Summary: Mr X complained about the Council’s decision not to require an area of public open space that is accessible to wheelchair areas. Mr X is a wheelchair user and cannot access all areas of the land. There was no fault in the way the Council made its decisions.

The complaint

1. Mr X complained about the Council’s decision to allow a housing development to be built without requiring an area of public open space that is accessible to wheelchair users.
2. Mr X also complained that he was not allowed to speak about the issue at a meeting of the Council’s cabinet.
3. Mr X said that he is a wheelchair user, and though he lives three miles from the site, he has strong links with the land and would like to visit it.

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The Ombudsman’s role and powers

4. 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 organisation’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. If we are satisfied with an organisation’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

6. 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. I discussed the complaint with the Council’s planning case officer.
7. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. 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.
11. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of relevant policy along with other material planning considerations.
12. 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 type of contract that is legally binding on the parties that sign it, and the successors in title to the land it applies to.
13. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.
14. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.
15. Equalities law requires councils to take such steps as it is reasonable to avoid putting disabled people at a substantial disadvantage.
16. Building control bodies enforce building regulations. There are regulations that control access to buildings, including wheelchair access to dwellings.
17. Council planning powers are granted by a statute, and because of this are not the responsibility of council cabinets or executive members. These and other statutory powers are often described as ‘non-executive’ functions.

Background

18. The Council approved a planning application for housing development. It approved the application subject to a section 106 agreement, which (amongst other things) required the developer to provide play equipment in an area of public open space on the edge of the site.
19. Following the approval, it became clear to the Council that significant engineering works would be necessary to provide a path on the land, because of a steep bank. There were also increased concerns about how the development might affect surface water run-off from the development, and that further engineering works might increase this.
20. The Council said it recognises that wherever it is practically possible to do so, it should require level access routes to public open space. It said that it did want to require the developer to provide a play area accessible to people with disabilities on this site but decided not to enforce the section 106 agreement because of the steep slope of the land, and the engineering and drainage challenges it created.
21. Mr X said that the Council is in breach of its own planning policy, which required all new developments should be accessible to people with mobility problems.
22. The Council said it is not aware of any specific planning policy relating to access to buildings or open space, but it does recognise the general need to make buildings and public space as accessible as possible. It had wanted to require a level access play area within the open space, but other planning considerations persuaded it not to pursue this.
23. The Council said that because of the steep slope and other constraints, it was not practical or reasonable to require the level access play area or insist upon level access to all parts of the site.
24. Mr X is also unhappy about the Council’s decision not to allow him to speak about what has happened during a meeting of its cabinet. The Council’s Chief Executive wrote to Mr X and explained this was because planning decisions are ‘non-executive' functions, and so did not fall within the cabinet’s terms of reference.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
26. Before it made its decision, the Council was aware of the planning issues, including the needs of disabled people, and the benefits that would be provided by a level access to play equipment in an area of public open space. The provision of this equipment and the area of open space is supported by council policy, but this does not mean it is obliged to require them.
27. In making its decision, it took account of policy and other factors, such as the impact significant engineering works would have on the area and the potential for increasing surface water run-off. The Council is entitled to decide how much weight to give to any planning consideration. It followed the decision making process we expect and so was entitled to reach the decision it has. I find no evidence of fault in the way the Council made its decision.
28. The Council is correct to say decisions relating to its planning powers are non-executive functions. Because of this, it was entitled to decide its cabinet could not hear Mr X’s complaints about what had happened during the planning decision making process.

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Final decision

29. I have completed my investigation because there was no fault in the way the Council made its decisions.

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Investigator's decision on behalf of the Ombudsman