The Ombudsman's final decision:
Summary: Mrs X complains about the way the Council has handled a planning application regarding the second phase of a housing development. The Ombudsman has found no fault by the Council.
- Mrs X complains about the way the Council has handled a planning application regarding the second phase of a housing development. Mrs X says the Council unlawfully dealt with the application as a section 73 application to vary a condition of a previously approved reserved matter. Mrs X says this process should not have been used and a full planning application was required as there were substantive changes in the description of the development.
- Mrs X also complains that the Council did not publicise the application properly, unreasonably relied on the original environmental impact assessments from 2013 and did not advise residents correctly about the housing tenure mix until the planning committee meeting.
- Mrs X believes but for these faults the Council may have reached a different decision.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- As part of this investigation, I considered the complaint and information provided by Mrs X. I discussed the complaint with Mrs X over the telephone. I made enquiries to the Council and considered the responses received.
- I sent Mrs X and the Council a copy of my draft decision and invited their comments. I considered the comments I received before reaching a final decision.
What I found
Planning legislation and guidance
- The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is needed for any development or change of use of land and may be granted by a Local Planning Authority.
- It is for the decision maker to decide the weight to give any material consideration in deciding a planning application. The Ombudsman will not come to a view on the merits of the planning application. Local opposition or support for a proposal is not itself a ground for refusing or granting planning permission.
Applications to vary or remove conditions (section 73 applications)
- Section 73 of the Town and Country Planning Act (1990) allows planning applicants the option to submit applications seeking non-material or minor-material amendments once planning permission has been granted.
- There is no statutory definition of a non-material or minor-material amendment. However, the government’s ‘Planning Practice Guidance: Flexible Options for Planning Permissions’ says a minor-material amendment “… is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved”.
- When a council receives a planning application, it must tell the public. How it does this will depend on the nature of the application.
- For major development applications, councils must publicise the application by:
- a local newspaper advertisement; and either
- a site notice; or
- serving notice on adjoining owners or occupiers
- What happened
- In 2014 outline planning consent was granted for a large development made up of nearly 330 residential homes. In 2016 a reserved matters application was approved for 149 dwellings and the principle of the development was established. This application was made by Developer A.
- On 10 February 2020 the Council received a new application to vary the previous approval of reserved matters. This application was made by Developer C for the same number of dwellings (149) of which 35 would be completed by Developer D. The application proposed changes to the types of houses that would be built, increasing the range of smaller houses with a mix of four- and five-bedroom properties.
- The Council carried out consultation on the application and sent a notification letter to neighbours on 18 February 2020. On the same day, a local newspaper published an article about the application. The Council publicised the application in a press advert on 27 February 2020.
- On 12 June 2020 the Council received an amendment notice from Developer C with revised plans and information relating to the housing mix, elevational changes, and boundary treatments. The Council sent an updated notification letter to the neighbours.
- Following the amendments, the Council says it displayed four site notices at the development site on 18 June 2020.
- On 25 June 2020 the Council contacted Developer A and asked it to forward the neighbour notification letter to any prospective buyers, individuals within the process of buying or making enquiries about properties for sale on the site.
- Mrs X raised objections to the application on 9 July 2020. She said, “The application from [Developer C] is inaccurate. The total number of houses proposed shows 119 house styles but only 114 are referenced. A request to the planning department has not corrected this inaccuracy. The detail in the first application did not match the newspaper report or what was reported on [Developer C’s] website and there was a lack of transparency in the consultation process as a result”.
- Further amendments to the application were received from Developer C on 27 July 2020. Three days later the Council sent updated notification letters to the neighbours.
- On 26 August 2020 the application was considered and approved by the planning committee.
The case officer’s report
- The report:
- described the amended proposals and stated that the site already had planning approval for a residential development and change to the house types were not considered to fundamentally change the impacts of the development to existing infrastructure over and beyond that already approved;
- explained that this section 73 application had followed the same principles of the indicative outline planning application proposals and previously reserved matters application;
- set out relevant national and local planning policies;
- noted the Council had received objections from 66 households.
- The Council explained that it had carried out consultations with regards to highways and transport; landscape and visuals; flood risk management; strategic housing; crime prevention; health and safety and utilities. It is noted that no objections were received.
- The report listed the objections officers had received from neighbours. I have listed those relevant to Mrs X’s complaint:
- the development is significantly different to the already approved scheme;
- the proposal is beyond the scope of a section 73 variation application and represents a departure for the local plan and is unlawful;
- shifting demographics of the proposed development would put significant pressure on existing infrastructure, such as the transport network, schools, and doctor’s surgeries;
- the proposed development would result in an increased level of traffic, the vehicular access in not suitable and there is not enough parking, which would result in highway safety concerns; and
- lack of consultation.
- The report responded to the objections, and I have noted those relevant to Mrs X’s complaint. The report said:
- A section 73 application can be made in respect of a development where planning permission has previously been granted subject to conditions and the proposal seeks to develop the site otherwise than in accordance with or one more of those conditions; The proposed development would not be out with the description of the previous reserved matters approval and would provide the same number of 149 dwellings on the site.
- the Local Panning Authority and the Council’s Chief solicitor consider the section 73 application as submitted to be a lawful application;
- the application has been processed in the same manner as any other major planning application;
- the proposal would not increase the number of dwellings beyond the existing approved housing scheme and therefore the impact of the proposal on existing infrastructure such as schools and doctor’s surgeries would not be dissimilar from the accepted scheme;
- the proposal includes 79 affordable housing units, comprising 50 shared ownership units and 29 affordable/socially rented units. The principle of increasing provision of affordable housing above the local plan target is an opportunity to significantly contribute to meeting the identified borough wide housing need, including first time buyers and /or those looking to downsize into a smaller home;
- the range, mix and cohesion of housing proposed had been considered by the Strategic Housing Manager and it was acknowledged that car parking for each dwelling had been provided in accordance with planning obligations. The Manager raised no objections to the proposals.
- to address concerns around construction activity and vehicular access, Developer C is required to submit a construction management plan for each phase of the development; and
- through the application process, notice was given through a press advert, the immediate neighbouring residents were notified by letter and site notices were displayed within the wider site.
Minutes of the planning committee meeting
- The planning committee considered the application on 26 August 2020. According to the minutes of the meeting:
- The Council gave an overview of the section 73 planning application and its determination;
- members had been provided with a copy of the planning committee report which had been updated following objections received from neighbours. All issues raised had been considered within the main case officer’s report; and
- the Council discussed in detail a letter it had received from a solicitor acting on behalf of neighbours;
- Objectors from neighbouring properties also attended the meeting and repeated objections set out in the case officer’s report. Members were also given the opportunity to ask questions and make comment.
- Panel members approved the application in accordance with the Council’s recommendations.
- My role is to consider if the Council decided the planning application without fault, not to decide the merits of the planning decision. It is not my role to challenge or test the merit of the evidence used by the planning applicant or objectors.
- Developer C sought to vary the existing application. The existing planning permission established the principle and scale of the development as acceptable. Therefore, the Council only had to consider the application on the changes sought. It is Mrs X’s view the application to vary the housing mix was outside the scope of a section 73 application. Mrs X says a full planning application was required as there were substantive changes in the description of the development.
- The Council considered the change in house types was not out with the description of the previous reserved matters approval and would provide the same number of dwellings (149) on the site. The Council considered the change in housing types not to be beyond the scope of the section 73 application. It decided that a full planning application was not required. This was a decision the Council was entitled to make and without evidence of fault in how the Council made this decision, the Ombudsman cannot question its merits. Mrs X says the Council’s decision is unlawful. The Ombudsman cannot say whether a decision is unlawful. That is solely a matter for the courts.
- The Council gave due publicity to the application including sending information to residents likely to be affected, including potential new buyers. The Council displayed four site notices and has provided photographs of two of these notices on site. Mrs X referred to the site notice in an email to the Council on 22 June 2020. The Council also placed an advert in a local newspaper. The Council recognises that some residential properties were not consulted on the application. Developer A confirmed that these houses had not been completed at the time of the application. Nevertheless, I am satisfied that these residents were not disadvantaged as the application was publicised through site notices and a press article. Mrs X and other residents therefore had the opportunity to raise objections to the proposal Therefore, I find the Council acted without fault in publicising the application.
- The Council also carried out extensive consultation on the application and it was noted that no objections were received.
- The Council gave the planning committee all relevant information on which to decide whether to approve the section 73 application. The committee had the updated case officer’s report which included, the application, the proposal, objections, consultation, and reference to national and local planning legislation. Mrs X’s objections were recorded in the officer’s report and the officer addressed issues about the section 73 process, consultation, impact on infrastructure, school places, doctor’s surgeries, parking, and highway safety.
- The committee received further representation from neighbours attending the meeting. The committee had information they could use to ask questions, challenge the officer’s recommendations, or ask for further information. I find the Council acted without fault in ensuring the planning committee had all the relevant information before them, including objections challenging the evidence to support the application when they decided to approve the application.
- Mrs X said the Council unreasonably relied on the original environmental impact assessments from 2013. In response to my enquiries the Council explained that the principle of a development of this scale had already been accepted in 2016 and therefore it was not necessary to complete new impact assessments. With regards to the change in housing type/mix this information was also available in site drawings in the overall package of information provided with the application submission. The Council also considered its own supplementary planning document. The document provides developers, planning officers and the public with information and guidance regarding the Council’s approach towards securing planning obligations. The document states that planning obligations relating to education will be applied solely to residential development, and only be applied if as a result of a residential development, the number of extra pupil places generated is in excess of the existing school capacity. Education provision is based on the number of dwellings. The number of dwellings had not changed from the reserved matters approval and therefore the Council decided there was no change in the impacts for associated school demand. This was a decision the Council was entitled to make. The Council also considered the impact on car parking provision and comments were recorded in the officer’s report. Information provided by the Council shows that parking provision was no worse than that of the approved scheme.
- I find no fault in the way the Council decided to consider environmental impact assessments from 2013. The evidence shows that the Council consulted its own supplementary planning document which showed that there was no change in the impacts for associated school demand and parking provision was no worse than that of the reserved matters approval.
- Mrs X told the Ombudsman the Council failed to consider the private impact assessment that she provided. The Council said it had not received a copy of the assessment. Therefore, I cannot say the Council was at fault for not considering it.
- Mrs X says the Council’s press advert was inaccurate and misleading. I understand the press advert that Mrs X referred to was a press story from a local newspaper published on 18 February 2020. Mrs X disputes this and says the Council was aware of the advert. I have not investigated this issue any further because I am unlikely to find fault that made a difference to the outcome. The Council publicised the application in a press advert on 27 February 2020.
- Mrs X says the Council delayed in responding to her request for information about house numbers and house style. The Council says that its neighbour notification letter made it clear that issues or questions raised in response to public consultation would not be responded to. I acknowledge that it must have been frustrating for Mrs X not to have received a response from the Council, but I do not find the Council at fault for not responding to Mrs X’s request at the time.
- I appreciate that Mrs X disagrees with the Council’s decisions. However, the Council took into account the relevant policies and planning consideration including neighbour objections. The Council recommended approval of the section 73 application and the planning committee agreed. On balance, I find the Council decided the application without fault.
- I have found no evidence of fault by the Council. I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman