Summary: Mrs X complains the Council failed to consult with the Coal Authority and misrepresented its views in its Officer Report. She also complains the Council misadvised the Planning Committee, affecting how the Committee considered the application. We have not found the Council misadvised the Planning Committee. We have found the Council at fault for failing to formally consult with the Coal Authority, but we do not believe this caused a significant injustice. We have recommended the Council act to improve its services.

The complaint

1. Mrs X complains the Council:
1. failed to consult the Coal Authority as a statutory consultee when deciding a planning application and misrepresented its views in its Officer Report; and
2. misadvised the Planning Committee, affecting how the Committee considered the application.
2. Mrs X says the Council’s actions led to the Planning Committee deciding an application based on inaccurate information. She also says the Council discounted her valid objections and its actions have made her reluctant to take part in local government matters.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

6. I discussed the complaint with Mrs X and considered information she provided.
7. I considered information the Council provided about the complaint.
8. Both Mrs X and the Council were able to comment on draft versions of this decision. I considered any comments I received before making a final decision.

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Relevant legislation, guidance and policy

Outline planning applications and reserved matters

9. Outline planning permission establishes the acceptability of a development, subject to latter agreement to details of ‘reserved matters’.
10. Reserved matters may relate to access, appearance, landscaping, layout, and scale of the development.
11. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.

Approval/Discharge of Conditions

12. Planning conditions are often applied to the grant of planning permission. These limit and control the way in which the planning permission must be implemented. For example, these may specify the nature of the building work, hours of opening, length of time permission is granted for, or the necessary assessments which must accompany an application.
13. Applicants can apply to have conditions discharged, or approved, so that the development can begin. Applicants will be required to detail how they intend to meet the conditions, or provide supporting information to demonstrate compliance.

Statutory consultees

14. Planning law prescribes circumstances where local planning authorities are required to consult specified bodies before making a decision on an application.
15. Relative to this complaint, the Coal Authority should be consulted on “any development which involves the provision of a building or pipeline in an area of coal working notified by the Coal Authority to the local planning authority.” (The Town and Country Planning (Development Management Procedure) (England) Order 2015, Schedule 4)

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What I found

Summary of events

16. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
17. In July 2022, Mrs X complained to the Council about how it had managed a planning application for a proposed major housing development. The proposed layout of this development included properties, gardens and part of a road falling within the zone of influence of a mine shaft. Mrs X says the developer was not proposing to stabilise the mine shaft as part of the development. In her submission to the Council, Mrs X:
1. said her complaint was about the reserved matters application for this development, approved by the Planning Committee earlier in July 2022.
2. said the Council had appeared not to have consulted the Coal Authority about the application, despite the Coal Authority being a statutory consultee. Mrs X said the Coal Authority had since told the Council it would have concerns about the layout of a development within the theoretical zone of influence of a mine shaft. Mrs X said the Coal Authority had also told the Council that proposals for ground stabilisation were not satisfactory and the mine shaft’s zone of influence might extend further than documented.
3. said the Officer Report produced for the committee was inaccurate. The Council had listed the Coal Authority as a consultee in the report and set out its response. Mrs X said the Coal Authority’s response in this case related to the conditions discharge application, rather than the reserved matters application. Mrs X said it was misleading to say the Council had consulted the Coal Authority on the reserved matters application.
4. said the Council should have deferred the application to investigate these concerns, but this had not happened. Mrs X said she had raised concerns during the meeting, but officers dismissed them. Mrs X said officers had not presented relevant information to the Planning Committee, with the effect of misleading the Committee.
18. The Council responded to the complaint in August 2022, setting out Mrs X’s concerns and the outcomes she sought. Mrs X wanted the Council to take disciplinary action against specific officers, revoke planning permission, and for the Planning Committee to decide the application again.
19. The Council said it could not revoke planning permission through the complaints procedure. The Council said it was open to Mrs X to challenge the planning decision through judicial review. The Council also said disciplinary matters were internal and it would not disclose to complainants what actions it took in such matters.
20. Responding to the substantive points made in Mrs X’s complaint, the Council:
1. said it had reviewed the evidence and did not uphold Mrs X’s complaint. The Council said planning applications could consist of several separate submissions, such as outline approval, reserved matters approval, discharge of conditions, and others. The Council said it was not practical, or necessary, to have documents from related applications on every application file. It said the documents Mrs X referenced in her complaint had been available to the public since December 2021 and May 2022.
2. said officers had told the Planning Committee the Coal Authority did not believe the proposed methods of ensuring safety for properties on the site were satisfactory. The Council said it had also explained whether there was satisfactory mitigation of ground conditions was a matter for the conditions discharge application.
3. said planning permission could not be implemented until the developer addressed all necessary matters. It said this meant unless the Coal Authority agreed, it could not discharge the relevant planning condition.
4. said Mrs X should consider its exchanges with the Coal Authority in context. The Coal Authority had stated it would have concerns should there be development within the theoretical zone of influence of the mine shaft. The Council said its Officer Report mentioned this in the “other matters” section, confirming the developer would need the Coal Authority’s consent. It said Committee members had discussed this at the meeting. It said the Coal Authority had therefore provided a consultation response and did not uphold this part of Mrs X’s complaint.
5. said the Committee had discussed the matter at length. It said plans displayed during the meeting included annotations setting out the location of the mine shaft. The Council conceded these plans did not show the mine shaft’s zone of influence, but said the slides provided an outline of the proposal for Committee members. It said the presentation did not need to include the full application documentation. It said a councillor had asked about the zone of influence during the meeting and an officer had clarified where this was.
21. Mrs X escalated her complaint in September 2022. The Council provided its final complaint response in November 2022. I have summarised the key points of the Council’s reply as follows:
1. Mrs X said there had been no consultation with the Coal Authority. The Council accepted it had not formally written to the Coal Authority on the reserved matters application, but said this would not have affected the Committee’s decision. The Council said this was because the Coal Authority had provided comments on the reserved matters application as part of general exchanges with the Council. The Council said the Coal Authority’s concerns were better addressed through the discharge of condition application that both parties were already considering.
2. The Council said senior officers were entitled to advise the Committee on the relevance of specific comments or concerns.
3. The Council accepted the timescale for judicial review had lapsed when it issued its first complaint response. It apologised for the implication this choice was still available for Mrs X to explore.
4. The Council addressed other concerns Mrs X had about how it had handled the complaint at the first stage of its complaints procedure.
22. In December 2022, the developer submitted a revised reserved matters application, proposing changes to the development. The Council carried out a consultation on the application. As part of this, it wrote to the Coal Authority, seeking its views.
23. The Coal Authority responded to the Council in late December 2022. It stated it had a “Substantive Concern” about the proposal. Referencing the consultation carried out for the previous reserved matters application – that which Mrs X had complained about – the Coal Authority wrote:

“The Coal Authority was not formally consulted by the Council regarding (the previous reserved matters application). However, you will be aware that we made reference to the reserved matters application in our consultation response letter of 23 June 2022 in respect of (the condition discharge application).”

24. The Coal Authority went onto state:

“We raised concerns regarding the justification for the approach set out in the report to addressing the risk posed by the mine shaft. …We would have concerns should the application propose a layout which includes built development within the theoretical zone of influence associated with the recorded mine shaft.”

25. The Coal Authority said it understood the Council later approved a scheme of development that included built development “within the area of potential instability,” despite the concerns it had raised. It said this provided the applicant with a fallback position. Regarding the revised reserved matters application, the Coal Authority said it would expect the applicant to show how they would address the potential instability risk posed. It said it would object to the reserved matters submission until the applicant satisfactorily addressed this.
26. Mrs X referred her complaint to the Ombudsman in January 2023.

Relevant events during the investigation

27. In January 2023, the Coal Authority wrote to the Council again. In summary, it said it had been in direct contact with the applicant and had obtained further information about the mitigation measures proposed. Taking account of the applicant’s mitigatory proposals and fallback position, the Coal Authority said it would withdraw its objection to the reserved matters application. It said this withdrawal was subject to the Council ensuring the developer included the recommended mitigatory measures in the development.
28. In May 2023, the Council issued a discharge of condition notice. This notice confirmed the applicant had undertaken further detailed site investigations related to the possible presence of the coal mine. The notice stated:

“…the Coal Authority has confirmed that it is satisfied that every practicable step to find the mine entry has been carried out and that there was sufficient proof, combined with the initial mitigating circumstances to correctly query the existence of this mine entry. The mine entry… has now been deleted from the National Coal Database.”

Analysis

Complaint the Council misadvised the Planning Committee about reserved matters

29. We do not investigate the professional conduct or behaviour of individual members of staff, nor would we recommend the Council take disciplinary action against specific officers. Our role is to investigate the actions of the Council as a single corporate body. To that end, I have considered whether there is evidence to suggest the Council wrongly advised the Committee, affecting the Committee’s decision.
30. Mrs X said she raised concerns about the development being near the mine shaft’s potential zone of influence. She said where properties were positioned on the site, relative to potential ground instability linked to the mine shaft, was a matter of “layout”. However, she said officers told the Committee members these concerns were not relevant to its decision on reserved matters. She said the Council had misadvised the Planning Committee when doing so.
31. The Council said the conditions discharge application, rather than the reserved matters application, would address Mrs X’s concerns. The Council said if the Coal Authority withheld agreement, the developer could not discharge the relevant planning condition and full planning permission could not be implemented.
32. Government guidance on reserved matters says that “layout” refers to the following:

“The way in which buildings, routes and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development.”

33. In the Officer Report, the Council states:

“The reserved matters for which approval is sought are focussed on the acceptability of the layout and design of the properties. This includes the spatial aspects of the layout and scale of buildings and their relationships within and external to the site, along with the appearance of buildings and landscaping of the development in the context of its setting.”

34. The Council’s position appears to be that “layout” concerns the “cosmetic” parts of the development. This includes the size, appearance and orientation of the buildings relative to each other, within the development. I therefore understand the Council believes that concerns about ground stability would fall outside the definition of “layout” defined in the Government’s guidance.
35. The Ombudsman is not a planning appeals body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether the authority can show it had regard for relevant guidance and information when it made its decision. If we consider it has done so, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
36. I recognise Mrs X strongly believes the Council is wrong in its interpretation of the guidance, and that it misadvised the Committee because of this. I cannot decide if the Council’s interpretation was correct; however, I believe the available evidence shows the Council had regard for the guidance when making its decision. I have not found the Council at fault.
37. In comments on a draft version of this decision, Mrs X said the planning condition the Council referenced did not mention the Coal Authority at all, something she said the Coal Authority had also highlighted. I am satisfied the Council and Coal Authority were clear the Coal Authority’s agreement would be central to whether the condition could be discharged. The discussion between bodies took place on this basis. The discharge of condition notice mentioned in paragraph 28 also confirms this.

Complaint about consultation

38. Mrs X said the Council failed to consult with the Coal Authority about the reserved matters application. She also said the Council misled the Committee, by presenting the Coal Authority’s views in the Officer Report in such a way to suggest consultation had taken place.
39. In its final complaint response, the Council accepted it did not formally consult with the Coal Authority. Given this, I have found the Council acted with fault by failing to consult the Coal Authority on the reserved matters application considered by Committee in July 2022.
40. The Council said the lack of consultation would not have made a difference to how the Committee considered the application. However, it accepted formal consultation may have allowed the Coal Authority to provide more detail about its concerns. I believe it would also have allowed the Coal Authority the opportunity to express a formal objection to the reserved matters application. The Council would then have included any such objection in the Officer Report, removing any ambiguity. The views summarised in the Officer Report more clearly related to the Coal Authority’s comments about the discharge of conditions, rather than those expressed about layout.
41. It is possible, but not certain, that formal consultation with the Coal Authority may have affected the Committee’s consideration of the reserved matters application. This causes some uncertainty. I cannot say now what action the Committee would have taken, if any, had the Council properly consulted the Coal Authority at the time. Authorities must have regard to consultee views, but are not necessarily bound by them. A range of outcomes may have followed.
42. However, I believe later events mitigate this potential uncertainty, by showing what the most likely outcome would have been. The developer later submitted a revised reserved matters application, on which the Council properly consulted the Coal Authority in December 2022. This allowed the Coal Authority to formally respond: first raising a substantive concern, but then withdrawing this concern because the developer provided clarity about their mitigation proposals. The Planning Committee was then able to consider the revised reserved matters application with this information.
43. As set out in paragraph 28, the Council later issued a condition discharge notice in May 2023, which confirmed the mine entry had been deleted from the national coal database following further site investigation. It follows that this mitigated any concerns that may have arisen from a layout close to the potential mine.
44. On a balance of probabilities, I think any concerns raised in July 2022 would also have resulted in further clarification being sought and further investigation of the site, leading to the same outcome reached later. I have not therefore found the Council’s fault caused a significant injustice to Mrs X or others in this case.
45. As set out in paragraphs 14 and 15, the law requires councils to consult with named bodies in certain circumstances. Not doing so could potentially cause significant injustice to others, beyond the events considered in this complaint. I have recommended the Council act to prevent this fault from occurring in the future.
46. The Council said it published all the information about the development on its planning portal. While site reports and key application documents are published, the Council does not seem to have a consistent approach to publishing consultee comments. The discharge of condition application shows a consultee comment published from the area Ecology Unit, but comments are not available from all the consultees. This includes the Coal Authority, despite the volume of correspondence exchanged. The Council also inaccurately suggests it did not consult the Coal Authority about the discharge of conditions, when it did.
47. While the law requires that councils consult named bodies, it does not require that councils publish consultee comments. Not publishing a consultation response is therefore not, in itself, fault.
48. However, it is considered best practice to make available information that enables the public to effectively take part in the decision-making process. The Council’s current approach appears inconsistent and occasionally inaccurate. The Council may wish to review this shortcoming to adopt a more consistent approach.

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Agreed action

49. Within four weeks of the final decision being issued, the Council has agreed to:
1. Share the findings of this decision with relevant officers; and
2. Ensure officers are aware of the requirement to seek the views of statutory consultees on relevant planning applications.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation with a finding of fault by the Council. However, this fault did not cause a significant injustice. I have recommended the Council act to improve its services.

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Investigator's decision on behalf of the Ombudsman