Summary: Mr X complained about the way the Council considered a planning application for a residential development, and the decision to grant planning permission. Mr X also complained the Council’s response to residents’ complaints was inadequate and did not address their concerns. There is no evidence of fault in the way the Council considered the planning application or in its responses to residents’ complaints.

The complaint

1. The complainant, whom I shall refer to as Mr X complained about the way the Council considered a planning application for a residential development, and the decision to grant planning permission.
2. Mr X also complained the Council’s response to residents’ complaints was inadequate and did not address their concerns.
3. Mr X complains on behalf of the local residents.

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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 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. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

7. A few years ago the Council refused planning permission to build a housing estate on a site close to Mr X’s home. Access to the site would have been via Mr X’s street and the adjoining street. The planning committee considered the approach roads to the site were narrow and inadequate for the additional traffic that would be generated by the development. The committee also considered the density and layout of the proposed development would be out of keeping with the prevailing character of the area.
8. Later that year the developer submitted a further planning application to develop the site. Mr X and many local residents objected to the application. Mr X had grave concerns about the access through the narrow streets to the application site and considered the reasons for rejecting the previous application remained extant. Mr X considered the developer’s transport report was flawed and did not provide a true representation of the daily issues residents experienced with traffic and parking.
9. In addition Mr X was concerned that the area next to the site was a site of importance for natural conservation (SINC). He suggested the development would be an encroachment on the countryside and was contrary to planning policy. Mr X also raised concerns about the impact on local infrastructure and the environmental impact.
10. The case officer assessed the application and prepared a report for the planning committee recommending approval. The report sets out the responses from statutory consultees and interested parties, the background to the application, and the relevant planning policies.
11. The report also sets out the case officer's assessment of the proposed development. The case officer noted the Council was unable to demonstrate a five year housing supply. This was a material consideration when determining applications for new housing. As the site was outside the defined urban settlement boundary, the proposal was contrary to the Local Plan. However as the Council could not demonstrate it had a five year supply of land for housing, it could permit development outside the urban area boundary in certain circumstances.
12. The case officer considered the proposal met the criteria for development outside the urban boundary. The planning committee was concerned about the density and layout of the previous application, but the case officer noted the current proposal reduced the number of dwellings. This meant there was a lower density of dwellings per hectare. The officer considered the proposed development would relate well to and reflect the general character of the neighbouring urban area.
13. The report also sets out the case officer’s assessment of the ecological considerations, the impact on amenity and highways considerations. The officer considered the access to the site and revised site layout was acceptable. The planning committee had been concerned about the existing streets ability to cope with the additional traffic generated by the previous proposal. However the current proposal reduced the number of dwellings by 17% and the developer had provided further analysis of the condition and suitability of the approach roads. The case officer considered that subject to suitable planning conditions, the proposal would not have any unacceptable, environmental, amenity or traffic implications.
14. The planning committee considered the application and voted in favour of granting planning permission, subject to conditions. This included a legal agreement under s106 of the Town and County Planning Act 1990. The Council’s committee meetings are not recorded, but Mr X has provided a video taken by a member of the public of part of the meeting where the application was debated.
15. Mr X and local residents made a formal complaint to the Council. They complained the Council had not explained why it had granted planning permission, given the application was almost identical to the previous refused application. Mr X was concerned that members initially voted to reject the application but were pressurised by officers to grant permission. Residents also questioned:
• why some members of the committee were excused from the vote or allowed to abstain;
• why other councillors were not drafted in to replace absent members;
• why members did not visit the site;
• how a decision could be made when only five of the nine committee members voted; and
• why members did not test evidence provided by the developer and planning officer.
16. Mr X and the local residents asked for a meeting with the Council to discuss the matter.
17. The Council’s response reiterated that the fact the Council is unable to demonstrate a five year housing land supply has a significant impact on the way the Council must decide applications. It noted the previous application had not been refused because the land was designated as countryside or because building housing on the land was unacceptable in principle.
18. The Council confirmed that although the committee had decided to grant planning permission, this was subject to a legal agreement. As the legal agreement had not yet been signed, the Council had not yet issued a formal decision notice.
19. In relation to the actions of the committee members, the Council confirmed there was no requirement for individual members to set out why they had voted the way they did. Nor is there a requirement for members to vote for or against a proposal. Members are allowed to abstain from voting, and do not have to explain why they have abstained. The Council’s constitution requires there to be a least three members present in order for there to be a quorum.
20. The minutes of the meeting note two councillors declared an interest in the application. They left the room and took no part in the discussion. The Council states it is for members to decide if they are at risk of pre-determination and whether they should take part in the discussion. It notes that a failure to properly consider their position on pre-determination could amount to a breach of the Code of Conduct and undermine the legality of any decision reached.
21. The Council was satisfied members considered all the relevant material planning considerations in deciding the planning application. Members are not required to visit the sites of planning applications in advance of the meeting.
22. Mr X and other local residents also met with council officers to discuss their concerns. As they were not satisfied by the Council’s responses they asked for their complaint to be considered at stage two of the Council’s complaints process. Mr X remained concerned about inconsistency in the decision making; inadequate and incomplete information presented to the planning committee; and the actions of committee members in recusing/ failing to recuse themselves, or in abstaining from voting.
23. The Council investigated the complaint and found no fault in the way the planning application was considered and was satisfied the resolution to grant planning permission was sound. It noted the presentation to the planning committee is principally to ensure members are aware of the extent of the application site, the relationship with adjoining land and uses, and to show the key drawings submitted with the planning application. The case officer’s report is not expected to look exhaustively at every issues raised. It is open to members to request further information if they believe it is needed before deciding the planning application.
24. The Council also reiterated it was not a breach of the Code of Conduct for a councillor to stand down from any committee if they believe themselves to be predetermined. And that Members are at liberty to abstain from voting.
25. As the residents remained unhappy with the Council’s response, they asked the Ombudsman to investigate their concerns. At that time, although the planning committee had voted in favour of the application, the Council had still not issued a decision notice. We did not consider it appropriate to investigate the complaint until the Council had granted planning permission.
26. The Council granted planning permission in 2021. In the intervening period residents raised concerns about the environmental survey being out of date. The Council told residents it had discussed the reports with the developer who had agreed to provide further surveys. Once it had these reports the Council would seek advice from its ecologist.
27. In addition, Natural England highlighted that increased levels of nitrates entering the Solent were likely to have a significant effect on European Protected Sites. It updated its advice to recommend an Appropriate Assessment is undertaken for every application for new dwellings.
28. The Council carried out an Appropriate Assessment and consulted Natural England on its findings. An officer then prepared a report setting out the updated position. They noted the proposed development remained materially the same and that a s106 planning obligation had been agreed. There were three material changes to the planning consideration set out in the report to the planning committee:
• The Council’s housing land supply was very marginally different to that at the time the planning committee considered the application;
• Natural England had raised the issue of adverse effects arising from residential development on the water quality of The Solent; and
• Revised national guidance through the National Planning Policy Framework (NPPF) had a bearing on the correct approach to decision making.
29. The officer considered each in turn and confirmed the recommendation remained that planning permission should be granted.
30. The report also considered the additional ecological information submitted by the developer and the ecologists comments. The officer concluded that the development of the site would not have an unacceptable impact on protected species on the site.
31. Mr X disagrees with the Council’s decision and is unhappy that residents were not given the opportunity to present their case to the planning committee before planning permission was granted. He states local councillors had informed them this would be the case. Had residents known they would not have this opportunity they would have instructed a lawyer to support their case.
32. As planning permission has now been granted Mr X has asked the Ombudsman to investigate residents’ concerns. He asserts that key aspects of the Council’s Code of practice for members have not been followed and residents have been treated unfairly. Residents have experienced several years of turmoil, during which they felt the evidence provided was biased towards the developer while residents’ objections were dismissed.
33. Mr X would like the development halted and an independent and impartial review carried out. He would like the residents to have the opportunity to present a deputation to the planning committee and for the whole committee to vote on the proposal, with no abstentions. Mr X would also like the Council’s failings to be highlighted and for lessons to be learned from this application.
34. Mr X has responded to the draft decision and reiterated his concerns about a lack of transparency in the planning process and a failure to act in accordance with the Council’s code of conduct. He considers that residents have been penalised because the Council did not have a five year housing supply. Mr X considers evidence presented to the planning committee was incomplete and biased in favour of the developer. He asserts the ecological surveys omitted important information and the traffic survey was not representative of the daily traffic flow.
35. In addition Mr X maintains the development does not reflect or represent the current housing density and is not in keeping with the style of the adjacent streets. And that access to the site is via an unauthorised gate.
36. Mr X believes the planning process and system of delegating decision making to officers should be reviewed to ensure there is proper accountability and governance in the process.

Analysis

37. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made where there is no evidence of fault or offer any opinion on whether we agree with the judgment of the Council’s officers. Instead, we focus on the process by which the decision was made.
38. In deciding an application, councils must publicise all planning applications so people may comment on the proposed development. The opportunity to make representations is not the same as being consulted. Councils must consider what people say about the proposals, but they need not agree with those comments. Councils must also look at planning policy and all other relevant planning matters affecting the development often weighing and balancing competing views and interests to reach a planning decision.
39. Mr X complains the officer’s report does not present a balanced view of the proposal or fully evaluate the issues. Officers are expected to take a view on the acceptability of a proposal and provide unbiased and professional advice. This includes making a recommendation to either approve or refuse an application. The officer's report sets out how they considered the Council's own policies, the material issues, and consultee and neighbour responses. Mr X disagrees with the officers' assessment but here is no evidence of fault in the way they considered these issues.
40. The officer’s recommendation is not binding on the planning committee, who will make their own decision on whether to approve or refuse the application. In order to reinforce their objections the residents employed a planning consultant to speak at the planning committee and raise their concerns directly with the members. Members then discussed the proposal and asked questions of the presenting officer, before reaching a decision. Mr X disagrees with the committee’s decision, but there is no evidence of fault in the way it was taken.
41. Mr X is concerned that officers acted inappropriately in pressing members to agree with their recommendation rather than refuse the application. Where the planning committee intends to make a decision contrary to the officer’s recommendation there should be a detailed record of the committee’s decision reasons, which should be set in the context of the development plan or the NPPF. Guidance by the Planning Advisory Service and the Local Government Association on probity in planning suggests in such cases, officers should be given the opportunity to explain the implications of a contrary decision, including an assessment of a likely appeal outcome and the chances of a successful award of costs against the council. The decision is ultimately the committee’s, but it must be made with regard to relevant planning considerations.
42. The officer’s reminder that members need to provide clear reasons should they decide to refuse the application is not fault. Nor was it fault for some members to recuse themselves or to abstain from voting. We would not expect members who have declared an interest in an application to take part in the debate or to vote on the proposal. Members can also chose to abstain from voting.
43. I recognise Mr X is disappointed that local residents were not given a further opportunity to make representations on the application. But the planning committee did not request that the application be brought back to members for further consideration once the s106 agreement and planning conditions were in place. A senior officer issued the planning decision notice under delegated powers in line with the Council’s Scheme of Delegation.
44. The Council has responded to Mr X and residents’ formal complaints about this planning application. Mr X disagrees with the Council’s comments and explanations, but I am satisfied the Council has adequately addressed the issues.

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Final decision

45. There is no evidence of fault in the way the Council considered this planning application and resolved to grant planning permission. Nor is there fault in the complaint process.

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Investigator's decision on behalf of the Ombudsman