Summary: The Council properly considered a planning application to build a new leisure facility close to Mrs B’s home. However, it should have made clear to all parties that it was considering the application afresh at the final committee meeting. This was fault, but the impact on Mrs B was limited because the Council considered all the aspects. The Council has agreed to review its procedures so it is clear how to proceed when an application is deferred and then heard afresh.

The complaint

1. Mrs B complains about how the Council handled planning matters at a site near her home. In particular, she says the Council:
• failed to notify the residents that the deferred application would be looked at afresh;
• did not ensure that the same members were present throughout the entire debate on the application in contravention of the Council’s Planning Committee Rules (5.1). In this case, the entire debate spanned three committee meetings as the application was twice deferred. Mrs B says that Members raised issues at earlier meetings but because they were not present at the final meeting, the issues were not addressed; and
• did not properly consider the planning application before granting permission and did not consider the full range of the objections made.
2. Mrs B says that as a result of the Council’s errors, the objectors were put at a disadvantage and the Council granted planning permission that will have a significant impact on the use of her property.

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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)

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How I considered this complaint

5. I considered the information provided by Mrs B. I considered the information provided available on the Council’s website including the planning documents, committee reports and the audio recordings of the committee meetings. I also considered the correspondence between the parties and the Council’s Planning Committee Rules and planning law and policy. Both parties were given the opportunity to comment on a draft of this statement. The Council confirmed it had not comments to add. I have addressed Mrs B’s comments before issuing my final decision.

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What I found

Planning law and policy

6. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. The development plan must take account of the National Planning Policy Framework which sets out the Government’s planning policies. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
7. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
8. The National Planning Policy Framework says that to decide whether a site is the best one for a particular use, the applicant must show it has applied the ‘sequential test’. The sequential test guides main town centre uses, such as retail and leisure, towards town centre locations first, then if no town centre locations are available, to edge of centre locations, and then if neither of these are available, to out of centre locations. The sequential test requires the applicant to show it has made a thorough assessment of the suitability, viability, and availability of locations for the use in question. (National Planning Policy Framework, paragraph 86)
9. If there are more central locations, the applicant should explain why these were rejected. The application of the test needs to be proportionate and appropriate for the proposal. Where an applicant fails to satisfy the sequential test, then planning permission should be refused.
10. The law says that where a Council wants to develop land itself, or jointly with another body, it applies to the Local Planning Authority as any other applicant would. (Town and Country Planning Act 1990, section 316).
11. Planning regulations seeks to prevent conflicts of interesting arising when a council is determining its own planning application. It prevents any application being determined by any committee or officer if it is the same body which is responsible for the management of the land or building to which the planning application relates. (Town and Country Planning General Regulations, regulation 10)

The Council’s procedural rules

12. The Council’s procedural rules say that speakers will only be allowed one opportunity to address the committee, irrespective of whether the application is deferred to a later meeting. However, the chair has discretion to allow speakers to address the committee on new issues or in exceptional circumstances following a deferment. (4.3(iv) of Coventry City Council Planning Committee Procedure Rules)

Background

13. Mrs B lives in a residential area. Mrs B’s complaint concerns a planning application, made on behalf of the Council, for permission to erect a sports facility on a backland site behind Mrs B’s house. The surrounding houses back onto all sides of the site. There is a single-track access way to the site. The existing building was a single storey club house, and the outdoor space provided a green and carpark. Although the site is already used for a sports facility, this building will be much bigger and is intended to host a facility relocated from a city centre leisure centre, with the prospect of developing the sport and hosting national championships. The single lane access way will remain the same. A larger access will be opened up on one boundary for construction traffic and then a locked gate installed accessible only to emergency vehicles.
14. The Council’s planning committee considered the application at three separate meetings. This is because the committee decided to defer the application at the July and September 2019 meetings, before granting planning permission in December 2019.
15. Overall, Mrs B’s main concern is that the deferrals meant that different Members debated the application and important elements that had been raised before were not addressed in the final meeting. Mrs B also says some members appeared to alter their view on the specific issues across the three meetings. Mrs B is concerned that this means the Council did not properly consider the proposal when it granted planning permission.
16. In terms of the proposals, Mrs B and many of her neighbours objected to it on the grounds that:
• Other sites would be more suitable;
• The visual impact of the building due to its bulk and height; and
• That the access to the site would not be safe for the volume of traffic because it is via a single track between houses; that there would not be enough parking provision and visitors would park on the surrounding residential area; the emergency vehicle access would be used by others and the gates would be visually intrusive.

The July 2019 planning committee meeting

17. The Council’s planning report to the committee set out the proposal. The residents had submitted a petition objecting to it. A number of residents and two councillors spoke against the application. In summary, they said that this was not the right site or location; the building is too tall and not suited to the area; that the applicant had underestimated how many cars would need to access and park at the site, and that the access was not safe.
18. The objectors said there were a number of alternative and better sites and they could not accept that this was the preferred site. The Council’s planning officers clarified that the applicant does not have to show that this is the best site but that the sequential test does not identify any preferred sites. The Council’s legal officer made clear that it was not for Members to determine whether there are alternative sites or whether these are suitable. But the committee must decide whether the development as proposed, is acceptable in planning terms.
19. The planning officer explained that four sites in the city centre had been identified and may have been available. However, these had been rejected because they were either in tower blocks, too small, or only available for two years. All the other potential sites were out of the city centre.
20. Several members raised concerns that the sequential test had not been demonstrated and they were not satisfied that there had been an adequate search for alternative sites.
21. Objectors and members raised that an application had been refused in 1969 because the access was not sufficient, and traffic had increased significantly since then. They said that if the intention is for the centre to develop the sport, then the parking provision is not sufficient, and only this week on the existing site, 45 cars had been parked there when there were only 32 spaces. An objector said that the Council’s parking standard required there be 80 spaces.
22. A Member in support of the application said that the applicant’s transport statement (which sets out the highway safety and parking provision), was correct and there are good public transport links from the city centre to the site. The planning officer told the committee that car park would be managed better with marked bays and a one-way system and the provision was adequate.
23. The planning officer also told the committee that although objectors were concerned at the impact of the building, it was acceptable. The roof height had been lowered and there was no other location on the site for the club house. The proposed location minimised the impact on neighbouring amenity.
24. A Member also raised concerns about the emergency vehicle access. She said there had been problems elsewhere in the city with key holders for emergency access gates. The Fire Service had not objected to the access but the Member wanted to seek its advice about potential problems.
25. The committee decided to defer the application so that the sequential test could be reviewed.

The September 2019 planning committee meeting

26. The Council’s report to the planning committee again recommended approval.
27. The planning officer told the committee that since the application was last deferred, the applicant had identified six further site. Three of these were in the city centre but were not available, and three were car parks still in use and not for sale. The officers’ assessment was that this site met the sequential test.
28. The planning officer made clear that the impact on the neighbouring houses was acceptable because the club house had been reduced in height and was 22 metres from the nearest houses. The officer said that if it had been a residential development on this site, then only 20 metres would be needed between the development and the nearest existing houses.
29. The Highways Authority had no objections to the application. The officers had established that the club that would manage the site had included its plans to grow membership. The Council had introduced a planning condition that would limit use of the facilities so that there would not be too many cars.
30. Members had visited the site that morning. In summary, various Members at the meeting said:
• It appears to be intrusive and on the site visit, cars were parked too close to the junction. The highways issues do not appear to have been resolved.
• A Member asked whether the Council had considered another local sports venue. The Member said the venue had contacted the Council to discuss adding this facility to its venue but had no reply.
• They raised concerns about the transport statement and the parking provision. If the applicant had underestimated the number of vehicles using the site it would impact on the local residents and the safety of the access.
31. Officers confirmed that the size and location of the clubhouse, and the access to the site cannot change and Members will need to decide if that is acceptable in planning terms. The Highways Authority said it had to base its assessment on the applicant’s statement and had no objections to the development on highway safety grounds.
32. Officers addressed concerns about the sequential tests, the other sites identified by the residents since the July meeting, and the site suggested by the Member. The planning officer explained that 18 of the sites identified by residents were out of centre locations, and so could not be considered as part of the assessment. The sequential test will only allow the Council to consider sites in or around the end of the defined city or district centres. Residents had put forward another three sites but of these, one had already been allocated for small independent retail, the second had been investigated but was not available, and the third was part of a major venue and was to be used for more parking.
33. The Council confirmed that the local sports venue identified by the Member had not been part of the sequential assessment. The officer clarified that the Council cannot guarantee that all sites have been considered but must decide the matter on the information submitted by the applicant. However, the sequential test is about making sure the proposed facility could not be located on a more preferential site. It does not require the applicant to change the proposal to fit other sites. The officers suggested that the committee could decide the other issues such as the suitability of the access, the impact of the development on residents and delegate the final decision to officers once they had completed a sequential assessment of the local sports venue.
34. However, the committee decided to defer the application again to allow the applicant to apply the sequential test to the local sports venue, and to allow the Highways Authority to review the transport statement.

The December 2019 planning committee meeting

35. The Council decided to hear the application afresh as it had been twice deferred and some Members had not been on the committee at the earlier meetings. It did not make this clear to the residents until the start of the meeting. Mrs B says had they known, their representations to the Council would have been different.
36. The Council’s planning officers submitted a detailed committee report. In summary, this said:
• The application had been twice deferred and set out the reasons for this.
• There had been a number of objections to the planning application and it summarised the main issues, as well as referring to the residents’ petition.
• Reiterated the officers’ assessment of the impact of the clubhouse and use of the site on residents. The report included that although it was not a direct comparison, the Council’s planning policy would allow a housing development closer to the rear of the existing properties.
• Acknowledged that objectors were concerned that the facility would allow access to the site via the emergency access. However, the Council made clear that it could not refuse planning permission based on an assumption that it might be breached.
• The Highways Authority accepted the Transport Statement and raised no objection to the development.
37. At the meeting, the Council’s legal officer advised that the meeting would hear the application afresh, with a presentation from officers, speakers in support and objection. He explained that this was to ensure that the process is fair and open. He told Members they should ask questions and make sure they have sufficient understanding of the application before voting.
38. The planning officer outlined the report. He said:
• The sequential test had been the most controversial aspect. It has been updated twice assessing 41 different sites in total. The Council accepts that no alternative sites are available or deliverable.
• The Highways Authority has confirmed it was satisfied with the access to the site. It has considered but rejected an alternative access. It has recommended the Council attach a planning condition to restrict parking either side of the junction and opposite the access.
• The Highways Authority also confirmed it was satisfied with the parking provision.
• The Council considered the impact on residents of the clubhouse is acceptable, given the pitched roof and distance from the nearest neighbours.
• The officer added that the Council had considered the alternative venue suggested at the September meeting but to move the facility here would mean the venue would lose existing sporting facility. The report said that this may be unacceptable to Sport England. The officer told the Committee that the Council knew that Sport England would object to using that venue on the basis that the existing provision would be lost, because it had tested that as a planning authority.
39. A Member spoke in support of the objectors. He summarised the concerns of the previous meetings. He said the height of the clubhouse would impact significantly on the neighbouring properties and the access is unacceptable. He said the sequential test did not address the concerns of the residents and suitable sites had been rejected based on the assumption that they were unavailable or would impact on existing sporting facilities.
40. A second Member also said assumptions had been made. In particular he questioned the Council’s claim that Sport England would object to siting the facility at the local sports venue as it would mean losing existing facilities.
41. Further Members said their concerns about the access and suitability of this site had not been resolved.
42. Six residents spoke in objection, including Mrs B. They raised concerns that the site was not big enough for current use and that venues in nearby towns with smaller populations had greater capacity. One said that the national sporting association had confirmed that it had not looked at other venues in Coventry or consulted with them. They questioned whether the sequential assessment had been sufficiently thorough and whether it was the best means of finding the most suitable site.
43. Residents also reiterated their original objections on the basis of the impact on them, concerns about the safety of the junction, and whether the parking is adequate. However, Mrs B says that as the objectors were not told in advance that the meeting would be hearing all issues afresh, their speeches did not address all the issues raised at the earlier meetings.
44. The Council’s officers confirmed they had scrutinised the sequential assessment and were satisfied the application had met the test. Officers also confirmed that Sport England’s standing advice is that it will object to proposals that involve losing existing provision. The officer also said the Council has had discussions with Sport England and it would be minded to object to any proposals where existing sporting facilities were lost. The officer said this meant that Sport England had confirmed they would object.
45. The Highways Authority confirmed that it had properly assessed the highway safety aspects. It acknowledged that the access is single track but the width is adequate at a low speed and with a relatively low number of vehicles. The conditions limiting evening usage and that the plan for a one-way system with the car park is sufficient to alleviate concerns. It had no objections to the proposal. The Council’s planning officers also confirmed that the access met design standards.
46. The officers told the committee, the site was served by six local bus services. Mrs B says that only two of these have stops close enough to the site, but by that stage, the residents could not correct the officers.
47. The planning committee voted to grant planning permission.
48. Mrs B complained to the Council and to the Ombudsman. She said that as well as the planning issues, she suspected that Members were put under pressure by the local political party and feared deselection if they voted against the application. Mrs B has also sent me information from Sport England saying it had not sent the Council any correspondence about the alternative site; and correspondence from the Fire Service about how it assessed the emergency access.

Analysis

That the Council failed to tell residents it would hear the planning application afresh in December 2019

49. I agree the Council should have made clear to all parties that it was considering the application afresh at the final meeting beforehand. Failure to do so was fault by the Council. Mrs B says the Council’s failing here meant that objectors did not include all the issues they had raised at earlier meetings, and so the new committee members did not have all the facts. However, Mrs B was able to speak at the meeting and set out her concerns alongside other speakers. In addition, it is clear the Council properly considered these before it decided to grant planning permission. Even if the Council had made clear this was a fresh consideration of the application, I cannot see that the objectors’ presentations would have been so different as to alter the outcome of the meeting. However, the impact on Mrs B is limited to her uncertainty that the objectors might have put their case better, and her frustration.

That the Council did not ensure that the same members were present throughout the entire debate

50. The Council’s rules say that a member must be present throughout the whole debate in order to vote on an application. By considering the application afresh, the Council ensured members heard all the issues and this was not a breach of the rules as such. The fact that the application was deferred and then decided by different Members should not affect it the outcome or impact on Mrs B. Indeed, it would have been risky not to hear the application afresh as it had been nearly six months since the first committee meeting about this and Members may not have been able to recall the various issues.

That the Council did not properly consider the planning application before granting permission and did not consider the full range of the objections made.

51. I understand the concerns of Mrs B and other residents, however, the Council properly considered the planning application before granting permission. Mrs B is concerned that the Council is deciding its own application, and a Member also raised this at the committee meetings. However, the Council is acting within the law when it decides an application it has made, provided that the decision-makers are not also responsible for managing the land or buildings. The Council’s planning committee will not be responsible for running the leisure facilities and so the Council is acting in accordance with the law and regulations.
52. Having considered the planning documents and listened to all three planning committee meetings, it is clear the Council properly scrutinised the sequential assessment. It ensured that all sites suggested by Members and residents were subject to the assessment, and that the applicant gave good reasons why alternative sites were not suitable or deliverable.
53. I have given careful consideration to how the Council dealt with the alternative venue suggested and what it told the committee about Sport England’s views. The committee members questioned whether the officers could say that Sport England would object to siting this facility at a local venue because it would mean losing existing provision. Officers explained that this is Sport England’s standing advice and also accords with their experience of consultation on other development. This is in line with Sport England’s published planning guidance which says that existing sport and recreational provision should be protected.
54. I have considered whether the Council led the committee to believe that it had consulted Sport England about that specific site. In my view, the officer is clearly referring to standing advice when he says Sport England would object. When the officer later says the Council had discussions with Sport England who are minded to object to any proposals where existing sporting provision is lost, it is more ambiguous. However, taking the officer’s verbal responses and the committee report together, I do not consider this amounts to misleading the committee members, or fault by the Council.
55. I have checked the bus services near the site. The Council and objectors may have different views as to what constitutes a local bus stop. The Council says in the committee report that some stops are nearer than others. The fact remains that two bus services are very frequent throughout the day and evening. And so even if the other bus services are not so close to the site, the frequency of these two nearest bus services, means that the other services are less relevant and correcting this information is not likely to have altered the outcome.
56. Mrs B says that the Member that raised concerns about the emergency site access being locked was not at the final meeting to report back on this. The Fire Service itself did not raise concerns about this and has confirmed from its own onsite assessment, that a fire engine can access via the emergency access. Arguably, the Fire Service is best placed to assess the risk here.
57. However, even if the Fire Service did not, at that stage, realise that the gates would be locked, the Council is right that it cannot refuse planning permission based on someone’s future behaviour. Any difficulties with a key holder access can be resolved by the Fire Service.
58. The Council properly considered access to the site, road safety and parking. It asked the Highways Authority to revisit its assessment to ensure it was satisfied with these aspects. The Authority confirmed the highways issues were suitably addressed and also that it made this assessment not only from applicant’s information but also its own assessment. Members and officers were able to gain a good understanding of the issues from the site visits, plans and photographs. The debates across the three meetings show the committee fully considered these aspects before granting planning permission.
59. There was no fault in how the Council considered the impact of the use of the site and the clubhouse on the residents. The plans were clear; Members and officers visited the site; and the Council set out its assessment of the impact in terms of outlook, light, and privacy before granting planning permission with conditions to protect the residents’ amenity. The Council properly considered all aspects of the application.

Political pressure on members

60. Mrs B raised concerns that members feared they would be deselected if they voted against the application. In one case a member was deselected; another only voted against the application once they had stood down; and another privately raised fears with residents of deselection should they vote against.
61. There should be no political dimension to a planning decision. We would expect the Council to investigate it through its member code of conduct procedures. Mrs B should make this complaint to the Council. If the Council’s monitoring officer finds there has been an impact on the planning decision, or if Mrs B is dissatisfied with the Council’s investigation of this, then we may consider a fresh complaint from her.

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Agreed remedy

62. Although I do not think the outcome of the planning application would be different, the Council’s failure to be clear in how it would deal with the deferred application has caused Mrs B frustration and uncertainty. To remedy this, the Council has agreed it will within three months of the date of this decision, show the Ombudsman it has reviewed its procedures so it is clear how to proceed when an application is deferred and then heard afresh.

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Final decision

63. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman