Summary: Mr X complained about the Council’s decisions to grant planning permission for developments near his home. We found no fault in how the Council reached its planning decisions.

The complaint

1. Mr X complains about two Council planning decisions for development near his home because it:

• used the wrong procedure to change a development;
• wrongly interpreted a planning condition to increase the capacity of a development; and
• the officers’ reports on the planning applications did not provide clear and full information about the green belt and development land allocations in the local plan or the capacity of the allocated land for development.

2. Mr X said, in failing to comply with the local plan, the developments caused problems for him and other residents, including noise, traffic and loss of green belt land. Mr X wanted the planning decisions revoked and a direction given to the Council to apply the size limit imposed by the local plan on development.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. Mr X’s complaint centred around planning applications on former green belt land. The information Mr X provided included planning applications dating back several years and events preceding adoption of the Council’s current local plan. These earlier applications and events provide background to Mr X’s complaint. Complaints about these earlier applications and events would be late complaints and I find no good reasons to investigate them now (see paragraph 4 of this statement).
7. I viewed these earlier events and applications as providing background and context to the Council’s two 2023 planning decisions that led Mr X to complain. The focus of my investigation is therefore the Council’s decision making on these two recent applications.

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How I considered this complaint

8. I have:

• considered Mr X’s complaint and supporting papers;
• talked to Mr X about the complaint;
• considered planning information available on the Council’s website about the two developments;
• watched and listened to the Council’s recordings of the relevant committee’s consideration of the two applications; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

9. Councils must decide planning applications in line with their local plan policies unless material considerations indicate otherwise.
10. Local plans may show land as ‘green belt’. Green belt land is subject to enhanced planning controls that aim to prevent urban sprawl by keeping the land open. Government guidance says that inappropriate development in the green belt should not be allowed except in very special circumstances, where the harm is clearly outweighed by other considerations.
11. Material considerations concern the use and development of land in the public interest, and not to private matters. Material considerations include issues such as overlooking, traffic generation and noise. Examples of private matters are an applicant’s personal conduct and changes to property prices.
12. General planning policies may pull in different directions, for example, promoting residential development and protecting existing residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in deciding a planning application.
13. Councils set out which planning applications officers will decide and those councillors at committee will or may decide. In practice, officers decide most planning applications. Councillors at committee often will consider applications for major developments and proposals causing significant local concern or objection.
14. Officers will usually prepare a report for applications councillors are to decide at committee. The report provides the officers’ assessment of the proposals against relevant planning policies and other material planning considerations. The report also summarises the comments received about the proposals, which comments are available in full to councillors. The courts have made it clear that such 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 on 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.

15. When granting planning permission, councils usually apply conditions to control the development. Conditions should be necessary, relevant to planning and the development, precise, enforceable, and reasonable in all other regards. Councils must give reasons for each condition they impose.

16. Sometimes developers want to change their proposals after the grant of planning permission. A fundamental change will need a new planning application. However, section 73 of the Town and Country Planning Act 1990, as amended, provides for changes to a planning permission. Section 73 applications seek permission to develop land without complying with conditions on an existing planning permission. Such applications may be called ‘minor material amendments’ to a permission. However, the courts pointed out that section 73 does not include the phrase ‘minor material’. And, in July 2023, the Government’s Planning Practice Guidance (PPG) removed references to the word ‘minor’.
17. Councils must publicise applications made under section 73 so people may comment on proposed changes. If councils approve applications to remove or vary existing conditions, they will issue a further planning permission. The new planning permission will have its own conditions that differ from those on the original permission.

What happened

18. Several years ago, the Council received a planning application for development on green belt land. Around the same time, the Council was preparing a new local plan that considered using green belt land for development, including land covered by the application. An inspector from the independent Planning Inspectorate (PINs) held an inquiry into the proposed local plan. The Council then granted the application planning permission (‘the Original Permission’) having found ‘very special circumstances’ for development on green belt land. The Original Permission was for three types of development.
19. A condition on the Original Permission limited development within the application site to land shown on a plan (‘the Plan Condition’). The reason for the Plan Condition included ‘preserving the openness of the green belt’. Another condition limited use of the developed land for highway safety reasons (‘the Size Condition’). The limit referred to space that one use (‘the Use’) could take up as part of the development.
20. PINs report on the local plan inquiry agreed to allocate some green belt land for development (‘the Allocated Land’). PINs also referred to the Original Permission and suggested the relevant new planning policy refer to the size of the approved development. The figure used by PINs was that from the Size Condition which gave the ‘maximum’ development for the three approved uses.
21. The Council adopted the local plan in 2019. The Allocated Land in the local plan differed from the application site for the Original Permission and its Plan Condition. A key difference was the Original Permission and its Plan Condition provided for development on land that remained green belt in the local plan. And the local plan protected part of the Allocated Land from development for possible future use for public purposes (‘the Protected Land’). The Original Permission had also excluded the Protected Land under the Plan Condition. The local plan also included the ‘indicative capacity’ of the Allocated Land for development using the ‘maximum’ figure from the Size Condition.
22. In the years that followed, the Council received and decided further planning applications related to the Original Permission and development started on site. The Council then received an application to vary the Size Condition (‘the S73 Application’) to increase the capacity of the development. The Council also received an application to develop the Allocated Land, including the Protected Land, not already shown for development under the Plan Condition (‘the Application’). Mr X was among the local residents that objected to both applications.
23. Councillors at their planning committee approved both the S73 Application and the Application.
24. Mr X complained to the Council about the decisions and, being dissatisfied with its response, then came to the Ombudsman.

Consideration

The S73 Application: the wrong procedure

25. This issue concerned the Council’s acceptance of the S73 Application rather than asking for a new planning application to increase the capacity of the development. Mr X said the local plan and Original Permission set the capacity for the development. Mr X questioned the Council’s reference to the then PPG and its view of the proposed increase in capacity as a ‘minor’ material change.
26. While recognising Mr X’s concern about the proposal to increase the capacity of the development, section 73 allows planning conditions to be varied. As the courts pointed out, section 73 does not refer to ‘minor material’ changes to conditions. The phrase ‘minor material’ came from the PPG. Guidance should be consistent with relevant laws and in July 2023 references to ‘minor’ were removed from the PPG.
27. The Original Permission, in describing the approved development, referred to three planning uses but did not include any figure either for the capacity of each use or the overall development. The Size Condition gave the figure for the overall capacity of the development and how much of that capacity could be taken up by the Use. The local plan, coming after the grant of the Original Permission, reflected the figure set out in the Size Condition as ‘indicative’ of the capacity of the Allocated Land.
28. The Council officers’ report on the S73 Application (‘the Report’) referred to section 73, the change sought, and the extent of that change. The Report’s summary of objections included a challenge to section 73 and set out the officers’ reasons for finding section 73 appropriate. So, from an administrative viewpoint, the evidence showed the Council was aware of the issue and considered it. That was the correct course of action for the Council to take. And, having considered the issue, it was for the Council to decide whether to accept a section 73 application that would increase the capacity of the development by varying the Size Condition.
29. I found no fault and so had no grounds to question the Council’s decision, which was to accept the S73 Application. And, ultimately, only the courts can determine whether an application and resulting planning permission are legally sound.

The Section 73 Application: the scope of the Size Condition

30. This issue concerned the purpose of the Size Condition and whether it was possible to increase the capacity of the development by varying its wording. Mr X pointed to the Size Condition being for highway reasons and not to control the size of the development.
31. The Size Condition was imposed for highway reasons. However, how land is used affects the traffic it produces. Here, the Council identified the Use as producing significant traffic movements. The Size Condition included a figure for the ‘maximum’ development capacity of the site and set a limit on how much of that capacity the Use could take up. In doing so, the Size Condition sought to control traffic generation and its impact on nearby roads. The S73 Application in seeking to increase the overall capacity of the development, also sought to reduce the limit on the Use imposed by the Size Condition.
32. The Report identified traffic generation as a key material consideration in deciding the S73 Application. In assessing the proposals, the Council found that, as the Use would reduce, the increase in the overall development capacity of the site would not materially change traffic movements. So, varying the Size Condition as proposed by the S73 Application would not undermine its highway purpose. I found no fault here by the Council.

The Section 73 Application: inconsistency with the local plan

33. This issue concerned the S73 Application not reflecting the Allocated Land and its ‘indicative capacity’ in the local plan. Mr X said PINs and the local plan only allocated part of the Original Permission application site for development. And, both PINs and the local plan provided a figure for the development capacity of the Allocated Land. The Report did not refer in full to what PINs said about removing only part of the site from the green belt and the capacity of the Allocated Land in the local plan policy. Mr X said the Report therefore lacked transparency and was incomplete.
34. The Original Permission preceded adoption of the local plan. The application site covered by the Original Permission, and the land within that site covered by the Plan Condition, extended beyond the Allocated Land. The Report said the whole application site had been green belt land but now part was allocated for development under the new local plan. The Report also addressed changes between the former and current local plans.
35. The Report also referred to the ‘indicative’ capacity of the Allocated Land. The Report said more development would be possible if it did not cause material planning harm. The Report showed the increased capacity proposed by the S73 Application would be on land covered by the Plan Condition and within the Allocated Land. The evidence therefore showed the Council properly took the new local plan, including its reference to ‘indicative capacity’, into account in deciding the S73 Application. So, I had no grounds to find the Report misled councillors about the status of the application site, or its capacity for development, in the local plan.
36. Overall, I found the Report suitably and adequately addressed the relevant policies and material planning considerations needed to ensure the Council’s decision on the S73 Application was properly made (see paragraph 14). I therefore had no grounds to find the Council acted with fault.

The Application: inconsistency with the local plan

37. Mr X said the officers’ report on the Application failed to recognise the loss of green belt land due to the Original Permission and its related applications. Mr X also said the report failed to refer to the ‘indicative capacity’ of the Allocated Land, which the Application proposals further increased.
38. I recognised Mr X’s concern about the further development. However, the Application site was not green belt in the local plan (aside from a limited area not proposed for physical development.) The Application sought planning permission on the Allocated Land for development consistent with the local plan allocation. And the Council must decide applications in line with its local plan (see paragraph 9) unless material planning considerations indicate otherwise.
39. The ‘indicative capacity’ of the Allocated Land would reflect the approximate 50% reduction in land available for development because of the Protected Land. The Application report addressed why the Protected Land was proposed for development. The Application report also included the local plan indicative capacity for the Allocated Land and said that capacity would be exceeded by the proposed development. The report said assessing the proposals against material planning considerations would show whether the increased capacity caused material planning harm.
40. The Application report, in referring to the Original Permission and its related applications, reminded councillors of the earlier nearby development. The Application report also summarised and responded to peoples’ comments on the proposals. The comments included objections about loss of green belt and the proposal further increasing development capacity over that approved by the Original Permission. The Application report provided evidence the Council assessed the proposals against relevant planning policies and other key planning considerations. In carrying out the assessment, the report considered the impacts of the further development including on nearby homes and on traffic generation. The Application report found no grounds to justify refusing planning permission.
41. Overall, I found the Application report suitably and adequately addressed the relevant policies and material planning considerations needed to ensure the Council’s decision on the Application was properly made (see paragraph 14). I therefore had no grounds to find the Council acted with fault.

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Final decision

42. I completed my investigation finding no fault in how the Council reached its two planning decisions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman