Summary: Mr X complained about the Council’s decision to approve an amendment to a planning condition without consulting him or others. There was some fault which the Council agreed to remedy by improving its service, but the fault made no difference to the outcome of the planning decision and did not cause an injustice to Mr X or anyone else.

The complaint

1. Mr X represents a residents’ group who are concerned about a housing development on land near their homes.
2. Mr X complained the Council failed to consult him and other residents before approving an application to amend a planning condition. The condition controls drainage arrangements, and Mr X is concerned that there will be a public health risk if drinking water is contaminated by surface water drainage from the site.
3. Mr X would like the Council to revoke its decision to amend the original planning approval. He would also like the Council to ensure there are comprehensive surveys of drainage and groundwater matters.
4. Mr X also complained about the Council’s response to his enquiries and complaints. Mr X said the Council’s complaints procedure did not provide an independent review of what had happened.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
6. 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)

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How I considered this complaint

7. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, legal advice received by the Council, and the case officer’s report on a non-material planning application. I have considered legal advice from the Ombudsman’s lawyers and have discussed the case with two planning officers.
8. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

11. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
12. Councils and Planning Inspectors may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
14. If the Council decides the changes are ‘material’, it may require that the whole process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process, but only if:
• It considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make. This is the ‘procedural fairness test’.
• The nature of the application remains the same, so the amended proposal is still substantially the same as the original. The is the ‘substantive issues test’.
15. This type of amendment is known as a non-material amendment.
16. Councils may also decide that very minor changes are so insignificant, they require no procedural action. Planners often refer to this type of change as ‘de minimis’.
17. Not all planning decisions are made by Council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a Council’s constitution.
18. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

19. Several years ago, the Planning Inspector approved an appeal on an application for a housing development the Council had refused. The Inspector approved the application subject to planning conditions, including one that controlled site drainage. It said no development should commence until a drainage scheme had been approved in writing by the Council.
20. More recently the site owners sought to vary this condition to allow more time for drainage issues to be resolved. It was proposed the condition would say that no development should commence (except for access works shown on a numbered plan) until a drainage scheme had been approved in writing by the Council.
21. The case officer wrote a report. The report shows that the planning merits of the application were considered and so the officer recommended that:
• as no substantive changes were to be made to what had been approved, the proposed change to the condition was a minor, non-material amendment (NMA); and so
• the application could be decided by officers without re-publicising and inviting comments from the public.
22. The case officer report also shows that objections received earlier were considered again before the recommendation was made.
23. One of the Council’s senior planning officers said that, though the planning issues were straightforward enough (as the condition would still retain control over drainage arrangements) there was uncertainty as to whether a condition could be varied to allow more time in this way.
24. Because of the uncertainty, the Council sought legal advice, which confirmed that it could consider the application as a NMA. The advice focused on substantive planning issues but did not refer to the procedural fairness test as it related to the application.
25. The application was accepted as a NMA and it was approved by officers using delegated powers.
26. Later, the applicant submitted a drainage plan to the Council and requested that the condition be discharged as satisfied. The Council shared the proposed drainage plans with the Environment Agency and the local water company. The Council received objections from the water company because it was concerned the proposed scheme might affect its water supplies. The Council said it has not approved this drainage scheme and so retains planning control over drainage arrangements through the amended planning condition.
27. During my investigation, I spoke with officers about the records of the NMA decision. As set out above in paragraph 13 above, we expect councils to have evidence to show they consider both the substantive issues and procedural fairness tests.
28. I could see from its records that the Council had satisfied the substantive issues test. It had made judgements about planning matters, and had taken and considered legal advice on NMAs. However, I could not see what conclusion it had reached in relation to the procedural fairness test. One of the officers I spoke to was not aware of the procedural fairness test but assured me the Council will now consider whether it needs to consider its practices and procedures in light of this complaint.
29. However, the two senior planning officers I spoke to said they met with the case officer to discuss how to respond to the application before the NMA decision was made. They say they did discuss the planning issues relating to the application as well as whether others might wish to comment.
30. The Council said that the NMA itself related to a minor issue, as the approved development remained unchanged, and the Council has maintained control through its condition. It also says that, because the case officer’s report showed consideration of earlier objections, it can be implied that both substantive and procedural fairness issues were taken into account before a decision was made.
31. Mr X also complained about the Council’s complaints procedure, because he felt it lacked independence. He said the officers that responded at both stages of the complaint process had also been involved in the decision on the NMA.
32. The Council’s website shows an outline of the complaint’s procedure. Stage 1 is dealt with by an area manager, while at Stage 2 it is the relevant head of service to respond for the Council.
33. The Council says that, while it is not shown on its website, there is a policy that says these individuals should deal with complaints, unless it would not be appropriate for them to do so. If there are concerns about who should respond, it is for the head of corporate services to decide the matter.
34. In response to Mr X’s complaint about its complaints handling, the Council said its head of corporate services considered that the head of the service had not been involved and could respond for the Council.
35. The Council said its complaints procedure is currently under review and will consider what has happened in this case as part of that review.

My findings

36. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
37. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
38. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
39. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations. Even where there is no fault caused to the individual complainant, we can seek remedies to improve Council services.
40. Mr X complains about the Council’s failure to consult him and others about amendments to the drainage condition. He is also unhappy with how the Council has dealt with applications from the site owner to discharge the planning condition.
41. I am satisfied the Council took account of the substantive planning issues before a decision was made. The case officer report on the NMA application sets out the officer’s thoughts on the planning merits of the application clearly, and the Council later sought legal advice on substantive and legal issues before making its decision.
42. We make decisions on the balance of probabilities. That means when evidence is not conclusive, we decide what is most likely to have happened. I accept it was likely that, when it considered the NMA proposal to amend the drainage condition, the Council did consider both substantive planning issues and the question of whether third parties might want to comment. However, I saw no record of why it was the Council thought Mr X would not want to comment on an amendment that allowed more time, and this omission is fault.
43. I discussed my concern with a senior planning officer, who accepted there was no written record of the Council’s conclusions on this issue. The officer said that the Council can learn from this case and will consider making improvements in the future.
44. When we find fault, we must consider whether it caused a significant injustice to the individual complainant. In planning complaint cases, this usually means we first need evidence to show the outcome would have been different. I do not consider it likely the outcome would have been different, because:
• I am satisfied the Council thought about issues around substantive and procedural matters before it decided to accept the change as a NMA;
• the core issue, the provision of acceptable drainage arrangements, has not yet been decided;
• even if the Council had publicised the application to amend the condition, I cannot say it is likely the outcome would have been different. The Council was clear in its opinion that allowing more time was in itself a minor issue and I cannot say that more comments from the public would have changed that view.
45. There was some fault, albeit of a technical nature, but for the reasons given above, I cannot say there was an injustice caused by it to Mr X or others he represents. The Council has accepted its records could be improved and said that it will make improvements for the future.
46. To ensure this fault does not recur and prevent injustice being caused in future, the Council should take the action it has agreed.
47. Mr X also complained about the Council’s complaints procedure.
48. There is no statutory complaint procedure for planning complaints. We publish guidance for councils on effective complaint handling for all service areas. We expect councils be open and accountable. But it is for councils to decide how to do this. It does have a two stage procedure, however, and it has used it in this case.
49. The officer who responded at Stage 1 was involved in discussions about the NMA application. I see no injustice caused by this, as it is not unusual for officers who have been involved to respond at first instance. This happens because it is a good use of resources and officers who have been involved will be familiar with the facts and issues. It is also fair to allow officers a chance to answer for their actions and correct their mistakes.
50. However, in smaller Councils, where officers and managers work closely together, it can often be difficult to find a suitably qualified individual who has had no involvement, particular when the complaint relates to a large project.
51. Mr X said that the head of service took a call from the applicant before a change in stance on the NMA. He believes it was because of this call that the Council’s position changed.
52. I have read the Council’s legal advice and its officers reports. I have spoken to two senior planning officers, and I accept their explanation of what happened around the time the NMA decision was made. The evidence I have seen shows how the decision was reached and the Council’s conclusion (that the amendment was a minor matter, as the Council still maintained planning control over drainage) makes sense and is consistent with the legal advice it had. There may well have been changes of view along the way, but this is not unusual and does not make the Council’s final judgement wrong.
53. It may be that the head of planning did have some involvement, and it is always better if the final stages of complaints procedure are carried out by officers with no connection with matters complained about. However, we provide an independent review, a stage beyond the Council’s process, and I have found fault which the Council has agreed to remedy. I am satisfied no more needs to be done to resolve Mr X’s complaints.

Agreed action

54. There was fault and to prevent injustice being caused in the future the Council will:
• make sure its officers are aware of the procedural fairness test required by administrative courts;
• make proper records to show it has considered this test and the reasons for its decision.
55. The Council will provide evidence that it has carried out these actions within 3 months of our final decision.

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Final decision

56. There was some fault in the way the Council made records of its decision making, but the fault made no difference to the outcome and did not cause an injustice to Mr X. The Council agreed to my recommendations and so I completed my investigation.

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Investigator's decision on behalf of the Ombudsman