Summary: X complained that the Council discriminates against them when it considers the planning applications they submit for approval. We ended this investigation because we saw no evidence of discrimination, we are unlikely to find fault or show the outcome would have been different. There are also other bodies better placed to decide the issues raised in this complaint.

The complaint

1. The person that complained to us is a professional planning agent and will be referred to as X. X is an individual who has a characteristic which is protected by law.
2. X complained the Council discriminates against them when considering their planning applications. X said they provided evidence to the Council which showed their plans, which its officers had indicated would be refused, were later approved when submitted by other agents who do not share the same protected characteristic.
3. X said they would like an apology and compensation for the impact this has had on their reputation and business.

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The Ombudsman’s role and powers

4. We investigate complaints from people 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 could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

5. I read the complaint and I invited X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
6. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

7. Councils 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 over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

Equalities law and guidance

12. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
13. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
14. The ‘protected characteristics’ referred to in the Act are:
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

What happened

15. X submitted planning applications to the Council on behalf of their clients. They believe the Council treated their applications differently because they have a protected characteristic that is not shared by the officers who considered and decided the applications.
16. X complained to the Council about what had happened. The Council responded to the complaint and referred to two applications X had brought to its attention. In relation to the first application, it said:
• the original case officer was minded to recommend refusal and advised X to reduce the depth of the extension, so X should either withdraw the application to make changes, or proceed to planning committee for a decision;
• before the application went to committee, a new agent took over and asked to withdraw the application to make changes, reducing the scale of the development;
• a new case officer then considered the application and recommended approval.
17. In relation to the second application X had complained about, the Council said:
• the original officer’s view was that the proposal was unacceptable. They advised X they should withdraw it to make changes or go to planning committee for a decision;
• a new agent asked to withdraw the application to consider amended plans;
• a new case officer considered amended plans and recommended approval.
18. X complained to the Council about what had happened, and it responded to say:
• while it understood their concerns, X had provided no evidence of discrimination or impartiality for it to consider;
• there were material differences between amended plans and other information provided to support the applications, but in any event, each case was considered on its merits and different officers are entitled to reach different views on the same or similar applications;
• the service should consider whether it could provide X with general advice that might help them submit applications more likely to gain approval. It would also consider whether it should provide pre-paid advice for a fee for minor/household applications, as this might improve chances of successful outcomes. For the next couple of applications X submits, they will be reviewed by another officer for a second opinion.

My findings

19. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
20. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
21. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
22. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
23. I should not investigate this complaint further, and my reasons are as follows:
• We are not a planning appeal body and cannot evaluate and decide planning applications. Because of this, we cannot compare applications and decide whether we agree or disagree with the judgements made by planning officers.
• If a planning applicant does not agree with the advice provided by a planning officer or the outcome of a planning authorities decision, they can appeal to the planning inspectorate, who can independently judge the planning merits of an application. X did not choose to use a right of appeal.
• I can see the Council considered X’s allegations against its equalities obligations, found no fault but made recommendations for service improvements. I do not doubt X feels they were treated differently, but I have not seen evidence that shows this to be the case. I consider it unlikely that further investigation by me is unlikely to result in a different outcome.
• Ombudsman investigations focus on the process by which decisions are made. Our investigations can establish what happened, but why it happened is often difficult to evidence. In this case, the Council has explained its officers’ reasoning. Without real evidence of discrimination, it is unlikely we would be able to show these reasons were disingenuous.
• In any event, there are bodies better placed to investigate and decide breaches of the Equality Act 2010 or the public sector equalities duty. If X has evidence to support their allegation, they can report the Council to the Equalities and Human Rights Commission or take legal action seeking compensation in the civil courts.

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Final decision

24. I ended my investigation as it was unlikely to result in a finding of fault, the remedy X is seeking, or a different outcome.

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Investigator's decision on behalf of the Ombudsman