Summary: Mr B and Ms C complained about the Council’s handling of two planning applications. They also complained about the Council’s handling of their complaints about that.

The complaint

1. The complainants, whom I shall call Mr B and Ms C, complained about how the Council dealt with two planning applications for development adjacent to their home, and how the Council dealt with their subsequent complaints 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 these complaints

6. I considered all the information provided by Mr B and Ms C 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 B and Ms C and the Council had an opportunity to comment on a draft of this decision. I considered all comments received in response before making this final decision.

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What I found

The first planning application

8. In 2019 the Council received a planning application for alterations to a budling and for hard surfacing to provide a car parking area. That area adjoins the rear boundary of Mr B and Ms C’s home.
9. Mr B and Ms C objected to the planning application on several grounds. These included impact on wildlife, as well as concerns about impact on their amenity from noise, lighting, and air pollution associated with the proposed use of the land.
10. 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.
11. On 20 June 2019 Mr B and Ms C complained to the Council about the conduct of the planning officer at the Committee meeting. 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. No response was forthcoming.

The second planning application

12. 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 B and Ms C’s home.
13. Mr B and Ms C 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.
14. 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.
15. The mater was referred to committee for a decision, and there was a site visit beforehand by Members. At committee, Members resolved to approve the application, subject to conditions and a decision notice reflecting this was subsequently issued.
16. On 28 February Mr B and Ms C complained to the Council. Their points of complaint included that the consultation response from Highways had been disregarded; that the planning officer had made unnecessary comments, sharing a personal view, during the committee meeting; that the previous reasons for refusal had not been addressed and there had been no consideration for residents. They also reported that after the decision was taken some Members remained uneasy about it. They asked for the development to be put on hold while their concerns were addressed.
17. Mr B and Ms C received no response to their complaint.

Analysis

The first planning application

18. The Council’s handling of the first planning application did not result in injustice to Mr B and Ms C. This is because that application was refused. As there was no significant injustice arising here, I do not need to consider the actions of the planning officer which were the subject of this first complaint.

The second planning application

19. As noted above, the case officer’s report 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”. With the second application, 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.
20. 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.
21. As 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

22. There was clear fault by the Council in its handling of both of Mr B and Ms C’s complaints. There was significant delay in providing a response to the first complaint, no response when that complaint was escalated, and no response to the second complaint.
23. When we asked the Council in July 2020 about this, it advised that the Covid19 crisis had had a significant impact across the borough and the focus for the Council to this point had been on immediate coordinated response to its communities during the lockdown period and preparations to manage the phased opening up of the borough and the town centre. The Council said then that it would now deal with the complaints and respond in 14 days. However, it did not do so.
24. 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 B and Ms C were not updated at all, and when an assurance of response within 14 days was given in July 2020 that was not adhered to either.
25. As a result of the identified failings in complaint handling, Mr B and Ms C were put to unnecessary time and trouble.

Agreed action

26. In recognition of the injustice to Mr B and Ms C identified at paragraph 25 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.
27. The Council has agreed to my recommendation.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman