Summary: There was no fault by the Council in a complaint which alleged with its handling of a planning application.

The complaint

1. The complainant, whom I shall refer to as Ms X here, alleges fault with the Council’s handling of a planning application. Ms X says:
• Documents used in the decision were not placed in the public record meaning she was deprived of an opportunity to comment on the unpublished documents. Objections would have been raised had the documents been available and so these objections could not be taken into account. Inaccurate, untrue and incomplete information was not corrected and subsequently used in the decision.
• The Council failed in its duty to answer questions raised and give reasons despite being asked directly and with the matter being escalated through its complaints procedure.
2. Ms X’s injustice lies in the considerable time spent on this matter. Ms X wants the Council to address IT glitches and resource levels; use correct documents in its decisions; only use documents after it has consulted on them; set standards on acceptable photographs that portray what the eye sees; reasoning in English should always be provided; consider public views; demonstrate heritage asset impact; shield new buildings from public views in areas of outstanding natural beauty (AONB); consider light pollution in the AONB more thoroughly and not rely on pulling curtains; and have a complaint process that answers questions.

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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’. 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)
4. 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

5. I examined the complaint and background information provided by Ms X and the Council. I considered details of the planning application in question. I discussed matters with Ms X by telephone.
6. I sent an initial decision statement to Ms X and the Council. I considered the Council’s comments on it.

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What I found

7. The Council determined a planning application which proposed demolition of a garage and construction of a new outbuilding for use as ancillary residential accommodation.
8. The application was determined through delegated powers. The planning case officer summarised the objections the Council received from Ms X and others.
9. 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 reasons of brevity and anonymity. They are of course known to Ms X and the Council.
10. I note the delegated report included information on the site, the proposal, the consultation process, the representations that had been received and an assessment of the planning issues.

Documents used in the decision were not placed in the public record meaning Ms X was deprived of an opportunity to comment on the unpublished documents. Objections would have been raised had the documents been available and so these objections could not be taken into account. Inaccurate, untrue and incomplete information was not corrected and subsequently used in the decision

11. Ms X says here that the applicant provided further information to the Council on certain matters including visibility and public views from the site. The submissions, including site photographs, were made in response to concerns raised about those matters by the Council and third parties The Council did not reconsult the public when it received the information and comments from the applicant. Ms X feels the Council should have reconsulted not least because the applicant’s comments were inaccurate and untrue.
12. As a result of Ms X’s concerns, the Council uploaded all the information it received from the applicant to its website.
13. There is no statutory requirement for a local planning authority to reconsult simply because it receives new information from an applicant. The planning authority has to consider whether the information is an amendment to the application and, if so, whether it is a material amendment or not. If material, it is required to consult again. If it is not material, then it does not have to consult again although it has to consider the fairness of a decision not to consult again.
14. The Council received information which it considered were material amendments to the proposal and so it consulted third parties again. Ms X commented on the amendments.
15. But where the planning officer asked the applicant for site photographs and received comments from the applicant on objections made by Ms X and others, the Council did not consult third parties again. This is because the information did amend the application whether materially or not. I do not therefore find fault because the Council did not consult again on the material.
16. I understand that Ms X would have appreciated further consultation by the Council so she could have responded in turn to the applicant’s comments. But it would be impractical for planning authorities to have a system that enables such a right of reply. The legal relationship is between the planning authority and the applicant, and third parties formally have an involvement at the consultation stage but not beyond that stage. I am satisfied that Ms X commented on the planning application and so the Council discharged its statutory duty towards her as a third party.
17. As to whether the Council should have uploaded the information to its website at the time of receipt, I do not find fault because the upload was delayed or was only done because of Ms X’s complaint. It was not the Council’s policy at the time to publish further comments made by applicants on its website. I note the Council has since changed its approach and it will now publish all submissions on its website.

The Council failed in its duty to answer questions raised and give reasons despite being asked directly and with the matter being escalated through its complaints procedure

18. Ms X complains here about various matters ranging from whether guidance from Historic England was considered by the Council to the removal of hedges.
19. I note the Council’s responses to these matters. 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.
20. 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.
21. So, for instance, when Ms X says the planning officer did not directly mention the removal of hedges at the site, I accept the report was silent on the matter. But I do not consider the matter is significant. What was significant was that the officer was aware of the proposal’s visual impact on the environment; the need to consider the impact in light of the Council’s policies; and the need to place weight on the policies. The case officer’s analysis explained how she placed weight on the policies and material considerations.
22. I have read the planning report. 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 Ms X’s amenity. I do not find fault in the way the Council reached its decision on the application.

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Final decision

23. I closed this complaint because I did not find fault by the Council in the matters raised here.

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Investigator's decision on behalf of the Ombudsman