Summary: Mr C complained about the Council’s handling of several planning applications. He says the Council failed to notice the site boundary had changed on a subsequent planning application. We find the Council is at fault for failing to notice the site boundary had changed. The Council apologised to Mr C and put in place service improvements to prevent reoccurrence of the fault. This is a sufficient remedy. However, the Council also delayed responding to Mr C’s complaint. The Council has agreed to apologise to Mr C for the frustration caused.

The complaint

1. Mr C complained about the Council’s handling of several planning applications. He says the Council failed to properly publicise the original planning application which meant he and his neighbours did not have an opportunity to object.
2. Mr C also says the Council failed to notice the site boundary had changed on a subsequent planning application.
3. Mr C says the matter has caused stress and frustration. He adds the development will change the character of the local area.

Back to top

What I have investigated

4. I have investigated Mr C’s complaint as set out in paragraph two above. I have not investigated his complaint as set out in paragraph one for the reasons explained at the end of this statement.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)

Back to top

How I considered this complaint

8. I considered information from Mr C. I made written enquiries of the Council and considered information it sent in response.
9. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Planning permission

10. The Town and Country Planning Act 1990 gives local authorities the power to decide if planning applications should be approved, refused, or approved subject to planning conditions.
11. Councils must consider applications on their planning merits and make decisions in line with relevant policies in their development plans unless material planning considerations suggest otherwise. Material considerations include issues such as overlooking, previous appeal decisions, layout and density of the building, access to the highway and the protection of ecological and heritage assets.

What happened

12. The Council received a planning application (Application A) for a development near to where Mr C lives.
13. The Council granted planning permission, subject to conditions. It said the applicant would need to submit details of the appearance, landscaping and layout and scale of the development before works could begin.
14. The applicant submitted a further planning application (Application B) a few years later. This dealt with some of the outstanding details from Application A. The Council granted planning permission, subject to further conditions.
15. The applicant submitted a further planning application (Application C) the following year. This was a variation of the conditions attached to Application B. The Council granted planning permission.
16. Mr C contacted the Council the following year. He said the applicant had started clearing land that was publicly owned. A councillor also contacted the Council. He explained the site boundary on the location plans for the development in Applications A and C were the same, but the boundary on Application B was different. The boundary in Application B included land the Council owned. Therefore, he said it was not clear the applicant owned the land they were about to start digging up, or that they had planning permission to carry out any works on it.
17. The organisation (Organisation A) that manages highways on behalf of the Council said the land was publicly maintainable land. It said the planning officer told the applicant to stop any works and officers would monitor the situation.
18. Mr C complained to the Council. He said it had failed to take responsibility for the ownership of publicly controlled land. He also said it had failed to protect the interests of residents.
19. Organisation A responded and said the applicant had been advised of the requirements of working within the extent of the publicly maintainable highway. It said the applicant had installed sheeting on the land to protect it from deterioration until the necessary planning and highways permissions had been obtained.
20. Mr C replied and said he did not understand why it had not taken action against the applicant. Organisation A responded and explained it had taken no action as the applicant had stopped the work.
21. Mr C exchanged further emails with the Organisation A about the issues. Organisation A explained the applicant could undertake works on the land if they had the appropriate licence. It said it could see no reason why it would object to the works being undertaken. Finally, it said it would make it clear to the applicant the land would remain in control of the highway authority, and they would not have exclusive rights of use. Alternatively, the applicant could apply to ‘stop-up’ the highway. This would mean the land would stop being in the authority’s control.
22. The Council issued its step one response to Mr C’s complaint. It apologised for the delay in responding. It also said the different site boundaries on the location plans is something officers should have detected and it apologised for this. However, there was no meaningful harm as a result. This is because even though the location plan from Application A did not include the land, the approved layout plan did. The approved details provide the applicant with the option to implement either of the approved drawings. The planning officer considered the proposed access details on the approved layout plan in their assessment. It also said land ownership is not a material consideration for planning applications, and any disputes about such matters would need to be resolved with the landowner.
23. The Council said going forward it would remind case officers to check site boundaries on location plans when there are several applications relating to the same site. It also said it was considering adding ‘informatives’ to planning decision notices. This would advise applicants to seek highways approval for developments which may impact on highways assets.
24. Mr C referred his complaint to step two of the Council’s complaints procedure on 13 December 2021. He said the Council had failed to address his concerns about the publication and consultation process for Application A. He also said he had not received a response as to whether a revised planning application was required, and it had given conflicting information on whether it owned the land.
25. The Council responded to Mr C’s complaint on 7 March 2022. It confirmed it followed the correct public consultation process. It also said irrespective of the site location plan, the approved layout plan included the area of land in dispute. Therefore, no further planning permission was necessary. It said it did not own the land, but highways rights exist.
26. Mr C remained dissatisfied with the Council’s response and referred his complaint to the Ombudsman.

Back to top

Analysis

27. The Council accepts it was at fault for failing to notice the site boundaries on the location plans for Applications A and B had changed. It apologised to Mr C and confirmed it has put in place service improvements to prevent a reoccurrence of the fault.
28. I consider this is an appropriate remedy. The Council is correct in saying that even though the location plan did not include the area of land, the approved layout plans did. Therefore, further planning permission is not required. Land ownership is not a material planning consideration for planning officers to consider when determining planning applications.
29. Access to and from the highway is however a material planning consideration. The planning officer considered this in their report and said the proposed access set out in the layout plan was suitable.
30. I have however found further fault with the Council’s complaints handling. It delayed responding to Mr C's complaint at step one, but it recognised this and apologised. However, it also delayed responding to his complaint at step two. The Council’s complaints procedure says it will respond within 20 working days. Its step two response was significantly outside of this timescale, and it failed to acknowledge this. This caused Mr C frustration as he had to wait even longer for the Council to address his concerns.

Back to top

Agreed action

31. To address the injustice caused by fault, by 19 September 2022 the Council has agreed to:

• Apologise to Mr C for the frustration caused by the delay in responding to his complaint.

Back to top

Final decision

32. There was fault by the Council, which caused Mr C an injustice. The Council has agreed to my recommendation and so I have completed my investigation.

Back to top

Parts of the complaint that I did not investigate

33. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. Late complaints are when someone takes more than 12 months to complaint to us about something a council has done.
34. Mr C says the Council failed to properly publicise Application A. He says he became aware of it in 2017/2018. He did not refer his complaint to us until March 2022. I am satisfied Mr C had opportunities to bring this part of his complaint to us much sooner and so I will not exercise discretion to investigate it.

Back to top

Investigator's decision on behalf of the Ombudsman