Summary: Mr X complained his objections to a planning application were not considered by the Authority before it made its decision. There was evidence fault causing injustice to Mr X, which was remedied by the authority’s apology. The authority has accepted our recommendations to avoid further recurrence of the fault.

The complaint

1. Mr X complained the Authority failed to take account of his objections to a planning application before it made its decision.
2. Mr X said because of this, he was prevented from having his say and he also incurred costs seeking advice from a solicitor.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I read the complaint and discussed it with Mr X and an Authority officer. I read the Authority’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave Mr X and the Authority an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Authorities should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Authorities may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Not all planning decisions are made by Authority planning committees. Authorities may delegate decisions to planning officers to make, that are restricted to circumstances set out in delegation schemes. Delegation schemes are found in an Authority’s constitution.
12. A record of material planning considerations relating to the key issues is usually found in a planning case officer’s report. However, some authorities include a record of the main planning considerations in the ‘informatives’ section of decision notices.
13. Decisions made by officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on Authority websites, as soon as is practicable after the decision is made.
14. The 2014 regulations apply to a decision that has been delegated to an officer, if it:
• grants a permission or licence;
• affects the rights of an individual; or
• awards a contract or incurs an expense that materially affects the Authority’s financial position.
15. The 2014 regulations require that any such decision should be made available to the public:
• at the Authority offices;
• on the Authority’s website, if it has one; and
• by any other means the Authority considers appropriate.
16. The written records should include the following information:
• the date the decision was made;
• the record of the decision, its reasons and the background papers relied on;
• details of alternative options, if any considered and rejected; and
• a record of any relevant conflict of interest.
17. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ uses, which means a use that is ‘of its own kind’ or ‘unique’.
18. Planning permission is usually required to change a use from one class to another.

Our guidance on recording planning decisions

19. In September 2018 we published “Guidance for planning practitioners”. This set out our expectations for how authorities need to consider and record decisions on planning. It explained why we may consider failure to set out a contemporaneous record of considering any material planning matter, including comments from the public, as fault. We expect authorities to ensure comments from local people are summarised in their reports so people can see what was considered.

What happened

20. Mr X lives next to a public house. The Authority received a planning application to change staff accommodation in the pub to hotel letting rooms. Mr X said that even before the proposed change, there were already problems that affected him, and he thought the change would make things worse.
21. The Authority publicised the proposal by putting up a site notice about the application, and Mr X responded by sending his comments. Mr X objected to the development because of its impact on a number of issues, which were:
• lack of onsite parking;
• delivery vehicles were already parking on double yellow lines; and
• inadequate waste storage.
22. The Authority’s planning case officer wrote a report. The case officer report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from consultees, and a statement that no responses from the public had been received;
• a summary of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including a lack of onsite parking spaces. The case officer said the proposed use would have a negligible impact on demand for public parking spaces available in the area; and
• the officer’s recommendation to approve the application, subject to planning conditions.
23. A senior officer approved the application using delegated powers.
24. Mr X complained that his objections were not considered before a decision was made. In response to the complaint, the Authority accepted there had been an ‘administrative oversight’, as it was factually wrong to state there had been no comments from the public. The Authority apologised for its error but said its officer had been aware of his concerns and had taken them into account. The Authority said its officer decided Mr X’s objections were not significant factors in making its decision, so it had not included them in the report.
25. The Authority also said that Mr X’s objections would not have made any difference to its judgement about the change of use application. This was because both uses were residential in nature, so it was unlikely the change would lead to a significant intensification of the use of the building.
26. Mr X said he found the Authority’s explanation unsatisfactory, so he sought legal advice from a solicitor. Mr X would like the Authority to:
• quash the permission and reconsider it properly;
• acknowledge its fault and ensure it does not happen again;
• compensate him for his costs.

Comments from Mr X and the Authority

27. In response to an earlier draft of this decision, Mr X said:
• Cases like this, where the Authority had acted outside its powers, should be assessed for vulnerability to challenge by way of judicial review by a suitably qualified individual.
• Other Ombudsman cases where fault was found to cause injustice resulted in partial repayment of professional fees and small sums for distress and inconvenience. If the Authority had complied with proper planning procedure, he would not have incurred any costs. He had a right to comment and for his comments to be considered, free of charge, but that did not happen.
• He had expected the Authority’s complaints process to be fair and unbiased, but he had not found it to be so. This was why he had taken legal advice on what had happened.
• The Authority has never acknowledged the full extent of the fault. Had it done so and already implemented recommendations of the kind we suggest, it would not have been necessary for him to bring his complaint to the Ombudsman.
28. In response to an earlier draft of this decision, the Authority said it believed there was evidence to show Mr X’s comments were considered before a decision was made. It said:
• When Mr X submitted his comments, the Authority sent him an acknowledgement letter that said ‘your comments will be taken into account when the application is considered…’
• In its view, the fact that the case officer’s report mistakenly said there were no comments from the public, was a minor error that made no difference to the outcome and so caused no harm.
• The case officer’s report does show that onsite parking (one of the issues Mr X raised) was considered.
• One of the issues raised by Mr X, the lack of storage space for rubbish onsite, was not a material planning consideration and this was why there was no reference to it in the report.
• Mr X’s comments were automatically assigned to the relevant application, registered and recorded on its computer database. Before a decision was made, Mr X’s comments were available to read on its computer database.
• The database record’s ‘replies’ tab page which showed Mr X’s comments, also showed responses from officers of other authorities which were considered in the report. The Authority thought it was inconceivable that the planning case officer would not have looked at this page.
• It has apologised twice to Mr X for its ‘oversight’ and has confirmed three times that his comments had been received, were logged onto its system and assured him they had been noted. It said given the remedial action already taken, it simply cannot agree that the fact Mr X cannot be certain his comments were considered constitutes an injustice, let alone a significant injustice.
• It was surprised Mr X’s complaint was referred for investigation and that we consider the injustice caused to him to be significant. It monitored the Ombudsman’s weekly complaint responses and had noticed similar cases were consistently not investigated because the Ombudsman decided they lacked significant personal injustice.
• It took complaints handling seriously and will do all in its power to resolve a complaint before referring complainants to the Ombudsman. Because of its diligence, in 25 years, it has not had a final decision finding of fault upheld against it.

My findings

Finding of fault

29. Mr X complained the Authority did not take account of the objections he made to a planning application. I do not know whether the Authority considered the comments he made. However, the case officer’s report states there were no comments on the application from the public, even though Mr X had objected to it. This statement is factually incorrect and is therefore fault.
30. But for the fault, I think it likely the Authority would have made some direct reference (albeit briefly stated) to Mr X’s comments and the issues he had raised. There should be evidence to show Mr X’s comments were considered and what the authority made of them.

Injustice to Mr X

31. When we find fault, we need to determine whether it caused an injustice we can remedy. We may consider an injustice to an individual complainant or to individuals who have not complained. We may also consider remedying an injustice that might occur if a fault we find recurs in future. Our investigations need to be proportionate, and so we only make a recommendation if we consider the injustice to be significant.
32. Although it made no direct mention of Mr X’s objections, the case officer report did cover one of the issues he was concerned about. The other issues, lack of space for refuse storage and deliveries, were not mentioned, but even if they had been, I cannot say it would be more likely than not to have led to a different decision.
33. This is because the change of use, while requiring permission, still maintains residential use, but instead of housing staff, accommodation would be let to visitors. Levels of waste and storage needs may be more, or less. As parking areas are already restricted, it is difficult to say deliveries will be more of an issue than before.
34. The case officer report should have demonstrated these issues had been considered and what the Authority had made of them. If that had happened, Mr X might not have complained, and we would be saying there was no fault.
35. However, I do consider the fault caused a significant injustice to Mr X. He made the effort to put his views forward to the Authority, and he expected to have them considered before a decision was made. There should have been evidence to show this had happened. He was disappointed and frustrated when he read the case officer’s report, which said no public comments were made. He thought his views had been ignored and that he had wasted his time. He is dissatisfied with the Authority’s explanation and would like more than the apologies already offered.
36. Mr X would like:
• an independent assessment of vulnerability to challenge by way of judicial review;
• compensation for his legal costs; and
• compensation for distress and inconvenience.
37. We are an independent review body and can recommend remedies where we find fault in the decision-making process. We cannot make declarations on legal issues and do not offer legal advice, nor can we speculate on what a court would find if it decided a case. If an individual wants an assessment of a public body’s vulnerability to challenge by way of judicial review, they may, if they choose to seek legal advice.
38. Our position on compensation for professional fees is that we only recommend a payment if there was little or no choice other than incurring them. Mr X thought the Authority’s explanation was inadequate, unfair, and biased. He says this was why he chose to seek legal advice. This was a choice he made. He did not need to seek legal advice to complain to us.
39. My view is that the personal injustice to Mr X has already been satisfactorily remedied by the Authority’s apologies. I have considered our guidance on remedies, but I am not persuaded to add any additional remedy recommendations for him.

The Authority’s response and potential injustice to others

40. The Authority expressed disappointment with an earlier draft of this decision. It thought we should not have investigated the complaint, because there was no personal injustice to Mr X, and it claimed there is evidence to show his comments were indeed considered. It does not agree with my judgement, that the injustice is significant.
41. We make our decisions on the balance of probabilities. We consider, where evidence and opinions differ, what is most likely to have happened. I have carefully considered what the Authority has said, but I do not know whether Mr X’s comments were considered. I accept Mr X received an acknowledgement letter, that his comments were on the database, and the case officer report addressed one of the issues he raised. But these actions could have happened automatically, coincidentally or without the case officer reading and considering what Mr X had said.
42. The most persuasive argument the Authority has put forward is that the parking issue was considered, but this issue along with other highway related matters, might well have been considered anyway regardless of whether it had been raised by a member of the public. This is because where any development site has an access onto the highway, planning authorities must decide whether it is likely to result in impacts such as reduced safety, or increased traffic. The report will then show what the case officer’ judgement was on these issues, and if it was consulted, the advice it had received from the Highways Authority.
43. We do not need a lot of evidence to show consultees’ comments were properly considered. An acknowledgement in a report of the fact there was a comment followed by a summary and brief appraisal of the main issues raised by the individual will suffice.
44. As well as saying Mr X’s comments were considered, the Authority also said his comments about refuse were not included in the report because they were not material to its decision to approve the application. However, I note that the report did mention a lack of onsite parking spaces, and it was not considered material to its decision to approve.
45. We regularly receive complaints from members of the public who cannot see evidence in the records to show their objections were heard or considered: we expect to find documentary evidence that shows that they were. We sometimes decide not to investigate complaints of this kind where we consider the level of personal injustice is not sufficient to warrant our involvement. But this is our decision to make, based on our assessment of the particular circumstances of each case. The courts have confirmed we have wide discretion to decide what cases to investigate. Whether there is fault and injustice caused by fault are matters for the Ombudsman alone to decide.
46. I am concerned the Authority’s response to my earlier draft decision shows it considers its actions were, if flawed, insignificant. If the same fault happens again, it could lead to further complaints, disappointment, frustration and confusion. It is important the public can see that their concerns are heard and properly addressed, so I will recommend action to avoid recurrence of the fault.

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Agreed action

47. To avoid recurrence of injustice from the fault I have found, the Authority has agreed to:
1. correct its records in its planning file and on its website to show objections from the public were received, what those objections were and what it made of them. This could be done by adding an update or addendum report to the planning file and website record. This should happen within two weeks from the date of this decision;
2. consider its practices and procedures, in light of what has happened and make any changes considered necessary to prevent recurrence of the failure to document valid objections. It should do this having regard to our published “Learning from complaints: Recording planning decisions” report. This review should be completed within three months from the date of this decision;
3. inform its planning committee of what has happened and any changes it made as a result of its practice and process review. This should happen at the next available planning committee following the outcome of the review set out in the paragraph above. This should happen within 2 months from the date the review is completed.
48. The Authority should provide us with evidence it has complied with the above actions.

Final decision

49. I found fault causing an injustice. I completed my investigation because the Authority accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman