Summary: Ms Y and Mr W complain about flaws in the Council’s approval of a large planning application close to their home. We find no evidence of procedural fault and so we cannot question the merits of the Council’s decision to approve the scheme.

The complaint

1. Ms Y and Mr W complain about flaws in the Council’s decision making for a planning application. They say the Council failed to give due regard to the impact on nearby residents and did not follow the correct procedures during the Planning Committee meeting.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. During my investigation I discussed the complaint with Mr W and considered any information the complainants submitted.
5. I made enquiries of the Council and consulted the planning documents for the scheme complained about.
6. I issued my provisional findings in a draft decision and invited comments from the Council, Ms Y and Mr W which I considered before making a final decision.

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What I found

Brief background

7. Ms Y and Mr W complain about the development of a nearby site containing a listed building, within a conservation area, which holds significant historical and cultural importance. The building is currently in a state of severe disrepair and has been deemed ‘at risk’ by Historic England.
8. The site previously received planning permission for the development of a seven-storey apartment block, however the works did not proceed, and the planning permission lapsed. Meanwhile, the building continued to fall into disrepair. Another developer then applied to the Council in 2020 for permission to build a larger nine-story block with 91 apartments. The proposal sought to retain some of the listed building for its original purpose as an entertainment venue.
9. The Council recommended approval but deferred the decision to its planning committee due to the size of the proposal and the level of public interest.
10. The Committee considered the application by a virtual meeting and approved the proposal with six votes in favour, three against and three abstentions. Ms Y and Mr W complain both about the decision-making process and the lack of consideration given by the Council regarding the impact on residents.

Planning Committee

11. Ms Y and Mr W complain the Planning Committee meeting was undemocratic and did not follow due process when it considered the application. Firstly, Ms Y and Mr W say the Chair had a pecuniary interest which he failed to disclose. This is because the Chair was previously employed on the construction of a different scheme designed by the same architect.
12. Government guidance ‘Openness and Transparency on Personal Interests’ defines a pecuniary interest as “… business interests (for example their employment, trade, profession, contracts, or any company with which they are associated) and wider financial interests they might have (for example trust funds, investments, and assets including land and property”
13. I have watched a webcast recording of the full Committee meeting. The Chair makes a declaration of interest for two other applications to be discussed and as a result the Vice Chairman chaired the discussion, and the Chair left the meeting. The Chair then returned for the second application, which is the subject of this complaint, after having not declared any interests.
14. In response to my enquiries, the Council said it was not aware of any disclosable interests between the Chair or the developer and so it cannot offer any further comment. In response to Ms Y and Mr W’s complaint, the Council says the Chair was previously involved on another scheme designed by the architect, but there is no suggestion the Chair is employed on this scheme or that he knows the architect personally. The Council invited Ms Y and Mr W to submit a code of conduct complaint for the matter to be fully investigated if they maintain their view about the Chair’s interests.
15. Ms Y and Mr W have not provided any evidence to support their claim that the Chair had a disclosable interest. Due to the lack of evidence, I am not able to make a finding on this point. Furthermore, I consider Ms Y and Mr W should use the Council’s code of conduct complaint process for the matter to be considered by the Monitoring Officer (MO) in the first instance. I appreciate Mr Y has some reservations about the process lacking impartiality, but he would have the opportunity to approach the Ombudsman again if he had concerns about the MO’s investigation.
16. Secondly, Ms Y and Mr W say the meeting was weighted in favour of those who supported the application. They say the Chair was biased in some of the comments he made about the representations, and a member of the Town Council who spoke in objection of the proposal was interrupted due to technical difficulties and prevented from finishing their presentation.
17. In line with the Council’s ‘Speaking at Committee’ information, published on its website, the following people can request to speak at a planning committee meeting:
• a member of the public against the proposal
• a member of the public in favour of the proposal
• a representative of the Town or Parish Council
• ward members; and
• the applicant or their agent
18. The Council allows one member of public to speak for the proposal, and one against. The Council writes to anyone who has responded to a planning consultation around one week before the meeting with the deadline to make a request to speak at the meeting. If more than one person wishes to speak, and residents have not chosen for someone to speak on their collective behalf, the Council gives priority to those living closest and also operates a first-come first-served basis.
19. The Local Government Association guidance ‘Probity in Planning’ (2019) states that, “Whether to allow public speaking at a planning committee or not is up to each local authority… where public speaking is allowed, clear protocols should be established about who is allowed to speak, including provisions for applicants, supporters, ward councillors, parish councils and third-party objectors. In the interests of equity, the time allowed for presentations for and against the development should be the same, and those speaking should be asked to direct their presentation to reinforcing or amplifying representations already made to the local planning authority in writing”.
20. In my view, and having reviewed the full webcast of the meeting, I find no evidence of bias. The Council is entitled to choose how many people it allows to speak at the meeting, provided it has clear protocols and allocates equal speaking time for both sides. I am satisfied the Council followed the guidance; it published its speaking protocol online and, in this case, allowed both speakers to each present for three minutes and allocated the same time to the Town Council.
21. Furthermore, the webcast does not show the member of the Town Council was prevented from speaking due to technical difficulties. The member did pause half-way through their presentation for a second or two and cited technical problems, but then quickly proceeded with their speech. Once three minutes had passed, the Chair interrupted to advise the allocated speaking time was up and invited the member to finish their sentence. This is not fault.
22. Ms Y and Mr W also say the Chair prematurely ended the meeting because of personal commitments. The Chair made a remark about watching football during the Committee’s discussion of the first application. The Chair was not involved in that discussion due to an interest he had declared at the start of the meeting. Therefore, whether he was watching football in his own personal time was a matter for him and is not fault. There is no evidence the Chair made any such remarks when chairing the discussion for the application which Ms Y and Mr W complain about.
23. Ultimately Ms Y and Mr W feel the Committee did not have enough information to make a fair and robust decision. For example, Mr W explains how there were over 100 written comments in objection to the application and it was not possible for these to be considered with the level of detail and debate required. Mr W also explains how some of the views of a group were misrepresented and the Committee was led to believe that some of the objectors in fact favoured the proposal.
24. I have considered the case officer’s report which is significant in both its length and detail. The group which Ms Y and Mr W refer to are mentioned in the report. It says, “[the group] was consulted and expressed an eagerness to see the existing [building name] brought back into use – and the use and works to the existing building are not contested. However, the [group] does raise concerns and finds the design of the building objectionable, citing that they consider it dominate the existing building and therefore reduces its impact upon the streetscape, thereby reducing its significance”
25. The report also summarises the other objections received and analyses the material planning considerations. In my view, I am satisfied the views which Ms Y and Mr W refer to were not misrepresented, and the Committee had enough information to reach an informed decision about the proposal.

Impact of construction

26. I understand Ms Y and Mr W have concerns about the impact of the build phase, especially with regards to the hours of operation. Through planning condition, the Council has limited the hours of working on site. Ms Y and Mr W have said the permitted hours are unacceptable because development can take place from 07:30 to 19:00 Monday to Friday (excluding bank holiday Mondays) and 07:30 – 13:00 on Saturdays. Ms Y and Mr W say this is unacceptable and inconsistent because another nearby development has more restricted hours: 08:00 to 17:30 Monday to Friday and 08:00 to 13:00 on Saturdays.
27. In response to my enquiries, the Council says the development which Ms Y and Mr W are comparing to is larger in scale. The development complained about is smaller and the construction period is expected to be shorter. The Council also points out that the developer has submitted an amendment to vary the working hours to bring them in-line with the other development referred to.

28. Ms Y and Mr W also mention the impact the building will have on the enjoyment of their home, and the sense of bulk and enclosure the new apartment block will create. The officer’s report considered this point and concluded, “due to the location of this development, and its orientation it is not considered that there would be any mutual overlooking, any creation of a sense of enclosure or loss of sunlight/daylight… There would undoubtedly be a change in outlook, particularly for the residents of [address removed], but this in itself is not a ground to refuse”.

My analysis

29. While I appreciate that Ms Y and Mr W have concerns about the development, particularly due to its location and size, the Ombudsman is not able to interfere with the merits of planning decisions. Instead, we must focus on how the Council arrived at its decision and whether it considered all relevant and ‘material’ planning matters before making its determination. If the Ombudsman finds evidence of procedural fault in a Council’s planning assessment, we consider whether this has caused injustice to the person affected and what remedy the Council should implement to put those affected back in the position they would have been, were it not for the fault.
30. I do not find fault with the Council. I am satisfied the officer's report addressed the material planning matters raised by Ms Y, Mr W and others, including contentious issues such as lack of parking, overlooking, size and loss of light. Furthermore, I have not seen any evidence which shows the Committee meeting was undemocratic or biased; in my view the Committee had a summary of all views and was able to make an informed decision about the development.

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Final decision

31. I have completed my investigation and issued a final decision with a finding of no fault for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman