Summary: We will not investigate this complaint about the Council’s involvement to label the complainant’s land as open green space in a Neighbourhood Plan. We have not seen evidence of fault in the Council’s actions. And we cannot achieve the outcome the complainant is seeking.

The complaint

1. Mrs X complains for her father, Mr Y. She says the local town council presented a fraudulent document when preparing its Neighbourhood Plan. Mrs X says the Council failed to ensure the town council followed the statutory process.
2. Mrs X wants:
• her father’s land removed from the neighbourhood plan; and
• an apology and financial compensation for stress

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The Ombudsman’s role and powers

3. 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
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

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

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as town councils. (Local Government Act 1974, sections 25 and 34A, as amended)

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How I considered this complaint

5. I considered:
• information provided by Mrs X and the Council
• the Neighbourhood Planning (General) Regulations 2012
• Government Guidance on Neighbourhood planning
6. Mrs X commented on the draft version of this decision.

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What I found

7. Neighbourhood planning gives communities a direct role to develop a shared vision for their area and deliver the sustainable development they need. Unlike parish, village or town plans that communities prepare, a neighbourhood plan forms part of the development plan and sits alongside the local plan prepared by the local planning authority (LPA). Decisions on planning applications will be made using both the local plan and the neighbourhood plan, and any other material considerations.
8. Where a community wants to take up the opportunities offered by neighbourhood planning, the legislation allows three types of organisation, known as ‘qualifying bodies’, to lead it:
• a parish or town council
• a neighbourhood forum
• a community organisation
9. The qualifying body here was the town council.
10. A neighbourhood plan should contain policies for the development and use of land. “If successful at examination and referendum (or where the neighbourhood plan is updated by way of making a material modification to the plan and completes the relevant process), the neighbourhood plan becomes part of the statutory development plan.”
11. Local Planning Authorities (LPAs), in the case the Council, have a duty to guide and aid qualifying bodies preparing neighbourhood plans. This will include sharing information, providing advice, and encouraging best practice.
12. The Council must progress a submitted neighbourhood plan proposal through the formal stages which include:
• publicising the submitted plan proposal
• arranging an independent examination
• determining if the plan should proceed to referendum; and
• making the necessary arrangements to hold the referendum.
13. An independent examiner considers the content of a neighbourhood plan. They are limited to testing whether a draft neighbourhood plan meets the basic conditions, and other matters set out in the relevant legislation. The independent examiner is not testing the soundness of a neighbourhood plan or examining other material considerations.
14. An independent examiner also considers proposals to modify or change neighbourhood plans already in force. They must first decide whether the proposed changes are so significant or great they change the nature of the plan.
15. There are three types of change which can be made to a neighbourhood plan or order. The process depends on the degree of change which the variation involves:
• Minor (non-material) changes to a neighbourhood plan or order are those which would not materially affect the policies in the plan or permission granted by the order. These may include correcting errors, such as a reference to a supporting document, and would not require examination or a referendum.
• Material changes which do not change the nature of the plan or order would require examination but not a referendum. For example:
1. adding a design code that builds on a pre-existing design policy, or
2. adding a site or sites which (subject to the independent examiner’s decision) are not so significant that they change the nature of the plan.
• Material changes which do change the nature of the plan or order would require examination and a referendum. This might, for example, be allocating significant new sites for development.

What happened

16. In 2020, Mrs X says she discovered land owned by Mr Y had been designated as open green space in the Neighbourhood Plan in 2016. She says after further investigation she discovered a document stating the landowners had given consent for the land to be made green space.
17. Mrs X says they complained to the town council that Mr Y’s land was unlawfully made into local green space by the town council without his knowledge or consent. She says the town council refused to answer any questions, so they complained to the Council that, as the LPA, it should have ensured that Mr Y, as landowner, was consulted throughout the planning process. She also says it is responsible for giving a fraudulent document to the Independent Examiner which influenced the decision to designate Mr Y’s land as open green space.
18. Mrs X ask asked the Council to either:
• revert the land back to being development potential; or
• keep some land as green space with the rest listed for development; or
• order the town council to pay Mr Y £500,000 compensation for devaluing his land
19. The Council explained to Mrs X that its role in Neighbourhood Planning is to take decisions at key stages in the process within time limits that apply. And to provide advice or help to the town council where appropriate.
20. It confirmed the consultation statement it received from the town council explained how it had consulted the community and the views considered. It set out how the draft plan met legal requirements.
21. The Council says it is satisfied the documents provided by the town council met the legislative requirements. It does not have to give a formal view on the draft plan until after the independent examination had taken place and the report received.
22. The Council publicised the plan and supporting documents, inviting representations between December 2015 and March 2016. It notified statutory consultees and those referred to the town council consultation statement.
23. In April 2016, the Council appointed an independent neighbourhood planning examiner to examine the draft plan and consider representations made during the consultation process.
24. The independent examiners report was received in June 2016. This states the examiner found the town council publicised the plan making process well using:
• social media
• local radio
• three local newspapers; and
• 20,000 leaflets

The examiner stated the consultation process was “comprehensive and robust”.

25. In September 2016, the Council published a statement confirming the neighbourhood plan complied with legal requirements and could advance to referendum.
26. In November 2016, a referendum was held and more that 77% of votes supported the plan. The plan was then ‘made’.

Assessment

27. Mrs X believes the Council is responsible for accepting false information and passing that information to the Independent Examiner. However, I disagree. The body responsible for the consultation is the town council.
28. As stated in paragraph 15 above, a process exists for changing a neighbourhood plan which is already in force. I understand Mrs X has already contacted the town council which has started the review process to change the status of Mr Y’s land.

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Final decision

29. I will not investigate this complaint. If there are failures in the consultation process as alleged, this would lay with the town council as the body responsible for the process. As stated in paragraph 4, town councils are not within our jurisdiction.
30. From the information I have seen the parish council has started the process to change the status of Mr X’s land which is the ultimate, desired outcome. It is unlikely we will find fault in the Council’s actions. Further investigation is unlikely to lead to a different outcome. And we cannot change the status Mr Y’s land or require the Council to pay him compensation.

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Investigator's decision on behalf of the Ombudsman