Summary: The Ombudsman does not find fault with the Council for discharging a planning condition that involved changes to traffic management and residential access. This is because there is no evidence to show fault in how the decision was made. The Ombudsman does find fault with the Council for poor complaint handling which caused confusing and raised expectations for the complainant. The Council has agreed to apologise to the complainant for its poor complaint handling.

The complaint

1. Ms A complains the Council improperly decided to discharge a planning condition for a development after planning permission was granted.
2. Ms A complains the Council did not properly consider information from residents and did not tell residents of the changes to the condition.
3. Ms A complains this has caused a significant impact on traffic and parking in the local area and restricts residents’ access to their properties and carrying out daily tasks.

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The Ombudsman’s role and powers

4. 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)
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 Ms A’s complaint to the Council and information provided by the Council. I also considered comments from Ms A and the Council on my draft decision.

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What I found

Discharge of planning conditions

7. Planning Practice Guidance (PPG) advises that Local Planning Authorities should try to limit the use of conditions requiring the approval of further matters after full planning permission has been granted. Where approved, it will need to aid with the efficient and effective delivery of development. The guidance advises that where it is justified, Local Planning Authorities should impose conditions requiring submission and approval of further details of the development that are not fully described in the application.

What happened

The decision to discharge the planning condition

8. Ms A is a resident on a housing estate. The housing estate consists of houses and flats. The estate at first had on street parking and a car park accessible to residents.
9. In 2018, the Council granted planning permission for development of land at the bottom of the housing estate, which would allow for further flats to be built.
10. In the planning permission, it included a condition for the works and any impact on parking.
11. In 2020, and during development, the Council allowed a change to the condition and later discharged it following confirmation from the developer and the Council highways department the condition had been met.
12. Ms A complains the Council should not have allowed changes to the condition and should not have discharged the condition. Ms A says the Council did not consider what impact discharging the condition would have on residents, and the changes caused by discharging the condition have significantly impacted residents.
13. Ms A says that by discharging the condition, there have been changes to the access to properties by residents has been greatly reduced. This includes parking limits which means residents can no longer park near their properties, including during weekends. The car park that residents previously accessed was removed as part of the development, so they cannot use this to park.
14. Ms A complained to the Council about the changes to the condition after it was discharged. Ms A felt the Council had misled residents about the changes and they should have been consulted on the changes when the condition was discharged.
15. In its complaint response, the Council said that as the change to the condition was not a planning application, it had no duty to consult with residents. The changes to the condition were reviewed by the Planning department and the Highways Authority before the condition was discharged.

Analysis

16. The report from the Council’s planning committee in 2018 stated that a planning condition would need to be included to manage construction and associated traffic. The Council changed this when it appointed a contractor appointed and discharged the condition. The changes made were considered and agreed by the Planning department and Highways Authority before discharging the condition.
17. The original condition in the planning permission says, “No development shall commence until details of the following highways works (including drawings and specifications) have been submitted to and approved in writing by the Local Planning Authority.” This condition clearly sets out that plans for the works would be submitted to the Council before work starting.
18. The discharged condition reads “Prior to the commencement of above ground works, details of the following highways works (including drawings and specifications) shall be submitted to and approved in writing by the Local Planning Authority.” This shows that despite the change in the condition from “no development” to “prior to above ground works”, the overall reason for the condition remains. The contractor would have had to provide plans for the works which were subject to consideration by the Council.
19. In its response to my enquiries, the Council said “The Condition was amended to allow the applicant more flexibility, but does not change the scope or detail of the consented Highways Works.” The Council also said the initial condition was set out before the Council had appointed a contractor was appointed. It did not know the full extent of works needed and therefore the condition was changed once a contractor had been approved and was able to provide plans for the works.
20. I cannot question whether the Council’s decision to approve the change is right or wrong. I can only assess whether it considered all the information and carried out its duty.
21. The Council did not need to consult residents, and the plans for discharging the condition were considered by the appropriate department. The Council considered all relevant considerations, did not consider any irrelevant considerations, and its conclusions were rational. I cannot consider the merits of the decision it made. I am therefore of the view the Council is not at faut in how it decided to make changes and discharge the condition.

The Council’s handling of Ms X’s complaint.

22. Ms A first complained to the Council about its decision to discharge the condition in July 2020. The Council’s response did not satisfy Ms A asked to escalate to a stage two investigation in July 2020.
23. The Council also told Ms A the Council had logged her complaint as two separate complaints, one being led by the Council and one being led by its arms-length housing management. The Council said it would answer in a single response led by the Council, and thus the complaint with the housing management agency would be withdrawn.
24. In its response in August 2020, the Council said it could not carry out a stage two investigation because parts of the complaint were older than 12 months. However, it did provide another response to the stage one response.
25. Ms A remained unsatisfied with the Council response and raised further points about the discharge of the condition, however it is not clear if this was at stage two. The Council responded to Ms A and told her it would look further into the points she was raising.
26. In Sept 2020, the Council wrote to Ms A after consulting an independent adjudicator. It said it would not be considering the parts of her complaint about the original planning application as it had taken place longer than 12 months ago. The Council said the decision to change and discharge the planning condition was a matter for the Council officers’ professional judgement, and the Council would not be considering the complaint further.
27. Ms A questioned why the Council investigation did not include a response from the arms-length housing agency, as previously advised by the Council. The Council advised Ms A that she could take her complaint to the Ombudsman, who could enquire to the housing agency if needed.

Analysis

28. I have reviewed the complaints correspondence between Ms A and the Council. Ms A’s complaint was at first denied a stage two investigation, but the Council then appears to have conducted further enquiries. I think this was a reasonable course of action for the Council to take as Ms A further explained her concerns.
29. However, the Council originally told Ms A that a response from the Council would be given which would include a response from the housing agency as part of the investigation led by the Council. The Council did not provide Ms A with a response that had consulted with the housing agency. It later told her that if she wished to see its input, she could bring her complaint to the Ombudsman who would ask for it.
30. The Ombudsman cannot consider complaints about the Council where it acts as a social landlord. These complaints are better suited for the Housing Ombudsman. However, the Ombudsman can consider poor complaint handling during an investigation that is already ongoing.
31. It is my view the Council set out the parameters for its investigation, which included joint work with the housing agency. It then failed to include this during its investigation and unnecessarily told Ms A to escalate her complaint to the Ombudsman to obtain this information.
32. This was poor complaint handling by the Council. If it could not include the housing agency in its investigation it should have made this clear to Ms A, and signpost her back to them or to the Housing Ombudsman.
33. This was fault by the Council, resulting in confusion and raised expectations for Ms A. This is not information the Ombudsman would have sought, and Ms A was told it would be included in her first complaint response.

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Agreed action

34. The Council has agreed that within 4 weeks of my decision, it will apologise to Ms A for its poor complaint handling.

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Final decision

35. I have now completed my investigation. I do not find fault with the Council for discharging the planning condition. This is because I have not seen any evidence of fault in how the Council made the decision. I do find fault with the Council for poor complaint handling.

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Parts of the complaint that I did not investigate

36. I have not investigated the planning application in which the Council agreed the original planning condition. This is because the application was approved more than 12 months ago.
37. I have not considered the parts of Ms A’s complaint about the Council as a social landlord. This is because this would better considered by the Housing Ombudsman.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman