the Council received a further application for development on the site, again to include a car parking area to the rear of Mr and Mrs B’s home.
12. Mr and Mrs B again lodged their objections, reiterating what they had set out in response to the previous application and stating that all original concerns remained and their view that there had been no significant change from the previous application and that the reasons given for refusal of that application remained valid.
13. The planning officer prepared a report. This included reference to the previous application and the refusal, and the reasons for that. In terms of policy considerations, it set out the following:
    “Policy CS18 requires that development take account of the relationship between public and private spaces and has an acceptable impact on the amenity of users and neighbours. I note that the applicant has submitted information setting out how the scheme has been revised to address these concerns. These include clarifying how and when the car park will be used, it is suggested that these be set out in a condition on any permission to ensure that they are adhered to… Policy CS2 states that ‘All developments will be required to have an acceptable impact on the amenity of users or adjoining occupiers, taking into account things such as noise, odour, air quality, traffic, appearance, overlooking, shading or other environmental, social or economic impacts”.
    The report noted an environmental health officer had been consulted and had suggested conditioning matters in respect of lighting and hours of construction. The proposal was deemed acceptable in terms of impact on air quality. The report set out the planning officer’s view of agreement with these comments and noted that the level of proposed activity was acceptable. The proposal was deemed to accord with the relevant policies and the wider statutory guidance. Comments from other consultees including the Highways authority were also noted. The planning officer’s recommendation was for approval subject to conditions.
14. The matter was referred to committee for a decision, and there was a site visit beforehand by Members.
15. Mr B spoke at the Committee meeting as objector. His notes show that he referred to air quality and light pollution issues; that there were concerns about the number of vehicles which would be using the site; and that information about proposed times of opening and closing times was unclear. He said that previous objections had not been overcome, and in particular Highway’s recommendation that the application should be refused on safety grounds had been disregarded. He set out that applications should have an acceptable impact on neighbouring amenity, but this application was not acceptable in its present form and no recognition had been given to the concerns of residents.
16. After debate, Members resolved to approve the application, subject to conditions and a decision notice reflecting this was subsequently issued.

The second complaint

17. On 21 March 2020 Mr and Mrs B made a second complaint to the Council. They said that they had asked if they could address the planning committee before the applicant, as they felt that the applicant had an advantage by speaking last: they said the Council had ignored this request. They went on to say that they felt the committee meeting had been poorly conducted, saying ‘it was very obvious from the start that most of the committee members had been coerced’, and that when one of the Members asked some extremely relevant questions she was mocked by others. They considered the planning officer had managed to overturn the refusal of the previous plan, getting a majority approval with very few changes and against the advice of Highways and Council policies and national guidance. They also complained that no conditions had been imposed on hours of use or the number of vehicles and they felt no consideration had been given to the residents. They said they had spoken to some of the Members after the meeting and had been told most of them did not read objections letters and that some had been very uncomfortable with the proposed planning application and the situation they were put in. Mrs and Mrs B asked that the development be put on hold until a full investigation had been carried out. They also referred to having made the earlier complaint in June 2019 but had not received a response.

Complaint responses

18. As noted at paragraph 10 above, the Council replied to Mr and Mrs B’s first complaint on 19 January 2020, but Mr and Mrs B received no further response when they requested escalation.
19. On 12 October 2020, after contact from the Ombudsman, the Council replied to Mr and Mrs B’s complaint of 21 March 2020 about the handling of the second planning application. The Council apologised for ‘the inordinate amount of time it has taken to respond to this’, and explained that the delay was due to work which had to be done to manage the Council’s Covid19 recovery plan. In respect of the substantive issues, the Council said:

• Mr B had been given the opportunity to speak in opposition to the proposed plan at the planning committee meeting in accordance with the Councils agreed speaking at planning committee leaflet. The adopted protocol reflects the general arrangements accepted in public inquiries where the developer/applicant has the last word and can respond to the points which have been put forward. It said Mr B’s request to speak last had been considered and declined, not ignored.
• Regarding the view that the committee meeting had been poorly conducted, the Council said this was considered unfounded by others who h ad been present, and it was not clear what Mr and Mrs B were referring to in saying most of the Members had been coerced. Regarding the change form refusal of the earlier application to the approval of this one, it said the advice in the planning report to committee for the original application had been for approval and Members had decided to refuse permission against officer advice, and the report on the revised scheme had set out how the scheme had been amended from that initially proposed, to overcome the concerns of the committee. It said the argument in favour of granting permission was accepted by the Members and, except for one abstention, all had then voted in support of the recommendation to approve. A condition was imposed in respect of lighting of the car park, but not to restrict the number of vehicles in the car park as that would be achieved by the number of car parking spaces.
• Members would not necessarily read every objection letter on any planning application, but objections are summarized in the report and late objections are read out or summarized for the committee, so they would have been aware of representations and material issues raised. The Council did not consider Mr and Mrs B’s complaint disclosed anything of concern in terms of the Members' code of conduct, nor of bias or predetermination.
• Although Mr and Mrs B had asked that no work should be started on the development until a full investigation had been carried out, planning permission had been granted and proceeding with the development was matter for the planning applicant (subject to any pre-commencement conditions being met).

Analysis

How the planning application was dealt with

20. As noted above at paragraph 13 above, the case officer's report for the second planning application noted the reasons for the refusal of the first application, including reference to relevant policies and the view expressed in that case that "The parking spaces are too close to the boundary and will result in lights shining through the hedges, air pollution issues and general noise and disturbance issues to the neighbours amenity. The pole mounted lights would also be a nuisance to the neighbouring properties". The environmental health officer provided comments on these matters of potential nuisance and recommended conditions, which were subsequently attached to the planning consent. Regarding design, the planning officer's view was that overall, the proposal was not unduly out of character and was considered to accord with relevant policy matters. That was a view the planning officer was entitled to take, exercising professional judgement.
21. On the matter of the consultation response from Highways, this set out the view that the proposal as submitted would likely lead to vehicles waiting on a classified highway to enter the site and / or vehicles reversing to or from a classified road against the best interests of highway safety. The case officer set this out in the report, and considered it: his view was that on balance and taking account of the nature of activity on the site, the existing access was sufficient. The views of consultees including Highways should be noted and considered, as they were here, but neither the planning officer nor committee are bound by the recommendations of consultees.
22. As also noted above, the planning application in this case was determined by committee. It was for Members to decide if they had enough information to reach a decision on the application, and if so, how to vote. It is for Members to familiarise themselves with all points of relevance to an application including planning history. They had an officer's report, which included reference to the earlier application which had been refused, and the benefit of a site visit. I have seen no evidence that the decision to approve the application was made in ignorance of any material facts, and due democratic process was followed. The decision was not affected by fault.

Complaint handling

23. There was clear fault by the Council in its handling of both of Mr and Mrs B’s complaints.
24. There was significant delay in providing a response to the first complaint, and no response when that complaint was escalated.
25. When the Council replied to the second complaint, after we brought this to its attention, it indicated that the Covid19 crisis impacted on its ability to prioritize and respond the complaint. In May 2020, the Ombudsman published guidance, “Good administrative practice during the response to Covid19”. The guidance acknowledges the challenges faces by councils in this period, and that complaint-handling capacity is likely to be reduced. However, the expectation is that councils should be realistic with complainants about timescales for dealing with complaints and let them know where there is going to be delay. Reasons for delay should be documented and explained. In this case, Mr and Mrs B were not updated at all in the months between making this complaint and receiving response.
26. As a result of the identified failings in complaint handling, Mr and Mrs B were left with uncertainty about what was happening to their complaint and were put to unnecessary time and trouble seeking to have these matters concluded.

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Agreed action

27. In recognition of the injustice to Mr and Mrs B identified at paragraph 26 above, I recommended that within four weeks of the date of the decision on these complaints, the Council issues them with a formal written apology.
28. The Council has agreed to my recommendation.

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Final decision

29. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman