Summary: We will not investigate Mr X’s complaint about the Council’s planning decision on a change of use application for a nearby business, the licensing process for the same business, and officers not disclosing some licensing information. There is not enough evidence of fault in the planning or licensing processes to justify an investigation. Even if there were fault in the planning drainage issue, it does not cause Mr X sufficient significant injustice to warrant investigation. It would be reasonable for Mr X to pursue the freedom of information issue with the Information Commissioner’s Office if he is dissatisfied with the Council’s final response.

The complaint

1. Mr X lives on an unadopted cul-de-sac. He complains the Council:
1. failed to take proper account of the traffic implications when granting permission for the business;
2. did not properly inspect the drainage on the site;
3. withheld information provided by the business as part of the licensing process.
2. Mr X says his only access to his property is blocked by the company’s customer’s parked cars, the parking prevents any large vehicle from getting to his property, increased traffic has led to more vehicles turning around outside his house, and he is concerned access to his home for emergency vehicles may be blocked. He wants the Council to negotiate with the business owners to not use the road for parking, install their own turnaround, and take actions to reduce the number of customer vehicles visiting the area.

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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
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• there is another body better placed to consider this complaint.

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

4. 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)
5. The Information Commissioner's Office (ICO) considers complaints about freedom of information (FOI). Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

6. I considered information from Mr X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

7. The owner of the business received planning permission in 2022 for a change of use for an existing outbuilding, so they could use it as part of that business. The Council consulted with the relevant highways officer at Essex County Council during the planning process. The Essex officer confirmed its Council did not object to the planning application on highway grounds because the road serving the business is a private one. Tendring’s planning officer commented on highways issues in their delegated report. The comments were limited to setting out wider policy for highways and noting Essex County’s lack of an objection because of the road’s private status.
8. We may only go behind a council decision where there has been fault in the decision-making process and but for that fault a different decision would have been made. The Council’s planning officers followed the proper procedure here in seeking the highways authority’s position on the application before making their decision. Neither the Essex highways authority nor the Tendring planning authority could use highways issues to refuse or amend the planning application because the road serving the application site is private and unadopted. That was a decision officers were entitled to take. There is not enough evidence of fault in the planning officer’s decision-making here to warrant an investigation.
9. We recognise Mr X disagrees with the decision. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Mr X’s complaint to the Council refers to a possible breach of a covenant between the private road’s residents. Covenants between third parties do not form part of councils’ planning or licensing decision processes. If Mr X believes the business owners have breached a covenant between him and all other residents of the private road, that would be a private civil and legal matter.
11. Mr X mentions the Council’s planning consideration of drainage on the site, which he says they did not do properly. The application was for a change of use to an existing outbuilding, not for a new building involving additional development or hard surfacing, which might affect land drainage. The planning officer referred the application to the Council’s Environmental Protection Team as consultees. That team had no comments to make on the environmental impacts of the proposed change of use. The Council’s planning officer followed the appropriate process to consider environmental matters during the application. There is not enough evidence of fault in that process to warrant us investigating.
12. Furthermore, Mr X does not say how the drainage issue has caused him a significant personal injustice. His claimed injustices all relate to the highways issue. So even if there has been fault on this matter, there is insufficient significant personal injustice to Mr X to justify us investigating.
13. The business has also gone through the Council’s licensing process. Mr X wanted the Council to use that process to place controls on the business to remove or reduce his concerns about the impacts on the highway. The Council has explained the purpose of the licensing process was to manage risks to the business’ customers and their property and cannot be used to manage use of the road. The licensing process for this business does not allow the Council to specify how it operates in a way to affect the highway serving the premises. There is not enough evidence of fault in the Council’s decision on this matter to warrant us investigating.
14. In his complaint to us, Mr X says the Council has not disclosed to him information provided to officers by the applicant during the licensing process, information he says he requested. We cannot investigate this part of the complaint if it has not been put before the Council to give it appropriate opportunity to reply. If Mr X wishes to pursue it, he should first complain to the Council. If he is dissatisfied with its reply, he may then wish to raise the issue with the ICO.
15. If Mr X has raised it with the Council, we will still not investigate this freedom of information (FOI) issue. This is because the ICO is the body created by national government to consider concerns about how public bodies such as local authorities apply and comply with laws and guidance about disclosure of information. That specific remit means the ICO is better placed to consider this issue. The ICO’s decision notices can also be appealed to the First Tier Tribunal (Information Rights). So if Mr X disagrees with the ICO’s decision on his complaint, he would have that right of appeal. For these reasons it would therefore be reasonable for Mr X to pursue this issue with the ICO.

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Final decision

16. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the planning or licensing processes to justify an investigation; and
• even if there were fault in the planning drainage matter, it does not cause Mr X sufficient significant personal injustice to warrant us investigating; and
• it would be reasonable for Mr X to pursue the FOI issue with the ICO.

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Investigator's decision on behalf of the Ombudsman