Summary: Mr X complained about the Council’s decision to approve a planning application that will allow vehicle access over a track. We ended our investigation as it is unlikely to result in finding a significant fault or an injustice that we can remedy.

The complaint

1. Mr X complained about the Council’s decision to approve a planning application. He said the planning applicant falsely claimed to be the owner of all the land marked in the application. Mr X said this is not true, as he owns part of the access track. Mr X believes the Council should have treated the application as invalid.
2. Mr X said that because of the Council’s decision, the applicant will use vehicles on the track, causing disturbance to his business.
3. Mr X would like the Council to revoke or annul its decision.

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The Ombudsman’s role and powers

4. 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, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Before councils consider planning applications, they must check they have the information they will need. When they are satisfied that they have the information they need to consider an application, they ‘validate’ it and the planning process begins. There are national and local validation lists which set out what information is necessary.
8. The standard planning application form includes an ownership certificate, which the applicant must complete and sign. Third parties sometimes complain that the applicants have completed the wrong certificate, for example, that they have no or limited legal rights over the application site.
9. Councils may treat an application as invalid if the applicant has completed the wrong certificate. However, Council’s cannot determine land ownership rights – only the courts can do this.
10. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. 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.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
14. Regulations set out the minimum requirements for how councils publicise planning applications.
15. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
16. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
17. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

Background

18. Mr X owns a business that has buildings placed close to a track which is closed by a gate. A neighbour lives in a house situated along the track.
19. Access rights over the track have been in dispute for some time and as I understand it, legal action over access rights for vehicles is ongoing.
20. The neighbour sought planning permission to make a new access, which would join the track closer to his house, so avoiding the part near Mr X’s buildings and gate.
21. The Council posted a notice near the site, but did not send a neighbour notification letter to Mr X.
22. Mr X complained about several issues, including:
• That the applicant did not own all the land which was marked in red in the application plan. Mr X said the Council should treat the application as invalid because the applicant had completed the wrong ownership certificate.
• Not all the planning history was shown in the case officer’s report.
• A technical highway report was not uploaded to the Council’s website, so he did not get the opportunity to comment on it.
23. In response to Mr X’s complaint, the Council explained:
• It did not send him a neighbour notification because its computer mapping system did not show that he shared a boundary with the site.
• The planning history Mr X referred to dated back several decades and its document management system had not automatically inserted these details into the case officer’s report. The Council also said that limited weight could be given to these decisions, as planning law and guidance had changed considerably since then.
• Because of an error, the technical highways report had not been uploaded for public view. The error was realised before a decision was made and shared with the Highways Authority (HA), who took account of the report before it gave its advice. The Council said that it also made the document available too.
• Much of Mr X’s complaint related to his private rights as a landowner, which are not a planning consideration.
24. I asked the Council why it decided to continue processing the complaint, after Mr X had said the wrong ownership had been completed. The Council explained that after it had written to the applicant about this issue, the applicant wrote back to say he did have a legal right to drive over the land, though it was disputed by Mr X. It said it could not know who was right, but it was able to make its planning decision. The Council explained that legal disputes over land are not a planning matter.

My findings

25. Before we investigate or continue an investigation, we need evidence to show the complainant was caused a significant injustice that we can remedy. I am not persuaded further investigation is likely to find significant fault or meaningful outcome and my reasons are as follows:
• The injustice Mr X claims is mostly related to his private rights and I understand he has already begun taking legal action to stop his neighbour using vehicles on part of the track.
• We are not a court and cannot quash the planning decision. Councils can revoke their own decisions, but whether they do this or not is a matter for their judgement and discretion.
• We cannot say the Council was wrong to continue considering the application and not treat it as invalid. Councils cannot determine land ownership rights and their decisions are only about whether they find development proposals acceptable in planning terms.
• The Council has accepted it failed to upload a technical document and Mr X complains he did not get the chance to comment on it. This may be so, but we cannot know the outcome would have been any different.
• The planning history of a site is a material consideration, but not every possible consideration needs to be referenced in the case officer’s report. Planning case officers’ reports should record the main issues and are intended to inform the parties to the application, the Council and the applicant, who are likely to be already aware of those issues. I cannot say it is likely the outcome would have been different, even if details of older decisions had been included in the planning history section of the report.
• The Council has explained why it did not send Mr X a neighbour notification letter. Instead, it posted a notice near the site and Mr X did object before a planning decision was made. Even if I found evidence of fault here, I would not be able to show it made any difference to the outcome.

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Final decision

26. I ended my investigation as it is unlikely to result in a finding of fault, a significant injustice we can remedy, or a meaningful outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman