Summary: We will not investigate Mr X’s complaint about a proposed development near his property. The development has not yet been granted planning permission. We will not investigate a council’s planning process while it is ongoing. We also cannot determine whether there has been a significant personal injustice caused to Mr X stemming from that process until it has ended. We would not have enough evidence of fault, or of significant personal injustice, to warrant investigation of a complaint on the same issues from him after the permission is granted, and could also not achieve the outcome he wants. It would be reasonable for Mr X to refer his freedom of information complaint to the Information Commissioner’s Office.

The complaint

1. Mr X lives near a proposed residential development. He complains:
1. the Council failed to take account of the many objections to the development;
2. the planning committee was not conducted in a fair manner and Members had pre-determined the decision to grant the permission;
3. the Council has failed to reply to a freedom of information (FOI) request from him related to the planning matter
2. Mr X believes the local infrastructure would not cope with the scale of the development. He wants a separate planning committee to review the application from the beginning, following the correct procedure.

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The Ombudsman’s role and powers

3. 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
• we cannot achieve the outcome someone wants; or
• there is another body better placed to consider a complaint.

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

4. The Information Commissioner's Office (ICO) considers complaints about FOI issues. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about FOI, we normally consider it reasonable to expect the person to refer the matter to the ICO.

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How I considered this complaint

5. I considered information from Mr X, online planning information, and the Ombudsman’s Assessment Code.

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My assessment

6. The planning committee voted to give its support to the development at its meeting. But the Members have not granted the permission. They delegated that action to officers. The grant of permission is dependent upon negotiations between officers and the developer, which are ongoing. There is no final outcome of the planning process, including the committee meeting, at this time. We will not investigate an ongoing planning process where the permission has not been granted. I note Mr X says there was fault during the committee’s earlier involvement in the process. He believes the consideration by Members was not conducted fairly and pre-determined their decision. But we will not investigate part of a planning process in isolation when there has been no final position reached.
7. The lack of a final planning decision here also means we cannot make a finding on whether the matter has caused Mr X injustice. We cannot make findings on the impacts of the development and the planning process on him until a planning decision has been made.
8. Mr X may wish to pursue his complaint if or when the Council grants planning permission for the development. This would be a new administrative decision by the Council, so he would need to complain about it to the Council first.
9. If Mr X remained dissatisfied with the outcome of his further complaint to the Council, he may wish to bring the matter back to the Ombudsman. However, if he asked us again to investigate after the planning permission is granted, it is unlikely we would pursue the issues he has raised in this complaint. I say this because:

• There is not enough evidence of a significant personal injustice caused to Mr X by the proposed development to warrant investigation. The planned development would not share a boundary with Mr X’s property and would not have a significant negative impact on it. The proposed development may be visible from parts of Mr X’s house and garden, some distance away. But there is no right provided by the planning system to retain a particular view. Any increase in traffic accessing the new properties would be unlikely to cause such a significant injustice to him to justify our involvement. The much wider impact of the development on the infrastructure of the local area would not be Mr X’s personal injustice.
• There is not enough evidence of fault in the planning process, up to and including the committee process, to warrant an investigation. Officers considered the relevant information to make their recommendations to the committee. This information included the objections from residents. The officer’s report to the committee sets out the reasons why they considered the balanced benefits and impacts of the proposed scheme did not give grounds to recommend refusal. It is not numbers of objections which influence planning decisions, but the force of the planning arguments made. It is not fault for a council to make a recommendation on a planning matter which disagrees with the majority of objections, or with the view of a complainant.
• In respect of the online committee meeting, it is unlikely to be fault for Members to talk over or interrupt participants. This may occur more frequently in online meetings due to connection delays. In any event, there is not enough evidence this resulted in the committee not properly considering the application, including all points made for and against, either in person or in written submissions. Mr X also claims Members pre‑determined the application, a view the Council disputes. This is a serious allegation which would require evidence. There is not enough evidence here to support Mr X’s allegation of any pre‑determination to warrant its investigation.
• We also cannot achieve the outcome Mr X wants, for the application to be reconsidered by a new planning committee. There is no substitute committee to replace the one which deals with planning applications received for this part of the Council’s area. There is no valid process by which a council can set aside an entire committee of elected Members, or its decisions and opinions. We cannot order councils to take such actions, so could not achieve the outcome Mr X seeks.

10. Mr X says the Council has failed to reply to an FOI request he has made about the planning matter. It would be reasonable for Mr X to refer this issue to the ICO. The ICO is the body specifically created by national government to deal with FOI and data protection matters, including councils’ responses to FOI requests. It is the body best placed to consider this part of his complaint. If Mr X is dissatisfied with the ICO’s decision, he would also have a formal right of appeal to the First Tier Tribunal dealing with information rights.

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Final decision

11. We will not investigate Mr X’s complaint because:
• the proposed development has not yet been granted planning permission and we will not investigate a council’s planning process while it is ongoing; and
• we cannot determine whether there has been a significant personal injustice caused to Mr X stemming from the planning process until it has ended; and
• were we to receive a complaint on the same issues from him after the permission is granted, we would not have enough evidence of fault in the planning process, or of the matter causing him a significant personal injustice, to warrant an investigation, and could not achieve the outcome he seeks; and
• it would be reasonable for him to refer his complaint about the FOI issue to the ICO.

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Investigator's decision on behalf of the Ombudsman