Summary: X complained about the Council’s decision to approve an application for development on land near X’s home. We did not investigate this complaint further, as we were unlikely to find fault or evidence to show the outcome would have been different.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to approve a development on land near their home. X said the development harms wildlife and is likely to increase the risk of crime and anti-social behaviour in the area.
3. X believes that before the Council approved the application, it should have:
• consulted the police and environmental bodies;
• conducted relevant surveys;
• referred the application to the planning committee; and
• carried out better publicity to make the local community aware of the application.
4. X would like the Council to stop construction, work with the community on a solution, and improve the way it publicises applications.

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The Ombudsman’s role and powers

5. 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
• 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 no worthwhile outcome achievable by our investigation.

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

6. We do not usually 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)

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How I considered this complaint

7. I read the complaint and discussed it with X. 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. I have read policy documents, including the Council’s statement of community involvement and the current version of its scheme of delegation.
8. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of the comments I received.

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What I found

Planning law and guidance

9. Regulations set out the minimum requirements for how councils publicise planning applications.
10. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
11. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
12. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the council’s policy on how it will communicate with the public when it carries out its functions.
13. There are regulations that set out when councils are required to consult other bodies (statutory consultees) before they make their planning decision.
14. Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
15. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
16. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
17. 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.
18. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
19. Details of how a council considered an application are usually found in planning case officer reports. 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.
21. Councils have a statutory duty to consider the potential impact crime and disorder might have on the public when carrying out their functions, including their planning function. This does not mean that every planning case officer report must refer to these issues. We would only expect councils to refer to crime and disorder in a planning decision when they are relevant and/or is engaged by the process. This might happen when:
• a consultee raises an issue about crime and disorder before a decision is made; or
• when crime and disorder issues are clearly relevant because of the nature of the proposal.

What happened

22. X lives near an area of land that is open to the public. A few years ago the planning authority considered and approved a planning application for development on the land. X was not aware the development had been approved until development began a few years after the decision was made.
23. X lives some distance from the application site and is not directly affected by it. Their concerns relate to wider issues.
24. X said that, if they had been aware of the application, they would have objected to the proposal because of the impact it would have on the environment, and how it would likely be a focal point for anti-social behaviour.

My investigation

25. We do not normally investigate late complaints or complaints where the individual cannot claim a personal injustice. However, we have discretion to investigate these complaints.
26. We may investigate late complaints, where:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision; and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
27. I am satisfied that X was not aware of the application until long after the decision was made, and that there is sufficient evidence remaining for me to consider and make a sound decision on this complaint.
28. There are public interest elements to X’s complaint that I should consider. Though I cannot show X was caused a personal injustice, it is possible that valuable lessons might be learned and potential injustice to others avoided.
29. The records show a planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• comments from a neighbour and other consultees, including a local gardens trust, a heritage specialist, Historic England, a tree specialist and local Council members;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on wildlife and anti-social behaviour; and
• the officer’s recommendation to approve the application, subject to planning conditions.

My findings

30. 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.
31. 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?
32. 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.
33. 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.
34. I should not investigate this complaint further, and my reasons are as follows:
• The two issues X raised, impact on wildlife and increased anti-social behaviour, were considered before a decision was made.
• Before it made its decision, the Council consulted specialist groups, bodies and experts. I checked the regulations relating to statutory consultees and found no obligation on the Council to consult any other bodies.
• I checked the latest version of the Council’s delegation scheme but did not find earlier versions of its constitution on the Council’s website. There is nothing in X’s complaint or in the other evidence I have seen to suggest there was a failure to refer the application to the Council’s planning committee. Also, as the main planning considerations are included in the case officer’s report, there is no evidence to suggest that any fault in delegation would have led to a different outcome.
• The Council has provided a public consultation list from its document management system, and the case officer’s report refers to site notices and an advert in the local press. X does not share a boundary with the site and so was unlikely to receive a notification letter. It is now several years since the application was decided and recollections about where and whether site notices were put up are likely to have faded. I note that at least one neighbour was aware of the application, as their comments were considered. I think further investigation is unlikely to result in a finding of fault or a different outcome.
• The main remedy X would like, is for development works to stop/be removed, and for the Council to discuss alternatives with the local community. This is not a remedy we can provide. The application was approved several years ago and is now lawful. Closer to the time, an application could have been made to the High Court for an order to quash the approval, but civil procedure time limits and questions of law are matters for the court to decide.

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Final decision

35. I ended my investigation as it was unlikely to result in a finding of fault, a different outcome, or any other meaningful conclusion.

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Investigator's decision on behalf of the Ombudsman