Summary: Mr D says the Council failed to follow the correct process for a planning application. We have upheld the complaint because there were some errors by the Council which it already acknowledged and apologised for in 2023. We have completed the investigation because there is no additional fault or outstanding injustice.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council failed to follow the correct process for a planning application relating to a site near his home.

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The Ombudsman’s role and powers

2. 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:

• 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.

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

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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What I have and have not investigated

4. Mr D’s complaint makes some reference to a previous planning application for the same site which was received by the Council in May 2021. The focus of his formal complaints to the Council were about the planning application received by the Council on 29 November 2022. I am therefore investigating what happened in respect of the November 2022 application.
5. Mr D also refers to the Council not publishing an objection by another resident. I do not see this would cause a personal injustice to Mr D. Also the Council has explained to Mr D its statutory requirement regarding publishing planning objections. We cannot add anything further to that explanation.

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How I considered this complaint

6. I have considered the information provided by Mr D.
7. I asked the Council questions and examined its response.
8. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did. On the broader point, we cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
9. I have shared my draft decision with both parties and considered their comments.

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What I found

What happened

Background

10. The Council received a planning application for a site near Mr D’s home in May 2021. It considered the case, including objections from Mr D. It decided to approve the application in June 2022.

Events I have investigated

11. On 29 November 2022 the Council received a planning application for variation of conditions at the site near Mr D. It validated the application, which it considered as a Section 73 Town and Country Planning Act 1990 application (S.73 application), in December and advertised the application in December and January 2023. Objections received from residents, including Mr D, were published on the Council’s planning site. The case was considered by a Planning Officer into March. They spoke with the Principal Planning Solicitor about the case on 29 March and they produced an officer report which was put to the Planning Committee to discuss on 30 March. The officer report included the relevant development plan, material planning considerations and legislation. Objections were summarised and the Officer detailed how the application had been assessed. They found the works in the application would not cause unacceptable harm. The Planning Committee voted in favour of approving the application. On 6 April the Council granted planning permission and attached conditions to the approval. One condition stated the development should begin within three years of the permission date.
12. On 21 April Mr D told the Council he was not satisfied with its handling of the application. The Council replied on 12 May. It said the Planning Officer’s report addressed all the relevant material planning considerations and the decision made was sound and lawful. However, the condition allowing three years to implement the development was an administrative error. The Council said that regulations did not allow for a S.73 application to vary the timescale for implementation. It did not see this made the decision notice unlawful.
13. Mr D lodged a formal complaint reiterating his concerns on 21 August. The Council responded on 22 September. It accepted the error in attaching the condition to the S.73 application decision. It stated this did not make the decision unlawful unless it was subject to a successful challenge by way of Judicial Review. It considered using the S.73 process to be appropriate and proportionate given the extent of the modifications proposed in the application. The Council apologised for the error, but the decision remained extant and lawful.
14. Mr D pursued his complaint with the Council on 28 September and rereferred to a court ruling on another planning case. The Council issued its final response on 20 October. It set out in detail why it did not believe the court ruling had a bearing on its recent decision. It confirmed it had received verbal legal advice from its solicitor on the case before it went to the Planning Committee. The Council also said it had looked at whether plans for the application were available online. It confirmed that floor plans submitted for the initial 2021 application should have been copied onto the 2022 application and apologised for that oversight. 45 degree approved documents were not online but had been included in the presentation to the Planning Committee and so formed part of the decision making. The Council also reiterated the error with the planning condition and apologised.

What should have happened

15. A S.73 planning application allows for the variation or removal of conditions attached to an existing planning permission. It provides a mechanism to modify the approved proposals. S.73 applications cannot be used to extend the time limit on a development.
16. When the Council receives a S.73 application it follows the same process as for a full planning application. The application is validated and then publicised. Neighbour notification letters are issued and any responses from residents and statutory consultees are considered by the Planning Officer. The Planning Officer will assess the material planning considerations, relevant policies and legislation. They produce an officer report setting out their recommendations. If the Planning Officer recommends the Council approve the application in conflict to responses from consultees the case can be referred to the Planning Committee for its Members to reach a view. The Planning Committee Members will consider all of the evidence including the officer report and then decide whether to approve the application.

Was there fault by the Council

17. The Council has already accepted it was at fault in its complaint responses to Mr D. It incorrectly attached a condition to the S.73 approval in April 2023 extending the time limit for the development. The Council has correctly told Mr D this does not invalidate the decision, this would only happen if Judicial Review found the decision was unlawful. In addition, the Council also recognises that two documents were not part of the online documents for the S.73 application. A floor plan submitted with the earlier 2021 application was not copied onto the online page for the application and the 45 degree approved document was not available online. The Council has confirmed that both documents were considered during the decision making stage for the S.73 application. It apologised to Mr D for the error.
18. I have not seen evidence of any new and additional fault by the Council. Mr D does not accept the process used by the Council was correct, but the Council has advised him why the S.73 application process was found to be appropriate. That was a decision the Council was entitled to make. The Council has also explained that it received verbal advice from its Principal Planning Solicitor before the case was considered by the Planning Committee. Again, that is an option open to the Council and is not evidence of procedural fault. Mr D strongly disputes the decision reached by the Council, but the evidence shows me the Planning Officer and Planning Committee adhered to the correct process and took account of the relevant material planning considerations and policies in reaching their view.
19. I appreciate my decision will be disappointing for Mr D. It is important to note the Ombudsman is not an appeal body. We do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether Mr D disagrees with the decisions the Council made.

Did the fault cause an injustice

20. I do not see there is an outstanding injustice to Mr D. The Council has apologised for the errors identified. I do not see any further action is needed in this matter.

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Final decision

21. I have upheld the complaint (because of the fault already acknowledged by the Council) and completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman