Summary: The Council was at fault, because its supplementary planning document on affordable housing does not make clear under which circumstances it is intended to apply. This did not cause an injustice to the complainant, but the Council has agreed to add a note to its website to clarify the policy. There is no evidence of fault in any other aspect of the complaint.

The complaint

1. I will refer to the complainant as Dr P.
2. Dr P complains the Council has approved a planning application for a large-scale new development near his home. He says the development is both larger, and consists of a much greater proportion of affordable housing, than set out in the agreed Local Plan for the area. Dr P considers this will cause an increase in noise, traffic, and anti-social behaviour, as well as creating social exclusion for residents in the new development.

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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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

4. I reviewed the relevant planning documents and the recording of the Council’s Planning Committee meeting, Dr P’s correspondence with the Council, and comments the Council sent me in response to my enquiries.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Dr P lives on a small estate in a semi-rural area. There is open space adjacent to the estate.
7. In 2017 the Council published its Local Plan, which earmarked this site for potential development, with an ‘indicative yield’ of 90 new homes. The Plan also set out that any new residential development in the area would need to include a minimum of 15% affordable housing.
8. In March 2021 a developer submitted an application to build a new residential development on the site. It proposed to build 126 homes, made up entirely of affordable housing.
9. The application was referred to the Council’s Planning Committee. In March 2022, the planning case officer submitted a report to the Committee, recommending the application be approved with conditions. The Committee debated the application at a meeting in April 2022, and then after further consideration, approved it in February 2023.
10. Before the Council’s decision to approve the application, Dr P made a complaint at both stages of the Council’s procedure, which included:

• that the size of the proposal and proportion of affordable housing was not in line with the Local Plan;
• that the Council had provided no justification to depart from the Local Plan;
• that it had not allowed public speakers at the Committee Meeting in April;
• that the case officer had not properly explained the objections the Council had received during the application’s consultation period; and
• that insufficient councillors were present at the meeting for their decision to be properly democratic.

11. In response, the Council said:

• the Local Plan was only a guide, and that it must assess each planning application on its own merits;
• the 15% figure for affordable housing in the Local Plan was only a minimum, and the developer did not require planning permission to transfer additional properties to an affordable housing provider, which the case officer had explained during the Committee meeting;
• it was satisfied the case officer’s report and Committee meeting had thoroughly covered all relevant issues;
• it had not refused to allow public speakers at the meeting;
• it had reproduced all objections in full on its website, and made them available to Committee members, and was satisfied they had had the opportunity to consider them in full; and that
• the number of councillors at the meeting was adequate, under the Council’s constitution.

12. Following this exchange, Dr P referred his complaint to the Ombudsman in August. As the planning application remained outstanding, we declined to investigate the matter at that point, in line with our normal procedure. Dr P then referred the complaint to the Ombudsman again in February 2023, after the application’s approval.

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Legislative background

13. Planning permission is required for the development of land (including its material change of use).
14. Planning permission may be granted subject to conditions relating to the development and use of land.

Decision making and material considerations

15. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
16. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
17. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
18. General planning policies may pull in different directions (for example, 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.

Case officer reports

19. 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. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
20. However, 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.

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Analysis

21. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
22. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
23. In a case such as this, therefore, it is not for us to pass judgement on the merits of the planning application itself, but just to ensure the council has considered the matter properly.
24. Dr P’s complaint to the Council raised several issues procedural issues, but – with one exception, which I will expand on presently – I do not consider there is any evidence of fault by the Council here.
25. For example, there is no requirement for objections to a planning application to be detailed individually in the report or at the meeting; and indeed, in a case like this, which generated nearly 200 objections, that would clearly be impractical. However, I have reviewed the case officer’s report and watched a recording of the Committee meeting from April 2022, and I am satisfied all key issues raised in the objections were properly noted and discussed. That the Council did not place more weight on these objections is evidence only of disagreement, not of fault.
26. The Council also permitted one resident to speak against the proposal at the Committee meeting. Although others may have wished to speak as well, it is for the Council to allocate speaking time during meetings, and it is normal for places to be limited in this manner. In addition, several councillors voiced concerns similar to those raised in residents’ objections during the meeting. There is no reason to believe residents’ views were not given consideration by the Council.
27. Similarly, although Dr P complains only 9 councillors, out of 16, were present for the meeting, this is a majority and the Council said it was ‘quorate’ under its constitution (meaning there were adequate numbers for decision-making to be valid and representative). The absence of some councillors does not mean the decision was not democratic.
28. More generally, I am satisfied the issues raised by objectors, and by Dr P in his complaint form to the Ombudsman, were given proper consideration by the Council in the case officer’s report and Committee meeting. Again, the fact the Council approved the application in spite of residents’ concerns is not evidence of fault, and it is not for me to make my own judgement on these matters.
29. Dr P has also complained to the Ombudsman that the approved development will deliver significantly more houses than proposed in the Local Plan, and that it will consist of 100% affordable housing.
30. Like most other planning policy documents, local development plans are intended only as a guide, and not hard and fast rules to which councils and developers must adhere. While the Council’s Local Plan sets out an ‘indicative yield’ for this site of 90 houses, this is merely an estimate of how many homes it can practically accommodate. It does not mean a developer cannot propose to build more, nor that the Council must reject such a proposal or require that it be revised downward. It is clear the Council is satisfied the proposal to build 126 homes is practical and there is no reason for me to criticise this.
31. I understand Dr P believes residents were deceived about this by the Council when the Local Plan was put to consultation, the implication being residents would not have agreed to the draft plan if it had proposed a greater number of homes. However, it is too late for me to investigate the way the consultation was carried out, and so I cannot say any misunderstanding by residents was due to fault by the Council. And, even if residents had objected to the draft plan, this type of consultation is not a referendum and councils are not bound to accept the results.
32. The Council has also explained the 15% affordable housing requirement in the Local Plan simply represents a legal minimum the developer must meet. Any decision to hand over additional properties to an affordable housing provider, up to and including 100%, is entirely for the developer to make and is not a planning matter, and therefore not something the Council could refuse an application on.
33. However, the Council has a supplementary planning document (SPD) specifically on the subject of affordable housing. At paragraph 4.61, the SPD says:

“In order to ensure sustainable communities, affordable housing should be distributed throughout a development in small groups or clusters, typically of 4 to 8 units. In larger schemes where more than 100 dwellings are proposed slightly larger clusters, of up to 12 units, may be appropriate, dependent on design and location factors and an appropriate housing mix within the clusters. The Council will not support the principle of grouping affordable units in significant numbers together as this can reinforce feelings of social exclusion and can have a negative impact on the establishment of sustainable communities.”

34. As I have noted, planning policies normally act only as guidelines, and not absolute rules, and so it is not fault simply for a council to make a decision which appears to go against a stated policy. But, if so, it should clearly record and articulate its reasons for doing so.
35. In this case, while the ‘100% affordable housing’ question is discussed in the case officer’s report, and was debated at some length during the committee meeting, the fact the Council has a policy which appears to guide against such a proposal was not mentioned at any point. I therefore asked the Council for its comments on this. In response, it said the policy did not apply in this case, and explained:

“The Council does have an affordable housing supplementary planning document which does advocate the ‘pepper potting’ of affordable housing in mixed tenure schemes. This is very deliberately aimed at schemes in which affordable housing forms a (generally small scale) element of the housing mix – in terms of policy, the requirement in different parts of the area’s geography ranges from 10-30%. However, as articulated in the report and previous responses to this complaint, in this instance the applicant/developer was overtly looking to deliver above the policy requirement, of their own volition. Again, as noted, there was no policy basis or requirement in the decision itself for delivery above the policy target. In this regard the aspect of dispersal and/or concentration of affordable housing was not material.”

36. It is difficult to understand why the Council’s concerns about social exclusion would apply in a mixed estate, with an isolated cluster of affordable housing, but not to an estate made up entirely of affordable housing, directly adjacent and connected to an existing ‘non-affordable’ estate. It appears the same dynamics would apply in either case.
37. But it is, ultimately, for the Council to decide its own policy, and if this was its intent then it is not for me to question that; although I would still expect the policy to be mentioned in the report and/or meeting, even if just to explain why it was not relevant.
38. Either way though, if this is the purpose of the SPD then I consider it is misleading in its current format. I find fault for this reason.
39. I am not persuaded this fault represents a significant injustice to Dr P. While he may also have found the wording of the SPD to be misleading about the Council’s intent, the only consequence of this for him was that he unnecessarily included it as an additional point in his complaint.
40. However, to avoid future confusion, I consider the Council should amend the SPD to ensure its intent is clear.
41. I made a recommendation to this effect in my draft decision on this complaint. In response, the Council explained that changing the SPD itself involved a complicated process, including a statutory consultation period. The Council explained it was also planning to embark on a new policy development exercise in the future anyway. It therefore suggested it would be more proportionate to simply add a note to its website at the relevant point, to explain the policy more clearly.
42. I accept the Council’s point about proportionality and agree its suggestion is a reasonable compromise. Although I maintain my recommendation, therefore, I have amended the wording to reflect this change.

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Agreed action

43. Within one month of the date of my final decision, the Council has agreed to add a note to its website about the supplementary planning document on affordable housing, to ensure it is clear under what circumstances the provision guiding against large clusters of affordable housing should apply, and when it should not.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman