Summary: There was no fault by the Council in a complaint which alleged fault with its decision to approve a neighbour’s planning application for an extension and other alterations to the property.

The complaint

1. The complainants, whom I refer to here as Mr and Mrs X, are dissatisfied with the Council’s decision to approve a neighbour’s planning application for an extension and other alterations to the property. Mr X says:
• The consultation process was unfair because the Council did not publicise the application through placement of a site notice. Mr X also says the planning case officer misled him about the deadline for councillors to ‘call-in’ or refer the application to the planning committee.
• The planning officer’s report contained errors and contradictions and did not properly assess relevant planning considerations.
• The Council unreasonably concluded the grounds for allowing development in the Green Belt outweighed those against development.

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The Ombudsman’s role and powers

2. 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’. 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)
3. 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

4. I examined the complaint and background information provided by Mr and Mrs X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr and Mrs X and the Council. I considered Mr X’s comments on it.

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What I found

Background

5. The Council received a planning application which proposed a part two storey part single storey side and rear extension with a first floor terrace, steps and balustrade, new front porch canopy, and glass balustrades to first floor front windows. There would also be a detached car port/store, alterations to windows, new boundary treatment and new access.
6. Local planning authorities have discretion about how they inform communities about planning applications. The statutory requirement for the type of planning application in this case is through a site notice or neighbour notification letter.
7. The Council publicised the application through a newspaper advertisement as well as letters to surrounding properties. It did not place a site notice for health reasons during one of the Covid19 lockdown periods.
8. On the deadline day for receipt of representations from the public, Mr X and another party telephoned the case officer. Mr X says the case officer did not explain the call-in procedure for referrals to the planning committee properly. He says the officer told them the ward councillors’ call-in period had been reduced to 21 days from the date a planning application is validated but the officer omitted to say the reduced time only applied to new applications submitted after 26 May 2020.
9. The application was determined through delegated powers. The planning case officer summarised the objections the Council received from Mr X and others.
10. For the purposes of this investigation it is not necessary to set out in great detail the facts of the case. I do not intend to set out Mr X’s objections in this statement for the reasons of brevity and anonymity. They are of course known to Mr X and the Council.
11. I note the delegated report included information on the site, the proposal, the relevant constraints, the consultation process that had been conducted, the representations that had been received and an assessment of the planning issues.

Analysis

The consultation process was unfair because the Council did not publicise the application through placement of a site notice. Mr X also says the planning case officer misled him about the deadline for councillors to ‘call-in’ or refer the application to the planning committee

12. I am satisfied the Council met the statutory requirement for publicising the planning application. It had the choice of either placing a site notice or sending neighbour notification letters. In this case it wrote to surrounding properties and used a press advert.
13. The Council was not statutorily required to place a site notice and so I do not find the consultation process was unfair.
14. As to Mr X’s claim he was misled by the case officer about the deadline for councillors to call-in the application to the planning committee, the Council’s response was that all councillors were advised of changes to its constitution. It said there had been ample time for ward councillors to call in the application and for Mr X and others to approach or lobby councillors to do so. It said the case officer was attempting to assist neighbours by discussing matters with them. It did not consider Mr X was disadvantaged by anything said during that telephone conversation.
15. I do not have an independent recording of the telephone conversation. So I cannot now establish the material facts of what was said during the conversation. I cannot therefore make a finding on this matter.

The planning officer’s report contained errors and contradictions and did not properly assess relevant planning considerations & The Council unreasonably concluded the grounds for allowing development in the Green Belt outweighed those against development

16. Mr X laid out a detailed critique of the planning officer’s report in his letter of complaint to the Council. Mr X pointed out there had not been a site visit contrary to a statement made in the report that there had been one. Mr X pointed out the case officer said there was limited weight given to the Council’s emerging local plan policies in one section but then said significant weight should be given to the same emerging plan policies in another section. Mr X then set out detailed reasons why the planning officer’s analysis was unsafe.
17. Mr X said there were errors in the planning application documents and the application should have been considered as inappropriate development in the Green Belt. Mr X did not consider there were special circumstances sufficient to overcome the presumption against such development in the Green Belt.
18. The Council accepted the report should not have stated there had been a site visit. It said planning officers work from a template which has text referring to a site visit. The case officer should have removed the reference to the site visit when drafting the report. However, it said there were numerous photographs available to the case officer as well as details of another, recent planning application. It said that evidence was sufficient for the officer to assess the application.
19. On Mr X’s detailed criticisms, the Council declined to offer a line and line response. It said there is an established principle that planning reports are not subjected to the same critical explanation or examination that might be appropriate for the interpretation of a statute. It said the requirement is that there should be a fair reading of the report as a whole. It said Mr X’s points sought to argue points of planning judgement and it was not appropriate to address them through the complaints process.
20. The reason for the Council’s response to Mr X’s complaint is judicial precedent set in the case of (R (Zurich Assurance Limited Trading as Threadneedle Property Investments v North Lincolnshire Council [2012] EWHC 3708 (Admin)).
21. There, the court held that when challenged, a report that has been prepared by an officer is not to be subjected to the same critical explanation or examination that might be appropriate of a statute. The court said what is required is a fair reading of the report as a whole.
22. I recognise Mr X wanted the Council to respond to all the criticisms he made of the officer’s report. He now wishes the same from this investigation. However, I must disappoint him.
23. Our role is not to provide answers to each and every criticism a complainant may have about a council. Instead it is to consider allegations about what the authority has done wrong and whether the alleged fault has caused a significant injustice to the complainant.
24. Planning authorities are required to have regard to all material considerations. What amounts to a material consideration is a question of law. That is for the courts to adjudicate upon. The weight to be given to such material considerations – and the part any particular material consideration should play in a decision-making process – is a question of judgement and is a matter entirely for those whom Parliament has assigned the task of decision-making.
25. So, for instance, when Mr X says the officer contradicted himself when describing the weight to be afforded the Council’s emerging local plan policies, I accept there was a contradiction but I do not consider it is significant. What was significant was that the officer was aware of local plan policies that applied to the application and the need to place weight on the policies. The case officer’s analysis explained how he placed weight on the policies.
26. I have read the planning report as a whole. While, I note errors in the report identified by Mr X, I am satisfied the report set out the material considerations that applied to the application and provided reasoned justification for the judgement reached by the officer. I am satisfied the Council took account of all material considerations including the proposal’s impact on Mr X’s amenity and its impact on the Green Belt. I do not find fault by the Council in this matter.

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Final decision

27. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman