Summary: We will not investigate this complaint about the way the Council considered a planning application and refusal to provide information the complainant requested. We have not seen enough evidence of fault in the Council’s actions to justify an investigation. Also, it is reasonable to expect the complainant to refer his concerns about access to information to the Information Commissioner’s Office.

The complaint

1. Mr X complains the Council approved his neighbour’s planning application (which is within a Conservation Area) without visiting the site and considering the impact on his property.
2. He also says the Council removed false information from its website which showed it was not aware his property adjoined the application site. And it refused to provide it when asked for under the Freedom of Information Act.

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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
• there is another body better placed to consider this complaint.

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

4. The Information Commissioner's Office considers complaints about freedom of information. 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

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA). Or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. All decisions on planning applications must be made according to the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
9. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. Councils have a statutory duty to publicise applications and to consider representations (either for or against the application) which people make. But that is not the same as consulting with the public.
12. The Council received an application from Mr X’s neighbour to demolish an existing single storey extension and replace it with a new, larger one.
13. The Council put up a site notice which met the statutory publicity requirement for this application.
14. The Council did not receive any objections to the application from anyone, including Mr X.
15. The planning officer prepared a report on the proposal. They considered:
• scaled plans
• site photographs and aerial photographs which show Mr X’s property adjoining the application site; and
• a Planning and Heritage Statement (which clearly states the application property is semi-detached) and Flood Risk Assessment provided by the applicant’s agent
16. The Ombudsman looks at procedural fault in how the Council came to its decision, we do not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
17. The case officer’s report provides an assessment of the proposal. There is no statutory requirement for a planning officer to visit the site and the Council is satisfied it had enough information to make an informed decision. I am satisfied the Council followed the proper process before deciding to approve the planning application under its scheme of delegation.
18. Mr X says the Council removed information from its planning website and refuses to provide it when asked for under the Freedom of Information Act 2000. He says there is an “element of criminality associated with the deletion and suppression of a piece of material evidence.” 
19. If Mr X believes the Council is withholding information, it is reasonable to expect him to refer this point to the Information Commissioner’s Office (ICO). That is because this is the body with specific powers and expertise to look into Freedom of Information Act and Environmental Information Regulations issues. The Information Commissioner’s Officer has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.
20. The Ombudsman cannot investigate criminal action. Mr X should refer his concerns about criminality to the police.

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Final decision

21. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the way the Council considered his neighbour’s planning application
• it is reasonable to expect him to refer his concern about withholding information to the ICO; and
• we cannot investigate criminal acts.

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Investigator's decision on behalf of the Ombudsman