Summary: The complainant, Ms X, complained about the practice of pre-application presentations to the planning committee and the implications of this on the planning application. We do not find fault in the Council’s actions.

The complaint

1. The complainant, Ms X, complains about the practice of pre-application presentations to the planning committee and the implications of this on the planning application.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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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How I considered this complaint

4. I considered the information Ms X has provided.
5. I have considered the Council’s response to Ms X and the planning documents available online.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Before submitting an application

7. Government guidance states pre-application engagement by prospective applicants offers significant potential to improve both the efficiency and effectiveness of the planning application system and improve the quality of planning applications and their likelihood of success.
8. Pre-application engagement is a collaborative process between a prospective applicant and other parties which may include:
• the local planning authority;
• statutory and non-statutory consultees;
• elected members; and
• local people.
9. It is recognised that the parties involved at the pre-application stage will vary on a case-by-case basis. The level of engagement needs to be proportionate to the nature and scale of a proposed development.
10. The guidance states pre-application advice provided by the local planning authority cannot pre-empt the democratic decision-making or a particular outcome, in the event that a formal planning application is made. The advice could, however, be a material consideration to be taken into account and given weight in the planning application process.

Background

11. A developer applied for planning permission on a development near to Ms X’s property. The development was to knock down the existing building and erect a building of up to five storeys to provide residential dwellings, amongst other things. The proposal included a total of 42 new homes.

Summary of the key events

12. In July 2022, a pre-application members briefing note stated the previous application was refused. But said this revised development was smaller. It detailed the key considerations. Members raised some concerns but supported the general approach to redeveloping the site with provision of housing. The pre-application presentation was presented to the planning committee in the same month.
13. The developer submitted their planning application in September 2022. Members of the public were made aware and submitted their objections.
14. The committee report in July 2023 stated the committee resolved to grant planning permission subject to completion of a legal agreement.
15. Within the report, it detailed the key planning issues for members to consider. It was noted a section 106 agreement would be entered into to incorporate a late-stage review mechanism. This would secure a financial contribution towards the provision of off-site affordable housing within the Borough in the event that a surplus was identified. It stated the application was policy compliant.
16. Within the report, it also considered objections to the application. One of these being that members of the planning committee who attended the members briefing on the scheme at pre-application stage should not be considering this proposal. But the Council said:
• section eight of the Probity in planning guidance recognises that pre-application and discussions between a potential applicant and a council can benefit both parties and are encouraged; and
• the Localism Act 2011 sets out legislation on councillor engagement including matters that would not count as pre-determination.
17. One of the other objections considered was about members of the public fearing the demolition would have a detrimental impact on the community impact. It was also noted it was one of the few remaining public houses/restaurants. In response the Council said:
• the lawful use of the existing premises is as a restaurant and not as a public house;
• planning policies relating to the protection of community facilities or public houses therefore do not apply in this case;
• the application site does not fall within any of the priority locations (town centres, edge of town centres and intensification corridors). Therefore, there is no policy basis for the re-provision of the restaurant use;
• the loss of the restaurant was previously considered and did not form an earlier reason for refusal within the 2021 application; and
• the existing building is not registered as an asset of community value.
18. The committee report in October 2023 stated the application was presented to committee in August 2023. It said the committee were minded to refuse the application regarding concerns in relation to:
• affordable housing provision;
• scale of development; and
• site optimisation of the potential planning benefits.
19. The decision was taken to defer the application to enable officers to provide a report about the potential reasons for refusal.
20. Additional information and clarification were provided in relation to the points detailed in paragraph 18. It was noted that:
• the scheme presented to members in August 2023 did not include any affordable housing;
• however, this approach was in accordance with the relevant policies;
• the absence of an affordable housing offer had been substantiated through the viability tested route, in line with the London plan; and
• the recommendations were that the committee resolve to grant planning permission subject to completion of a legal agreement.
21. The application is awaiting a decision.

Ms X’s complaint to the Council

22. Ms X complained in July 2023. She also submitted a request for recusal of the July committee members meeting and said:
• her recent freedom of information request included details of the pre-application process that had taken place;
• there was evidence of pre-determination;
• how much did the committee discuss that was not minuted;
• no steps were taken to take views of residents or local ward councillors. Meetings between lead members took place before the consultation with the community. There was no mention of this meeting or its outcome;
• residents reading the application papers would struggle to know that the July committee members had already met for a presentation and detailed discussions;
• neither of the 2022 meetings were public, nor did they take place within clear, published guidelines;
• four months after the meeting in July, the Council changed its constitution to allow a planning committee to hear any kind of pre-application; and
• she was told by a senior source the application was likely to be refused.

The Council’s response

23. In the Council’s final response, it said:
• it has an established practice of inviting certain developers to make chargeable pre-application presentations to the planning committee. This occurred in relation to this planning application;
• the practice of inviting certain developers of larger schemes to make chargeable pre-application presentations to the planning committee is a well-established practice since 2018/2019;
• there is not a set threshold to clarify how larger schemes are defined. But said major schemes involving 10 or more homes are usually recommended;
• the latest version of its constitution originally published 1 June 2023 now included detailed guidance on pre-application advice and discussions. But it said this was not in place when pre-application presentations were made in respect of this application;
• the code of practice which applied at the time of the presentations prompted underlying principle which has remained unchanged in the updated code. The principle is ‘Both councillors and officers must make planning decisions openly, impartially, with sound judgment and for justifiable planning reasons’;
• section 8.6 of the code stated ‘As pre-application discussions or discussions about undecided applications require particular care, the following additional rules apply. An officer must make the arrangements for such meetings, attend and write notes. The meeting arrangements must include agreeing an agenda in advance’. The Council considered this reasonably encompassed the presentations; and
• the fact the planning code of practice has been revised does not mean it was flawed or unable to give general guidance for pre-application presentations.

Analysis- was there fault by the Council causing injustice?

24. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
25. Government guidance allows for pre-application engagement. It states this offers significant potential to improve both the efficiency and effectiveness of the planning application system and improve the quality of planning applications and their likelihood of success. Therefore, it was not fault for pre-application meetings to have taken place.
26. Ms X said the Council said it was only interested in its constitution, but then referred to the local government association as a reason for allowing pre-application engagement. But as stated above, government guidance allows for pre-application engagement. I recognise the Council has revised and updated its practice. This now includes guidance on pre-application advice and discussions. But it was not fault for this to not have been in place sooner.
27. Ms X said there were no discussions around the representation about the valued community facility. She also said there was no affordability. As stated in paragraphs 15, 17 and 20 this was considered. The Council did not consider there to be any substantive grounds for refusal based upon the affordable housing provision as it said the scheme was in line with the relevant policies. This is a decision for the Council to take. Paragraph 17 sets out the Council's consideration of the representations.
28. I have seen a lack of evidence to suggest there was pre-determination. The process followed evidences members went to the meetings open minded. This is because they were previously minded to refuse the application. The fact they later changed their mind due to further evidence again shows members were open minded.

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Final decision

29. I have completed my investigation on the basis there was no fault in the Council’s actions.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman