Summary: We will not investigate this complaint about the Council’s decision to approve a planning application for a non-material amendment under delegated authority. There is not enough evidence of fault in the way the Council considered the application. Nor can we achieve the outcome the complainant it is seeking.

The complaint

1. The complainant, I shall call Mr X, complains the Council processed a planning application it received under section 96A Town and Country Planning Act 1990. He says the application should have been decided by the planning committee and not by officers under delegated authority.
2. Mr X wants the Council to insist the developer complies with the original approved application which incorporates two access points.

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The Ombudsman’s role and powers

3. We 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council granted planning permission for a large development of nearly 200 homes on land at the edge of a village. The planning permission required the developer to build two access points onto the new site. On appeal, the Planning Inspectorate agreed the developer should construct the second access after it had built the first 50 homes.
7. The developer says it could not provide the second access for reasons outside its control and so it put in an application under section 73 of the Town and Country Planning Act 1990 (TCPA). This was to vary the condition on the second access. If approved, this would have resulted in the second access not being built.
8. The Council sought legal advice on the application. Counsel responded saying that it would be unlawful for the Council to decide the section 73 application because it was too late. The Council explained this to the developer who withdrew the application and instead submitted a section 96A application, for a non-material amendment (NMA) to remove the second access to the site. While there is no statutory requirement to consult on such an application, the Council considered it should consult residents. It also decided that officers could decide this application under delegated powers.
9. A delegated decision report was prepared which set out the relevant facts and considerations and concluded that as there were no objections from Highways or Environmental Health, that it should be allowed. This application was approved under the Council’s scheme of delegation as it met the required criteria for doing so. There was no requirement for the application to be decided by the Council’s planning committee.
10. Mr X says the owner of a strip of land was prepared to negotiate with the developer. Therefore, it was incorrect for the developer to state they could not construct the second access due to circumstances outside its control.
11. The Council responded to Mr X’s complaint and explained why it had treated the application as an NMA. It said it had sought advice and was satisfied its approach had been legally sound and that it would not be revoking the permission granted.
12. It is not our role to act as a point of appeal. We cannot question decisions made by councils if they have followed the right steps and considered the relevant evidence and information. While Mr X may not agree with the Council’s decision on the application, there is no evidence to suggest fault affected it.

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Final decision

13. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council decided to approve the application.

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Investigator's decision on behalf of the Ombudsman