The Ombudsman's final decision:
Summary: Mr X complains on behalf of a group of residents about the way the Council decided a planning application. He says if the application for planning permission had been handled properly, it would not have been granted. He says the granted application will mean some residents are overlooked and there will be significant traffic problems. The Ombudsman does not find the Council at fault.
- The complainant, who I refer to here as Mr X, complains on behalf of a group of 16 residents, including himself, about the way the Council dealt with a planning application. He complains that the Council:
- failed to require accurate plans from the applicant;
- amended the planning application;
- failed to reconsult neighbours on significant amendments;
- failed to give adequate reasons for changing its mind about approving the application; and
- should not have decided the application under its emergency arrangements.
The Ombudsman’s role and powers
- 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)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
How I considered this complaint
- Mr X complains on behalf of himself and 15 other residents. I have seen signed consent from each of these 15 residents. I am therefore satisfied that Mr X is an appropriate person to represent this complaint on their behalf.
- I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about the complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
- I considered the relevant legislation, statutory guidance, and policies, set out below.
What I found
What should have happened
- The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise. 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.
- It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
- A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
- Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission. A senior planning officer will then decide most applications, but some go to the council’s planning committee for councillors to decide the application.
- The Ombudsman will consider whether the decision-makers had enough information in front of them to make an informed decision.
The Council’s emergency policy on deciding planning applications
- When the first lockdown happened in March 2020 due to COVID-19, the government issued advice to councils on how to continue with council work while under lockdown. The Council considered this advice and agreed a policy on how it would continue to make decisions. This included deciding planning applications.
- The Council’s policy was that authority would be delegated to the Chief Executive to determine planning applications that would otherwise have been decided at planning committee.
- In July 2019, an applicant submitted a planning application to the Council to build a three-storey building. The Council notified local residents about the application. The Council received objections from some residents.
- In September, the applicant sent the Council amended drawings, lowering the proposed height to two storeys. The Council notified residents of the amended proposal. The Council received further objections.
- The Case Officer submitted his report in April. The report noted that after residents raised concerns about the proposed height of the building, the applicant reduced the height to two storeys. The report summarised and addressed the 39 objections received from residents. Residents objected to the proposed one-way traffic scheme, and preferred a two-way traffic scheme.
- The report noted that the Council’s highways service had been consulted. The highways service said a two-way traffic scheme was required. In the report, the Case Officer addressed the objections. He recommended the proposal be approved.
- The Chief Executive approved the planning application in late April, under the Council’s emergency policy.
- Mr X complained to the Council about the way it made its decision to approve the application.
- The Council replied to Mr X’s complaint as follows:
- The Council said it was required to make decisions on planning applications in line with timescales set out by government, and had no discretion to postpone making this decision until the planning committee returned. It said that at the time the decision was made (April 2020), it did not know when the planning committee would be held again.
- The Council said it had agreed to delegate authority to the Chief Executive to make planning decisions normally reserved for the planning committee. It said this approach was in line with government guidance.
- The Council said there were no significant amendments or revisions to the application that required any further notification to residents. It said the Case Officer had considered all concerns and objections.
- The Council said it did not consider it necessary to reconsult residents about the revised environmental statement because there were only minor amendments.
- The Council said the applicant’s application for non-material amendments was because the applicant noticed that the Council’s decision notice incorrectly referred to revised drawing numbers. It said this had not impacted the decision-making process.
- Mr X asked that his complaint was dealt with at stage two of the Council’s complaints procedure.
- The Council replied as follows:
- The Council agreed that the Case Officer told Mr X that the original application would not be supported in its original form. It said that the Case Officer recommended approval after a detailed assessment of the application and revisions to the application, including a reduction in height and further assessment of the highways’ implications.
- The Council said it was completely acceptable for a scheme to be revised during the life of a planning application, and for schemes to be revised to allow the Council to see them more favourably.
- The Council said its highways service raised concerns about the proposed one-way traffic scheme. It said to mitigate this, conditions were recommended to resolve to those concerns. It said this did not mean the Director of Planning put forward the revised scheme.
- The Council said the Case Officer recommended approval after a site visit and following revisions to the proposed application. It said the Chief Executive considered the Case Officer’s report and late representations made by residents. It said the application had been assessed using the correct heights.
- The Council said there was no reason to delay making a decision on the application because all the information was there for the decision-maker. Also, it said the government had encouraged councils to consider delegating decisions where appropriate.
- Mr X then complained to the Ombudsman.
Failure to require accurate plans
- Mr X complains that the Council failed to require accurate plans from the applicant (part a of the complaint). He says the applicant’s application for non-material amendments shows that their plans were not accurate.
- I do not agree. The applicant noticed that the Council had used the wrong drawing numbers in its decision notice. The non-material amendment rectified this.
- I find that the Case Officer assessed the application using the correct heights and drawings, and the Chief Executive made their decision using the correct information.
- There was a minor administrative error on the decision notice which was corrected in an appropriate way. I do not find this is fault. Nor do I find it shows the plans were inaccurate. The Council is satisfied that this was not a material issue and would not have impacted on the final decision. I agree.
Amendments to the application
- Mr X complains that the Council amended the planning application (part b of the complaint). He says the Director of Planning personally intervened and deleted the applicant’s proposed one-way traffic scheme and substituted a two-way scheme. He says this was a significant amendment that it was not her role to make. He says that the application decided was therefore not the one the applicant submitted.
- I do not agree. The Council has been clear to Mr X throughout that the change to the proposed traffic scheme was after consultation with its highways service. The highways service assessed that the original proposal was a risk to residents. The Council proposed an amendment to reduce that risk, and the applicant agreed to it. I find this is appropriate.
- Further, the Council received objections from residents about the original plans for a one-way traffic scheme. Some residents said they preferred the two-way scheme that the highways service proposed.
- For these reasons, I do not find fault here.
Failure to reconsult neighbours
- Mr X complains that the Council failed to reconsult neighbours on significant amendments (part c of the complaint). He says the Council should have reconsulted local residents, allowing them to comment on the changes to the proposed traffic scheme (from one-way to two-way) and the changes to the environmental statement.
- Regarding the changes to the proposed traffic scheme, Mr X believes the amendments warranted reconsultation with residents. The Council did not believe that change met the threshold for reconsultation. I agree with the Council.
- As I have said above, some residents told the Council they actively preferred the proposed two-way traffic scheme to the originally proposed one-way scheme. For this reason, there would be no need to reconsult residents.
- Also, the Council is not legally required to further notify or reconsult residents on changes made to the details of highways works during the live planning process. It is a discretionary matter for the Council once it has carried out the initial statutory neighbour notifications process.
- Regarding amendments to the environmental statement, the Council says the amendments were very minor so there was no requirement to reconsult with residents. I agree.
- For these reasons, I do not find fault with the Council for not reconsulting residents about these two matters. I do not agree with Mr X that they were significant amendments.
- Mr X says the environmental statement was not available on the Council’s planning portal at the time of the original consultation. He says the Council says it was there all along.
- I do not find fault here. Neighbours and local residents are consulted to give them an opportunity to comment on, and object to, the proposed application. In this case, the Council received a lot of objections throughout the life of this planning application, and considered those objections as it should have. I do not consider lack of access to an environmental statement causes injustice to an objector.
- In this case, the Council considered all the objections and decided to grant planning permission. I find no fault in the way the Council granted planning permission.
- Mr X complains that the Chief Executive should not have considered procedural issues when deciding the planning application.
- I find no fault in the way the Council decided the planning application. Further, I find that the Council reconsulted residents on significant amendments (the reduction in height), as it should have.
Inadequate reasons for the Council’s change of mind
- Mr X says the Case Officer told him the Council was going to refuse the application, but then decided to approve it. He complains that the Council failed to give adequate reasons for changing its mind about approving the application (part d of the complaint).
- I find that the Case Officer told Mr X that the Council would not approve the application in its original form. The proposal was then revised, changes were made, and the Council decided to approve the application. The Council is entitled to do this, and does not have to explain its decision. However, I find that the Council explained to Mr X its reasons for its change of mind in its complaint response.
- In its complaint response, the Council said it is completely acceptable for a scheme to be revised during the life of a planning application, and for schemes to be revised so they are looked on more favourably. I agree with the Council.
- I therefore find no fault here.
Deciding the application under emergency powers
- Mr X complains that the Council should not have decided the application under its emergency arrangements (part e of the complaint). He says the arrangements were only for a small number of decisions, and the Council did not make clear which decisions would be dealt with under its emergency powers.
- I do not agree. The Council’s policy, referred to above, is clear that authority to make decisions usually made by committees was delegated to the Chief Executive. I do not find that the policy says anything about it only being applicable for a small number of decisions. Further, I find that the policy is clear about which decisions will be delegated to the Chief Executive.
- The Chief Executive was entitled to make this decision under the Council’s policy, and was in line with government guidance. For this reason, I find no fault.
- Further, if the Council had delayed making a decision on this application, the Ombudsman would likely have found the Council at fault. I find the Council acted entirely appropriately.
- I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no fault.
Investigator's decision on behalf of the Ombudsman