Summary: Miss B has complained of administrative failings in the way the Council considered a planning application for a major housing development near her home. The Ombudsman has found minor fault in the process, but this did not affect the Council’s decision or result in significant injustice.

The complaint

1. Miss B complains of administrative failings in the way the Council handled the reserved matters planning application for a large housing development near her home. She says the Council failed to adhere to its own validation requirements and its own guidelines and provided a poor service to residents. She considers that, as a result, she and other residents were put to unnecessary time and trouble in considering and responding to the proposals. She also considers that there were failings in the way that the Council considered the application which mean that the Council’s decision was not properly reached.

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What I have and have not investigated

2. I have investigated Miss B’s complaints about the Council’s handling of the application insofar as they have been raised through the Council’s complaints procedures.

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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 ad-verse 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)

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How I considered this complaint

4. I have considered Miss B’s written complaints and the Council’s responses and discussed her complaint with her. I have reviewed the planning papers available on the Council’s website and relevant legislation and guidance. I have sent Miss B and the Council a draft decision and have considered Miss B’s comments before making a final decision.

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What I found

Legal and administrative background

Planning permission

5. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions. It may also be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.

Outline planning applications and reserved matters

6. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.

Decision making and material considerations

7. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
8. Material considerations relate to the use and development of land in the public interest. They include issues such as overlooking, traffic generation and noise. Government statements of planning policy, such as the National Planning Policy Framework (‘NPPF’) are material considerations.
9. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities). It is for the decision-maker to decide the weight to be given to any material consideration in determining a planning application.

Validation of planning applications

10. When validating applications, certain documents form part of national statutory requirements. In addition, the Local Planning Authority, in this case the Council, may request further materials as set out in a ‘Local List’.

Publicity for planning applications

11. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a councils ‘Statement of Community Involvement’.

Officer reports

12. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed.
13. The courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Background to the complaint

14. Miss B lives close to two greenfield sites on land identified for housing in the Council’s adopted Site Allocations Plan (‘SAP’). The land to be developed comprises grassland, scrub, and agricultural land, and is to be broken into four parcels for development. Between the two sites is an area of woodland allocated in the SAP for greenspace.
15. In 2020, the Council granted outline permission for a large residential development, subject to conditions and the signing of a legal agreement. The permission was for the principle of developing the site, and the proposed accesses, with other matters reserved.
16. In 2022, the Council then approved the reserved matters application, comprising the erection of dwellings, access within the site, garaging, parking, landscaping, and public open space.
17. In both cases, residents were able to submit comments and objections which were summarised in the detailed reports that planning officers prepared. These reports, together with the plans and supporting papers were available to members of the respective Plans Panels which considered the applications.
18. Members deferred decisions on both the outline and reserved matters applications to allow for the provision of additional information. In connection with the reserved matters application, some members undertook a site visit, and site photos and plans were displayed and referred to during the Panel’s discussions.
19. Miss B was dissatisfied with the process by which the Council considered the reserved matters application and complained to the Council. The Council considered her complaint through its two-stage complaint process but did not uphold her complaint. Miss B then complained to the Ombudsman.

My assessment

20. Miss B has raised concerns about the way the Council considered the reserved matters application and has suggested steps she considers the Council should take to improve its procedures. I have considered her concerns and set out my views as to whether there has been fault by the Council and, if so, whether this has caused injustice.
21. It is not, however, the Ombudsman’s role to answer every question a complainant may have about a Council’s actions. It is also not for the Ombudsman to make recommendations where there has been no finding of fault.

Validation Checklist

22. Miss B says that the Council did not follow its own Validation Checklist for major development. She says there was no:
• Statement of Community Involvement;
• Proof of Biodiversity Net Gain; or
• Visual Representations.

Statement of Community Involvement

23. Miss B considers that the applicant should have submitted a stand-alone Statement of Community Involvement which included details of consultations and a summary of responses, and which showed how the design/planning process had taken the responses into account. She considers the information in the Design and Access Statement to be insufficient.
24. There is no statutory requirement for pre-application consultation. However, this is this is encouraged in the Government’s NPPF.
25. The Council’s Validation Requirements also includes a Statement of Community Involvement as one of its local requirements. Section 2.2.7 states: “When applicants have consulted with communities before making their application, we recommend that they produce their own Consultation Statement to submit with their application, setting out what engagement took place, what the responses were from the public and how the scheme was amended to take into account these responses.”
26. The applicant submitted a Design and Access Statement with the application. Section 5 set out the consultation undertaken, explained that the applicant had worked with officers to develop the proposed layout, and that information on the feedback from residents was addressed elsewhere in the proposals.
27. The officers’ reports summarised the responses from consultees and residents and set out officers’ views as to whether the proposals complied with planning policy, so residents could see how their concerns had been considered.
28. Residents’ concerns about the absence of a stand-alone Statement of Community Involvement were also raised at the first local Plans Panel meeting, and the applicant’s representative described the consultation undertaken.
29. I see no fault here. The Statement of Community Involvement is a recommendation rather than a legal requirement and it was for officers and members to decide if they were satisfied with the level of information provided.

Proof of Biodiversity Net Gain

30. Miss B says that there should be publicly available documentation to prove that a minimum 10% biodiversity net gain will be achieved in accordance with the DEFRA Biodiversity Metric.
31. The 10% net gain is not yet mandatory in law. However, the Council’s Core Strategy Policy G9 requires a biodiversity net gain from development, and the NPPF requires net gain to be achieved in a measurable way.
32. The Council’s website explains that it seeks a minimum 10% on-site net gain through the use of the Defra approved biodiversity metric. This should be delivered on-site but, if this is not possible, off-site compensation may be permitted. It expects all applications to conform to this guidance to provide consistency of information on which to make decisions. If the Defra biodiversity metric is not used, the Council still requires all applications to demonstrate how they are achieving net gain in a measurable way.
33. The outline approval contained conditions requiring, before the commencement of development, the submission and approval in writing of:
• a scheme for the quantitative and qualitative enhancement of the landscape, recreational and biodiversity value of the central area of land to include long term design objectives, a management plan and management responsibilities, phasing, and maintenance programmes; and
• a Biodiversity Enhancement and Management Plan (‘BEMP’)
34. The Council explained in its stage 2 complaint response that improvements to biodiversity are covered by the outline approval and that the two relevant conditions relating to this have been met.
35. This was correct insofar as the applicant had submitted documents in respect of the relevant conditions, namely a BEMP and a Landscape and Ecological Management Plan (‘LEMP’). However, when considering the subsequent application to discharge the conditions, the Council did not consider the information provided sufficient. Instead, it asked the applicant to submit a single Enhancement and Management Plan for the whole area of public open space and to provide further supporting information.
36. The application to discharge of these conditions has not yet been decided, so no final decision has yet been made on this matter. Once the Council has agreed to discharge those conditions, it will be open to Miss B to complain to the Council if she considers that there has been fault in the way it has considered this matter.

Visual representations

37. The Council explained in its stage 2 complaint response that the Design and Access statement contained visual representations and others were provided for the Plans Panel presentation.
38. I see no fault here. It was for the Council to determine if it had sufficient information to assess the application. It was open to the Council to request further information if it was dissatisfied with that provided.

Missing documents / Planning Statement

39. Miss B says the submitted Design and Access Statement misleadingly refers to documents such as a Statement of Community Involvement and a Planning Statement which were not submitted with the reserved matters application. She says it would be usual for a Planning Statement to be submitted in such cases and considers that this was necessary for the Council to properly assess the application. She says residents were put to time and trouble trying to establish what documents were missing.
40. There was no stand-alone Statement of Community Involvement or Planning Statement submitted with the reserved matters application. However, the applicant had submitted a Planning Statement with the outline application.
41. It is unfortunate that the reference in the Design and Access to documents caused confusion over what had been submitted, but I would not expect the Council to correct every inconsistency in documents the applicant submitted.
42. However, the officer’s reports for the reserved matters application also stated that a Statement of Community Involvement and a Planning Statement had been submitted. This was fault as it would have resulted in confusion for residents about the documents submitted and potentially for the Panel.
43. That said, I do not consider that this has caused significant injustice. The Council had uploaded the main planning documents to its website, so these were available to residents. Residents had the opportunity to submit written comments and to speak at the first local Plans Panel meeting. So they were able to and indeed did raise concerns about the adequacy of the supporting materials.
44. As to the absence of a Planning Statement, the Council explained in its stage 2 complaint response that “A Planning statement does not form part of the requirements of the validation criteria”. So it was for the Council to decide whether a further Planning Statement was necessary for the reserved matters application. Planning officers were satisfied with the information submitted and set out their analysis in the respective reports, so I do not consider that this affected the advice provided to members.
45. Members were able to consider the adequacy of the information before them and deferred their decision pending the submission of further information they considered necessary. I do not therefore consider that this lack of clarity over the documents submitted affected the Council’s decision.

Revised Design and Access Statement

46. Miss B considers the Design and Access Statement to be of poor quality. She says that residents asked by email if a revised Design and Access Statement was submitted but received no response.
47. In respect of the quality of the Design and Access Statement, this is only one of numerous supporting documents and it was for the Council to decide whether it had sufficient information to evaluate the proposal.
48. As to residents’ questions about a revised draft of the Design and Access Statement, this was mentioned but not addressed in the second local Plans Panel report. However, the Council has explained in its complaint responses that the officers had already requested the information considered necessary to appraise the application, which indicates that the Design and Access Statement on the Council’s website was that used.
49. I see no fault here. The Council received numerous comments on the application. In the case of a major application of this nature, it is not realistic to expect officers to respond individually to every email, but the main issues were summarised in the officers’ reports.

Backdated planning documents on the Council’s website

50. Miss B says that planning documents uploaded to the Council’s website were backdated on multiple occasions. She says this gives the false impression that residents had the full 21-day consultation period which she considers was necessary for residents to consider the documents in such a complex case.
51. The Council has explained that documents are dated the day they are received but there may be a delay before they are uploaded to the Council’s website; hence the difference in dates. That said the case officer would have seen the documents when assessing the application, so these would have formed part of the decision-making process.
52. Moreover, I note that such concerns were raised directly with the Council. In response, the report for the second local Plans Panel meeting explained that documents uploaded after the posting of the final site notices relate to supplementary information and small amendments and these would not individually have triggered the requirement for further consultation.
53. I see no fault here. A major application will inevitably involve the submission of numerous documents through the planning process, and these may not always be uploaded immediately. It is also not uncommon for some documentation or revisions to be submitted late in the process.
54. It is clearly important for the Council to take into consideration the views of the general public, but the Council consulted residents on three separate 21-day periods through the reserved matters application, so there were several opportunities for residents to set out concerns.
55. It was then for planning officers to evaluate the application and to provide professional advice to decision-makers. I consider the key issue is whether this information was included in the decision-making process, as it was here.

Site notices

56. Miss B says there were four parcels of land, but site notices were located in areas where few people would see them.
57. In this case (Major development, e.g., ten or more dwellings), the requirement was for a site notice, publication in a local newspaper, Parish and Town Council notification, and the application available online in libraries. The Council has explained that notices were placed on three occasions adjacent to the four parcels of land.
58. I see no fault here – the Council has carried out the statutory notification.

Lack of feedback from LCC to the public.

59. Miss B complains that the Council did not inform residents of the second local Plans Panel meeting.
60. I see no fault here. The application was deferred at the first meeting and advertised in the usual manner as part of the agenda for the subsequent meeting.

Lack of consideration for green space policy G3

61. Miss B complains that the Council has not properly demonstrated how it considered Core Strategy Policy G3. She says that policy G3 sets out a sequential approach for the applicant to follow, and that the applicant failed to provide information on the different types of green space and their size, but only provides a simplistic ratio to calculate provision based on the number of houses. She says there is a deficiency in provision for outdoor sports and allotments. She says the officers’ reports do not provide details of her objections but simply refer to the quantum of green space and do not explain how they decided the provision was acceptable.
62. Policy G3 states: “The following open space standards will be used to determine the adequacy of existing supply and appropriate provision of new open space…”. The policy provides a table showing the types of green space, the quantity per thousand people, its accessibility and quality.
63. The Council used policy G3 in formulating its Site Allocations Plan. The Green Space Supporting Information for the SAP explained that “During the preparation of the Site Allocations Plan, assessments of the quantity, quality and accessibility of green space were undertaken to determine whether the standards in Policy G3 were being met”.
64. The text accompanying Policy G3 explains that “The standards of Policy G3 including accessibility distances can be used identify particular deficiencies applicable to each development site and this can help determine what types of green space ought to be provided”. It also says “Determining the appropriate location of green space within a development will be a matter for discussion depending on the circumstances of the locality, site and development proposed”.
65. The Supporting Information contains tables showing the type, quantity, and quality of all existing Green Space. It sets out the surpluses and deficiencies of existing Green Space by ward. It also includes maps showing the accessibility of the different types of Green Space.
66. The Council used this to consider the suitability of proposed development sites to be included within the SAP and the proposed housing each site could support. It also provided site specific recommendations. The SAP was then reviewed and approved by the Planning Inspector.
67. Policy G4 requires residential developments of 10 dwellings to provide specified quantities of on-site green space (based on dwelling size) or where this is unachievable on-site, equivalent off-site provision and/or financial contributions.
68. In approving the outline application, the Council applied a condition requiring details of the quantum of green space in accordance with Policy G4 and a scheme detailing the siting, layout, landscaping, maintenance, and long-term management of the open spaces.
69. The Design and Access Statement set out the quantum of open space required based on Policy G3 and the quantum of green space based on the proposed housing mix as per Policy G4, and the proposals for recreational spaces.
70. Officers considered that the open space including recreational spaces were appropriate to the needs of the development and acceptable with reference to policy G3. They also considered that the proposed areas of green space were sufficient in quantity and quality to comply with policy G4, though the final details would be subject to the conditions in the Outline application.
71. I consider that the Council had regard to Policy G3 (and G4) through the planning process, both in respect of the quantity and quality of existing provision and the quantity, type and quality of what has been proposed.
72. Miss B has referred to a deficiency of certain types of green space, but there is no requirement for each site to provide every type of green space. Rather, it is for the Council to decide what is suitable having regard to the specific circumstances of each site. Given this, I see no evidence of fault in how the Council has considered these matters to date.
73. The applicant has applied to discharge the condition governing the quantum and details of green space, and the Council’s Landscaping Team has submitted comments on this. However, the Council is yet to discharge this condition, so there is no final decision on those details. Once the condition is discharged, it will be open to Miss B to complain to the Council if she considers there has been fault in the way that decision has been reached.

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Recommended action

74. The officer’s report misleadingly referred to documents that were not submitted as part of the application. The Council should, within one month of the decision date on this complaint, remind planning officers to check the consistency of committee reports with the supporting documentation provided, particularly in the case of major developments with multiple supporting documents. It should provide us with evidence it has complied with the above actions.

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Final decision

75. I have closed my investigation on the basis that there has been only minor fault in the consideration of the application, and this has not resulted in significant injustice.

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Investigator's decision on behalf of the Ombudsman