Summary: Mr X, Ms Y and Ms Z complain about the Council’s decision to approve its own planning application for a development close to their homes. We will not investigate this complaint because we are unlikely to find fault in the Council’s actions and further investigation is unlikely to lead to a different outcome.

The complaint

1. The complainants, who I will refer to as Mr X, Ms Y and Ms Z, say the Council pre-determined its own planning application which goes against many local and national policies.
2. They say the planning committee had already made up its mind that a social housing need outweighed all other planning considerations.
3. The complainants believe that, as the Council was the applicant in the case, the application should have been determined by an independent committee separate from the Council.
4. They also complain the Council:
• carried out a bat survey at the wrong time of year
• gave a false impression on the ratio of homes to parking spaces
• manipulated density by stating the previously defined suburban space to a town centre or urban space
• failed to ensure groundwater must be monitored over 12 months; and
• failed to publish the case officer report until the day before the planning committee meeting

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The Ombudsman’s role and powers

5. 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
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome.

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

6. 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)

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How I considered this complaint

7. I considered:
• information provided by the complainants
• the case officer report and the planning decision
• the Committee meeting minutes
• comments made by the complainants on the draft version of this decision
8. I also watched the recording of the online planning committee meeting in full.

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What I found

Background

9. Local Planning Authorities must consider each planning application it receives on its own merits and decide it in line with their local planning policies unless material considerations suggest otherwise. Material considerations concern the use and development of land in the public interest and include issues such as overlooking, traffic generation and noise.
10. 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. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. The National Planning Policy Framework (NPPF) is a material consideration in deciding planning applications. It sets out a “presumption in favour of sustainable development”. The NPPF says this presumption means, when deciding planning applications:

“where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting planning permission unless…any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in [the NPPF] taken as a whole.”

12. A council planning officer will normally visit the application site and write a report assessing the proposed development. The report will refer to relevant planning policies and the planning history of the site; summarise peoples’ comments; and consider the main planning issues for deciding the application. The assessment often involves the planning officer in balancing and weighing the planning issues and judging the merits of the proposed development. The report usually ends with a recommendation to grant or refuse planning permission.
13. Some applications go to the council’s planning committee for councillors to decide the application. The Committee Members may disagree with the case officer’s recommendation because it is for the decision maker to decide the weight given to any material consideration when deciding a planning application.

My findings

The planning application

14. Following a public consultation which is the subject of a separate complaint to the Ombudsman, the Council put in a planning application. This was to demolish 29 garages and provide 46 new homes with associated bicycle storage, parking spaces and public space.
15. The Council publicised the application. It attracted hundreds of objections and a petition with 600 signatures.
16. The Case Officer prepared a lengthily and detailed report on the scheme. The report includes a summary of all the objections to the application, including those from Mr X, Ms Y and Ms Z. It also referenced the petition.
17. The Case Officer notes the local policies. The report explains why the proposed development is either in line with those policies, or why, in the Officer’s opinion, the benefits of the proposal outweigh the possible negative impact.
18. The Council’s planning committee considered the application at an online meeting. Mr X and Ms Y spoke at the meeting.
19. The complainants say the conduct of the Committee Members shows the Council had ‘closed minds’ and had decided they would approve the application before the meeting took plan.
20. Clearly expressing an intention to vote in a particular way before a meeting (predetermination) is different from when a councillor is willing to listen to all the considerations presented at the committee before deciding on how to vote (predisposition).
21. I have watched the Committee meeting in full. It was made clear the application was being made by the Council. Mr X & Ms Y spoke at the meeting, as did the Council’s agent for the application. It appears the Councillors were predisposed in favour of the application. I have not seen evidence of ‘closed minds’. The Councillors asked questions on various points including bats, loss of green space and trees, housing density and garages.
22. The application was debated for more than 2 hours. The local opposition to the scheme was noted. Following the debate, the Councillors voted to grant conditional planning permission. The conditions include:
• no development before a contamination report being submitted and approved
• no development before a bat survey carried out between May and September and proposals for bat boxes being submitted and approved
• no development before a construction management scheme being submitted and approved
23. I understand the complainants believe the Council should not have determined its own planning application. And the decision should have been made by an independent body separate from the Council.
24. However, there is no requirement for this. It is clear from the report and the Committee meeting that the Council is the applicant.

Delay in publication of the report

25. Mr X, Ms Y & Ms Z also complain the Council failed to publish the Case Officer report until the day before the Committee meeting.
26. The Council apologised for a technical issue which prevented the report from appearing on the planning pages of its website until two days before the meeting. However, it confirmed the report was available on the Committee pages of the website as part of the agenda for the Planning Committee earlier than this.
27. The Council says it decided to go ahead and consider the application on the advertised date because the meeting had been well publicised, and many people were expecting it.
28. The statutory requirement is for the report to be made public. While it is regrettable the report was not available on the planning application page, it was nevertheless published on the Council’s website. I do not consider this to be fault. Nor do I consider Mr X, Ms Y or Ms Z were caused a significant injustice because of this.

Complaint procedure

29. The complainants say there may have been many residents who believe they have complained but the Council failed to record them. They want the Council to publish an apology for this in the local paper.
30. However, we have not received any evidence that the Council had failed to respond to other people’s complaints. Nor do I consider this has caused the complainants any personal injustice. It is for other people to raise complaints with the Council if they are not satisfied with the response or lack of response.
31. The complainants also say the Council does not log complaints, issue complaint references or holding letters. And responses have to be chased.
32. The Council wrote to the complainants about queries they had raised about the planning committee. There appear to have been multiple emails sent to different Officers and Councillors with concerns about the meeting. A letter from a senior officer makes the Council’s position clear.
33. We expect councils to respond to complaints according to its complaints’ procedure. However, we will investigate this part of the complaint because we do not consider the complainants have suffered a significant personal injustice because of possible failings in the complaints’ procedure alone.

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Final decision

34. I will not investigate this complaint because:
• it is unlikely we would find fault in the process leading to the Council’s decision to approve the planning application
• any injustice suffered because of failings in the complaints’ procedure is not significant enough to justify our involvement, and
• it is unlikely further investigation will lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman