Summary: Mrs X complained about the Council’s decision to approve a large development on land behind her home. We ended our investigation because it is unlikely to result in a meaningful outcome.

The complaint

1. Mrs X complained about the Council’s decisions to approve a large development on land next to her home. Amongst other things, Mrs X complained that:
• an affordable housing report was inadequate, as it did not distinguish the costs between two separate planning applications; and
• the Council did not follow its policy and require the developer to provide additional land to add to an existing area of open land.
2. Mrs X does not claim to be personally affected by the Council’s decisions but says that there will be less affordable housing for younger people in the area.
3. Mrs X would like the Council to require more affordable housing and open space.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I read the complaint and discussed it with Mrs X’s representative. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer reports and affordable housing viability reports.
6. I gave Mrs 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

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it.

Background

12. Behind Mrs X’s home is land that is subject to a planning application. The application is part of a scheme, which includes two separate pieces of land on which it is proposed to build a mix of residential and other uses.
13. The developer submitted two applications, one for each phase of development.
14. The Council has an affordable housing policy that requires a percentage of new houses to be set aside for affordable housing. However, the policy allows for a lower requirement of affordable housing where there is evidence to show it would be unviable.
15. During the planning process, the developer found they had to reduce the number of houses on phase 1. They submitted an affordable housing viability report, which set out details of increased costs on both phases. The developer’s viability report said that the increased costs on phase 1 meant there should be no affordable housing required by the Council for that application. However, the developer said that despite this, they were prepared to provide a reduced number of affordable housing units on the site.
16. The developer also proposed a higher number of housing units on phase 2, which would mean that across both phases, the total number of affordable dwellings would meet Council policy targets.
17. The Council sought advice from an independent consultant, who reviewed the developer’s viability report. The consultant confirmed the viability report had been carried out by a qualified individual, who had been impartial and objective, and that they had taken account of appropriate information. The consultant agreed that the claimed estimates of increased or ‘abnormal’ costs were reasonable. The consultant concludes by advising the Council the percentages of affordable houses for different parts of the scheme.
18. The records show the advice given to the planning committee in the case officer reports. In addition to the committee report, there are also ‘late reports’ written by the case officer for each application. The application for phase 1 contains a significant amount of detail, including the developers account of the circumstances that led to the change in the number of houses, details from the viability report and advice from the independent consultant’s review.
19. The case officer reports also show consideration of the open land. The Council sent a copy of the relevant policy and confirmed that the policy required the size of the land to be maintained but not extended.

My findings

20. 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.
21. 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?
22. 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.
23. 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.
24. I should not investigate this complaint further, and my reasons are as follows:
• Mrs X was not caused a personal injustice by the new development. We usually need an injustice to an individual to justify our investigations.
• Before a decision was made, the Council considered the application plans, submissions from the applicant, consultee responses including those from members of the public, specialist reports and relevant policy. The Council has followed the decision making process we would expect and so it is unlikely that further investigation would result in a finding of fault.
• The independent consultant’s report does not always clearly separate information relating to the phases, but it does distinguish between them in its conclusions. After reading the case officer reports, and particularly the late reports for both applications, I am satisfied the case officer understood the issues and advised the committee properly.
• I read the policy relating to the open land and saw no evidence to support Mrs X’s claim that it should have been enlarged.
• Mrs X would like the Council to require more affordable housing. Even if we were to find fault, we would not be able to recommend the remedy Mrs X wants. This is because when there is no personal injustice to an individual complainant or some other identifiable individual, our remedies are limited to things like apologies and recommendations for service improvements. For the reasons set out above, I am unlikely to find fault that would justify such a remedy.

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Final decision

25. I ended my investigation, as it is unlikely to result in a meaningful outcome.

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Investigator's decision on behalf of the Ombudsman