Summary: We will not investigate Ms X’s complaint about how the Council decided to grant planning permission for development of a site which shares an access with her property, and how it dealt with her complaint. There is not enough evidence of fault in the Council’s planning decision-making process to warrant us investigating. We do not investigate council’s complaint‑handling where we are not investigating the core issue which gave rise to the complaint.

The complaint

1. Ms X lives near a site which received planning permission for residential development. The site includes an access track linking with the highway which is partly shared with Ms X’s property. The Council granted conditional planning permission to the developer. Ms X complains the Council:
1. failed to fully assess the suitability of the access track, did not take account of her and others’ serious concerns about the access, and did not consider the impacts the use of the access would have on her property;
2. did not take account of her reports of the developer’s threatening behaviour towards her and her family;
3. did not respond to all her questions within its delayed complaint process.
2. Ms X says the matter has had a huge impact on her and her family’s lives. She says it has affected their quality of life, the enjoyment of their home, plus mental health and financial impacts. Ms X says she and her family have been bullied and harassed by the developer about the access. She says the developer has verbally abused them, made threats of legal action and sent a distressing letter.
3. Ms X wants the Council to explain what assessment of the access track officers did and how they took account of residents’ and Highways Officer concerns. She wants them to document the assessment’s outcomes in the ‘Construction Management Plan’ (CMP) required to discharge one of the planning permission’s conditions. Ms X wants the Council to make sure post-construction arrangements for use of the access are in place.

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The Ombudsman’s role and powers

4. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)

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How I considered this complaint

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

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My assessment

7. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
8. Ms X says the Council did not fully assess the suitability of the development’s access track. The Council’s planning officer report mentions the width, location, orientation and surface of the access. The Council’s officer recognised the access would serve additional residences once the development was completed. They did not consider the level of increased traffic this would cause was sufficiently significant to give them grounds to refuse the application. The Council also consulted with the local highways authority (HA), a statutory consultee, as part of the planning process. The HA officer concluded the proposed development would not be expected to have an unacceptable impact on highway safety or the local highway network and raised no objection to the application. The Council’s planning officers were entitled to take the HA officer’s views into account when making their decision.
9. Ms X says the Council did not take account of her and others’ concerns about the access. Officers considered Ms X’s and others’ comments. The officer report summarised the comments received, which included objections based on the unsuitability of the access, the increase in traffic and the safety of its junction with the highway. Officers determined none of the concerns raised gave them a reason to refuse the application on material planning grounds.
10. Ms X says the Council did not consider the impacts use of the access would have on her property. The material planning issue relating to the use of the access is the increase in traffic, which officers considered in their planning report as set out above. We recognise Ms X may have other concerns about damage or wear on the access she also uses and has rights over. But those issues are not material matters for the Council to consider as the local planning authority. If Ms X believes there has been damage to the access or any part of her property, that would be a private civil matter between her and the person she considers has caused the claimed damage.
11. There is not enough evidence of fault in the Council’s planning decision-making process here to justify us investigating. When making their planning decision, officers considered the suitability of the access, took account of the comments it received and consulted with the HA as the relevant statutory consultee. We realise Ms X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
12. Ms X says the Council did not take account of her reports of the developer’s behaviour towards her and her family. But the actions of a planning applicant towards a resident are not material planning matters so it was not fault for the Council to not take that behaviour into account when determining the application. If Ms X considers she or her family members have been harassed or threatened by the applicant or anyone else related to the development, or that they have damaged her property, these would allegations of crimes she may wish to report to the police.
13. We note Ms X says the Council failed to respond to all her questions during the planning process. While a Council response might have been preferable, and the Council has apologised for not replying, there is no duty on councils dealing with planning applications to correspond with neighbours or objectors. The planning notification process is not a conversation or negotiation between councils and residents; it is an invitation to anyone who considers a proposed new development may affect their properties to comment on it. The planning authority’s role is to consider comments received when making their decision. The Council did this when summarising and responding to Ms X’s concerns about the application in its planning report. There is insufficient evidence of fault in this aspect of the Council’s decision-making process to warrant us investigating.
14. Ms X also says the Council delayed in completing its complaint process. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issue giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
15. The planning permission includes conditions the developer will need to meet before they can legally develop the site. These include the requirement for them to submit a CMP to the Council. We note Ms X seeks reassurances about the contents of the CMP and how it will deal with access and use issues during and after the construction phase. The function of the CMP is not to protect private interests such as Ms X’s access, nor to revisit or review the access issues already determined by the planning decision. It is for the Council’s planning officers to decide whether the CMP as submitted by the developer satisfies the terms of the relevant condition. The Council has not made any decision on the CMP condition, so there is no final outcome on this issue at this time and we cannot intervene in that ongoing process. Officers have advised Ms X that if they consider the CMP does not discharge the condition, the development would not be able to legally commence. If Ms X disagrees with any future Council decision on the CMP, this would require her to make a fresh complaint about this new Council decision. Ms X should complain to the Council first and would need to exhaust its complaint process before making any new complaint to us about it.

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Final decision

16. We will not investigate Ms X’s complaint because:
• there is not enough evidence of fault in the Council’s planning decision-making process to warrant us investigating; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issue which gave rise to the complaint.

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Investigator's decision on behalf of the Ombudsman