Summary: Mr B complained the Council failed to follow its procedures when granting planning permission for a development, based its decision on misleading information, failed to properly consider the impact of the development and failed to consider the relevant policies. Mr B also complained the Council failed to fully respond to his complaint. There is no fault in how the Council considered the planning application. The Council did not respond to all the points Mr B raised in his complaint. That has led to him going to time and trouble to pursue the complaint. An apology is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about the way the Council considered a planning application. Mr B complained the Council:
• failed to follow its procedures;
• allowed Members of the Planning Committee to be bullied into changing their vote;
• failed to consider the highway safety impact of the proposal;
• failed to consider the impact on Mr B and the objections raised;
• based its decision on misleading information;
• failed to ensure officers gave Members of the Committee complete and unbiased advice;
• failed to consider relevant policies;
• failed to ensure Members of the Committee were properly trained; and
• failed to respond to all the concerns he raised in his letter of complaint.
2. Mr B says fault by the Council in approving the planning application resulted in a perverse and unlawful planning decision which affects all his village.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision..

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What I found

Probity in planning - Councillors’ Handbook

7. The handbook says it is vital Councillors supporting and seconding a motion that is contrary to officer recommendation cite clear and relevant reasons and policies.

Analysis

8. Mr B says the Council, in granting planning permission for a development on a site next to his property, breached procedural rules when approving the application. I have watched a recording of the Planning Committee meeting. I am satisfied Committee reached its decision properly and there is no fault in how it reached its decision. I say that for the following reasons: the Chair properly moved the motion to approve the application, based on the officer’s recommendation. When that was lost the Chair acted properly by inviting Members of the Committee to propose another motion. During the discussion that then took place a Member said he wanted to move a motion to invite the developer to come back with a reduced density for the site, referring to a recent climate emergency motion the Council had passed and the need for the developer to reconsider the sustainability assessment. I am satisfied the Chair acted properly at that point by reminding Members any motion to defer would need robust planning reasons. The Member then made a motion for deferral. As the Member gave no reasons for the motion to defer at the point at which he moved the motion the Chair was right to ask him to provide reasons. The evidence I have seen is clear the Member did not provide planning or policy reasons to defer the application. The Chair therefore acted properly by advising Members the reasons for deferral needed to be on material planning grounds. The recording of the meeting shows another Member suggested using as a reason for deferral the fact the local plan set 60 as the capacity for the site and the proposal was for 75 houses. The Chair was again right to point out this was not policy and officers were also right to clarify the wording of the local plan was for approximately 60 homes and this was not intended to be a cap for the site. I am satisfied the Chair then acted properly by asking Members to come up with a policy reason to defer the application and there is no evidence of any response to that request. In those circumstances the Chair was not at fault for putting the officer recommendation to approve back to Committee as no other motion had been properly made. So, there is no fault in the process by which the Council granted planning permission.
9. In reaching that view I am aware Mr B says the Council ignored a democratic vote to refuse planning permission. Having watched a recording of the planning meeting I have found no evidence to suggest any Member put forward a motion to refuse the application. I believe the vote Mr B is referring to is the first vote on the officer recommendation to approve the application which was lost. This does not, however, mean the decision was to refuse the application. For that to happen a Member would have had to propose a motion to refuse which Committee would have had to vote on. There is no evidence any Member of the Planning Committee proposed a motion to refuse.
10. Mr B says Members had put forward valid planning reasons to refuse or defer the application. As I said in paragraph 8, there was a proposal to defer. However, when making the motion to defer the Member did not provide any reasons. I recognise there had been an earlier discussion about concerns Members had with the planning application. However, that was during the debate on the application. For the motion to go forward as a formal vote the Member would have had to specify the planning reasons for the deferral at the point at which the motion to defer was made. I am satisfied the Member did not provide planning reasons with his motion for deferral. I am also satisfied, as I said earlier, when prompted by the Chair to identify planning reasons the reasons the Member came up with were not material planning considerations or policy reasons. In those circumstances I cannot criticise the Council for not moving to a vote on the motion to defer or for not seeking a seconder for the motion as at that point it was not a valid motion.
11. Mr B says because Members were minded to refuse the application the Council should have followed its procedures by adjourning to allow a discussion about the refusal reasons. Having listened to a recording of the meeting I have not identified any motion to refuse the application. Nor have I identified any motion to defer the application supported by planning reasons, despite the Chair repeatedly inviting Members to identify planning reasons. In those circumstances there was no reason for an adjournment to take place.
12. Mr B is also concerned about some information provided by the Chair and officers at the Committee meeting. Mr B says the information provided to Committee, and the way in which that information was imparted, bullied Committee into reaching a different decision. Having watched the recording of the Planning Committee meeting I can see the Chair interjected several times to provide advice to Members and officers similarly provided advice. I am satisfied the advice given to Committee by the Chair and officers was appropriate. I appreciate Mr B holds strong views about the development and is unlikely to agree with officers’ views or those put forward by the Chair. However, it is the role of the Chair and planning officers to ensure Committee follows the right procedures, takes into account material planning considerations and does not consider matters which are not material planning considerations. So, reminding Committee Members of their responsibility is not fault. I have found no fault in any of the advice given by the Chair or officers during the Committee meeting. So, I have no grounds to criticise it.
13. Mr B says the Council partly based its decision on misleading information from the applicant. Mr B says officers said amendments had reduced the scale of the development when it had increased from 60 houses to 75. The 60 Mr B refers to is the approximate number allocated for the site. I have seen no evidence to suggest the applicant ever proposed 60 houses for the site and then increased that to 75. There is, however, evidence the applicant amended the design of the scheme to reduce the scale of the development in terms of the size of some of the houses proposed. I am satisfied this is what the Council was referring to, rather than the site allocation of approximately 60. As I am satisfied the Council did not grant planning permission based on a misunderstanding about whether the applicant had reduced the number of houses for the development I have no grounds to criticise the Council.
14. Mr B says the Council failed to consider the objections raised and, particularly, the impact the development would have on his and other neighbouring properties. Having considered the report for the application I note it summarises the objections received, which includes concern about the impact on neighbouring properties. The report then goes into detail about the impact on specific properties, which includes Mr B’s. The report records the officer’s view that due to the separation distance and orientation of the closest property to Mr B the impact will not result in an unacceptable loss of amenity. The report refers specifically to the officer’s view the development will not cause an unacceptable overbearing impact, loss of light or loss of privacy for Mr B and another neighbouring property. I recognise that is likely to be a view with which Mr B strongly disagrees. However, this is a matter of judgement. As I am satisfied the report set out the relationship of the proposed development to Mr B’s property and recorded the officer’s view as to why it was considered that would not cause an unacceptable impact in planning terms I have no grounds to criticise the Council. Further, I note Mr B referred in his verbal address to Committee to his concerns about overlooking from neighbouring properties. That again satisfies me those were matters the Council was aware of when it granted permission for the development. There is no evidence in any of the discussions on the planning application that Members shared Mr B’s concern about the impact on neighbouring amenity.
15. Mr B says several third-party documents showed the wrong location for his property. Mr B therefore says Committee could not have properly considered the impact the development would have on his amenity. The evidence I have seen though satisfies me the start of the report for the planning application included a map showing the development site and Mr B’s property is shown as sharing a boundary with the site. The report also recorded the separation distances between the proposed development and Mr B’s property. I therefore could not say the Council granted permission without understanding how the development would impact on Mr B.
16. Mr B says the Council failed to consider the highway safety impact of the proposal. Mr B also says the Council failed to recognise highways, when responding to the consultation, only commented on capacity and did not consider highway safety.
17. For the highway consultation response, I am satisfied the response says the highway authority has considered the application on safety, capacity and policy grounds. I am therefore satisfied in providing its consultation response the highways authority did not refer only to the capacity of the junction. Although highways recommended the Council include some conditions on highway improvements it did not object to the development. As I am satisfied the highways consultation response was properly recorded in the Planning Committee report I have no grounds to criticise the Council.
18. I am also satisfied the report for the planning application set out why the Council considered the impact of the development on the highway acceptable in planning terms. In doing that the report referred specifically to the advice from the County Council and recorded the officer’s view the development would not cause highway safety concerns. Again, I recognise this is likely to be a view with which Mr B strongly disagrees. However, as the Council has reached that view properly, after considering the comments from the highways authority, I have no grounds on which I could criticise it.
19. Mr B says officers wrongly told Committee they could not consider the impact of other planning approvals affecting the highway when considering the planning application. The recording of the Planning Committee meeting satisfies me the information the Chair and officers gave Members at that meeting was appropriate. It was not fault for officers and the Chair to remind Members they had to consider the planning application in front of them rather than any information about other developments granted planning permission. It was also not fault for the Chair and officers to remind Committee the highways authority had not identified any concerns to warrant refusal of the application. So, I have found no fault here.
20. Mr B says officers failed to present a balanced report or presentation to Committee. I have read the report for the planning application and watched a recording of the Committee meeting. I have found no fault either with the way the report is written or in how officers addressed Committee. Inevitably as officers considered the development acceptable in planning terms the report and address to Committee explained why officers had taken that view. That is part of the normal process. However, I am satisfied the report for the application set out the objections and the officer then went on to set out in the report why the Council considered the development acceptable in planning terms. The officer’s address to Committee then reflected the main points of the report. There are no grounds to criticise the Council here.
21. Mr B says officers failed to respond to the key points raised by public speakers at the Planning Committee meeting. I understand why Mr B would have wanted that to happen. However, there is no requirement for officers to address the points raised by public speakers unless Committee Members raised queries in response to the representations they heard which required an officer response. Having watched the recording I have seen no evidence to suggest Members asked officers to clarify some points raised by objectors. I am, however, satisfied the Chair gave officers an opportunity to comment before opening the debate. At that point the planning officer present clarified the issues relating to highways and the section 106 agreement. As there is no fault here I have no grounds to criticise the Council.
22. Mr B says the Council’s legal adviser referred to case law during the Committee meeting but did not provide details of that case law. Having watched a recording of the Committee meeting I have seen no evidence to suggest Members asked the legal officer to clarify the case law he was referring to. In any event, I am satisfied when the legal officer referred to case law he did so in relation to a suggestion the application could be deferred partly because local residents opposed the size of the development. The legal officer was simply pointing out neighbour opinion alone is not sufficient and there must be robust planning reasons to refuse or defer an application. I consider that standard advice provided to Planning Committees and this would also have been part of the training for Planning Committee Members. I therefore see no reason why specific case law would have had to be cited by the legal officer, particularly when it was not questioned in the meeting. The point is the Council can only refuse or defer a planning application if it has planning grounds to do so and the fact that many people have objected is not, in itself, a planning ground. What is relevant is whether any of those objections raise planning issues which Committee considers warrant refusal or deferral of the application. I have already covered earlier in this statement the fact there is no evidence from the recording of the meeting Members identified valid planning reasons following the motion to defer the application.
23. Mr B says the Council failed to critically assess the flood risk assessment. Mr B says the Council should have taken into account information from the owner of a neighbouring property about being flooded several times. I am satisfied this is a matter Mr B referred to in his verbal address to Committee. I am also satisfied the report for the planning application made clear flood risk was one of the main material planning considerations. I am satisfied the report referred to the comments of the County Council, as the lead local flood authority, which raised no concerns about the application. It was not fault for the Council to rely on the comments from the County Council, as the body responsible for flood risk in the area. I therefore have no grounds to criticise the Council.
24. Mr B says officers failed to give impartial advice to Committee which placed Members under duress to abstain. I have found no evidence to support that allegation. As I have made clear, I am satisfied officers properly advised Members of their responsibilities and what they could and could not take into account during the Planning Committee meeting. That is not fault.
25. Mr B says the Council failed to consider the local plan which said 60 houses were appropriate for the site rather than the 75 approved. I am satisfied Committee properly considered that point. The report for the planning application states clearly the local plan identifies the site as appropriate for approximately 60 homes. The report also records this is not intended as a maximum figure and officer’s view that the principle of 75 dwellings on the site is acceptable. I am also satisfied Mr B raised concerns about 75 dwellings on the site when the local plan had referred to 60 in his verbal address at the beginning of the Committee meeting. It is clear from the recording of the Committee meeting this is an issue Members discussed at length and received advice from officers on. Given all of that I could not say the Council failed to consider the fact the local plan had identified the site as appropriate for approximately 60 houses. As officers explained at the meeting, that did not mean no more than 60 houses were allowed on the site because it was not intended as a cap. Given the extensive discussion which took place and the advice given I could not say the Council had failed to consider the local plan allocation for the site. Clearly the Council has reached a decision with which Mr B strongly disagrees. However, as I said in paragraph 3, it is not the Ombudsman’s role to comment on the merits of that decision unless there is evidence of fault in how it has been reached. I have found no fault here.
26. Mr B says in granting permission for the development the Council failed to consider the impact the development would have on the River Wey corridor, in breach of policy G11. I am satisfied though the report for the planning application lists G11 as one of the relevant policies. In addition to that the section of the report relating to design and character assesses the impact on the corridor of the River Wey. The officer’s conclusion is the development will not have an unacceptable impact, taking into account the boundary treatment/screening and the layout of properties on the site. As well as that I am satisfied Mr B, in his address to Committee, referred to his concern that as houses would be visible from the River Wey the development was contrary to policy G11. Given all of that I could not say the Council had failed to consider the impact the development would have on the River Wey corridor. Clearly the Council has reached a decision with which Mr B strongly disagrees. However, this is a judgement issue and as I am satisfied the Council properly considered the evidence before reaching a decision I have no grounds to criticise it.
27. Mr B says the Council failed to ensure Members of the Planning Committee were properly trained. Mr B says two of those attending Committee were substitutes and three were newly elected Councillors. The Council has provided me with a copy of the planning training records for the Members that attended the Planning Committee meeting. I am satisfied all Members taking part in the meeting received the appropriate training. I therefore have no grounds to criticise the Council.
28. Mr B says the Council failed to respond to all the concerns he raised in his letter of 31 December 2019. I have carefully considered the letter Mr B sent to the Council and its response on 24 January 2020. I do not criticise the Council for responding to the concerns raised by Mr B under separate headings rather than responding to each individual point. However, the Council’s complaint response should still address all the issues raised in Mr B’s letter. Having considered the original letter and the Council’s response I can find no evidence of the Council addressing Mr B’s concern about the lack of explanation of case law either during the meeting or after, his concerns about the quality of the flood risk assessment or his comments about site visits. Failure to address all the points Mr B raised is fault. I consider an apology satisfactory remedy, alongside a reminder to officers dealing with complaints of the need to ensure complaint responses address the concerns raised by those complaining even where a large number of separate issues are raised.

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Agreed action

29. Within one month of my decision the Council should apologise to Mr B for not responding to all his points of complaint and should remind officers dealing with complaints of the need to ensure complaint responses address the issues raised.

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Final decision

30. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman