Summary: Mrs B complains about the Council’s decision to allow a planning application in her local area. She says the Council did not have due regard to established planning policy. Further, Mrs B says approval of the application is likely to increase the risk of flooding in her local area. We do not consider Mrs B has suffered serious loss, harm or distress by reason of any alleged fault. This is because the injustice to Mrs B is speculative. We are also unlikely to find fault with the Council’s actions. We have therefore discontinued our investigation into Mrs B’s complaint.

The complaint

1. The complainant, who I refer to as Mrs B, is making a complaint in relation to the Council approving a planning application. Specifically, Mrs B alleges the Council’s decision to approve development in July 2020 was inconsistent with planning policies and similar applications in the area which had been denied.
2. Mrs B says her local area is already susceptible to flooding and more housing in the local area means an increased risk of flooding. Mrs B acknowledges that because the development was permitted in 2020, this cannot now be undone. However, she wants the Council to ensure it applies both national and local policies to better serve local residents in the future.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating
• any fault has not caused injustice to the person who complained
• any injustice is not significant enough to justify our involvement
• we cannot achieve the outcome someone wants

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

4. 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).
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).

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How I considered this complaint

6. I have reviewed Mrs B’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. I have also read the Council’s planning decision. I invited both Mrs B and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

Application for development

7. Section 55 of the Town and Country Planning Act 1990 provides that planning permission is needed if the work being carried out meets the statutory definition of ‘development’. ‘Development’ includes building operations (e.g. structural alterations, construction, rebuilding, most demolition).
8. An application for planning permission for development is made to the local planning authority (LPA). This will normally be the district council or London Borough. Planning application procedure is set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order), SI 2015/595, (in England) (the 2015 DMPO). The LPA must provide a determination on the matter following a consultation.
9. The Planning Inspector acts for the responsible Government minister. The Planning Inspector considers appeals about:
1. delay by an authority in deciding an application for planning permission;
2. decision to refuse planning permission;
3. conditions placed on planning permission and;
4. a planning enforcement notice.

National and local planning policy

10. The National Planning Policy Framework (the National Framework) sets out the Government’s planning policies and how these should be applied. It provides a framework within which locally prepared plans for housing and other development can be produced.
11. Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. The Framework must be taken into account in preparing the development plan, and is a material consideration in planning decisions. Planning policies and decisions must also reflect relevant international obligations and statutory duties.
12. The South Somerset Local Plan 2006 to 2028 set out detailed policies and specific proposals for the development and use of land in the South Somerset area. The Local Plan sets out the long term planning framework for the district up to the year 2028. It represents the starting point for decisions on where development will be located in the district and will be used to reach conclusions on planning applications across South Somerset. Further, the plan sets out the Council’s objectives for providing enough homes, jobs and services, in an environmentally friendly and sustainable way to make the district prosperous both now and in the future. The Council must have due regard to its Local Plan when determining a planning application for development.

Chronology of events

13. In January 2020, the applicant submitted a planning application to the Council.
14. In July 2020, the Council approved the planning application following a period of consultation. The Council subsequently issued a decision notice which identified and assessed the application against its local plan and the National Framework.
15. In February 2021, Mrs B complained to the Council that the planning officer did not have due regard to established policy when determining the application.
16. In March 2021, the Council responded to Mrs B that it was satisfied that the relevant planning policies and issues were identified and assessed, and that appropriate weight was given to any relevant material planning considerations.
17. In May 2021, Mrs B escalated her complaint to stage two of the Council’s complaints policy and procedure. The Council responded to Mrs B emphasising where the planning officer had evaluated established policy. In all the circumstances, the Council did not uphold Mrs B’s complaint.

My assessment

18. In accordance with s26A of the Local Government Act 1974, the Ombudsman is required to only accept complaints made by someone who has claimed to have suffered a significant and personal injustice. This means the complainant must show a causal link between any fault and them personally suffering serious loss, harm or distress. It is usually not enough for the complainant to complain about a secondary impact on a wider group, or a consequence which is speculative.
19. In my view, any injustice to Mrs B is, on the face it, speculative. This is because the land has not yet been developed and Mrs B’s concern centres on the potential for increased flooding in the future. I am therefore not satisfied that Mrs B has been caused serious loss, harm or distress and that there is an injustice for the Ombudsman to remedy. Further, I note the planning application was determined in July 2020. In my view, had the Council’s planning decision caused Mrs B an injustice, I do not consider she would have waited until August 2021 to bring her complaint to the Ombudsman. On this specific issue, Mrs B says she waited over a year to bring her complaint due a very similar planning application in the same area being refused by the Council in February 2021. It would appear therefore that Mrs B’s complaint was not brought due to the alleged injustice of flooding.
20. Further, the application rejected by the Council was not an application submitted by Mrs B. It cannot therefore be said that Mrs B has suffered an injustice by reason of any alleged inconsistency in the Council determining planning applications. Moreover, the applicant of the planning application would have a right of appeal to the Planning Inspectorate.
21. Separately, the law says I cannot question the merits of a decision by the Council where it has been taken without fault. I have reviewed the Council’s planning decision notice which clearly references its local plan, as well as the National Framework. It is therefore unlikely that I would find fault with the Council’s actions as the relevant planning officer is entitled to make a determination exercising their professional judgement in accordance with established policy.
22. For the above reasons, I have discontinued my investigation.

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Final decision

23. I have discontinued my investigation because I do not consider that Mrs B has been caused an injustice by reason of the alleged fault. Further, I am unlikely to find fault in respect of any of the Council’s actions.

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Investigator's decision on behalf of the Ombudsman