Summary: We will not investigate this complaint about the Council’s determination of a planning application. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence to suggest fault in how the Council considered the application is likely to have affected the planning decision, and we cannot achieve the outcome the complainants are seeking.

The complaint

1. The complainants, a group of local residents, say the Council should not have granted planning permission for a development on an ecologically sensitive site. In particular, they say the Council:
• Approved the development behind closed doors whilst their complaint was ongoing.
• Accepted inadequate wildlife surveys.
• Allowed the applicant to over-fell trees on the site.

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The Ombudsman’s role and powers

2. The Ombudsman can 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 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.

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

3. 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 procedural fault in the way the decision was reached. If there is evidence of fault in the process, we consider whether this is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

4. But 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)

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How I considered this complaint

5. I considered information provided by the complainants representative and the Council, which included their complaint correspondence.
6. I also considered our Assessment Code, and information about the planning history of the site available on the Council’s planning portal.

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My assessment

7. With reference to paragraph 4 above, any parts of the complaint about the Council’s handling of previous applications for the site in 2017 and 2019 would be regarded as late. I see no reasons to exercise discretion to consider any concerns about these applications now.
8. And whilst I appreciate the complainants disagree with the Council’s more recent decision to grant planning permission for an alternative development, the Ombudsman does not provide a right of appeal against it. Rather, our main role is to review the process by which planning decisions are made, and to consider if any fault we find is likely to have affected the outcome.
9. There is not enough evidence to suggest any fault in the handling or determination of the application here is likely to have influenced the Council’s decision. The complainants have therefore not been caused a significant injustice as a result of the alleged faults by the Council. In reaching this view, I am mindful that:
• Councils delegate most planning decisions to their officers, and the Government sets targets for most types of planning application to be determined within 8 weeks. There is no requirement to delay determination if an associated complaint has been submitted.
• The principle of demolishing the ‘non-designated heritage assets’ on the site and erecting a new building were established by the earlier applications, and I understand they remain extant.
• The Council sought comments from consultees, including Conservation, Natural England, Trees, and the Merseyside Environmental Advisory Service.
• The comments/objections from residents and the Merseyside and West Lancashire Bat Group are summarised in the delegated report.
• The report goes on to consider (amongst other issues), the impact of the development on the Green Belt, residential amenity, ecology, designated sites, and landscaping. It was for the Council, as decision maker, to decide the weight to be given to the material considerations/evidence in determining the application, and it was entitled to reach an ‘on balance’ professional judgement, even if the complainants disagree with it.
• The planning permission includes conditions requiring the submission of a construction environmental management plan, tree protection details, and a landscaping scheme, as well as the installation of a bat box.
• The Council has no power to take planning enforcement action in relation to a laurel hedge along the boundary, and Government guidance says planning conditions should not be used to require compliance with other regulatory regimes. In that regard, the complainants may wish to consider pursuing action under the High Hedges Act instead.
• The trees previously felled on the site were not protected and were removed prior to the commencement of the previously approved development, so the Council was unable to control these works.
10. Finally, we have no power to direct the Council to revoke the planning permission, so we cannot achieve the main outcome the complainants are seeking.

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Final decision

11. We will not investigate this complaint because there is not enough evidence to suggest any fault in how the Council considered the planning application is likely to have affected the planning decision, and we cannot achieve the outcome the complainants are seeking.

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Investigator's decision on behalf of the Ombudsman