Summary: We will not investigate Mr X’s complaint about the Council’s planning committee meeting which granted permission for a development on land near his property. There is not enough evidence of fault in the planning process to warrant us investigating. We also cannot achieve the outcomes Mr X wants from his complaint.

The complaint

1. Mr X lives in a property near some open land. The land has received planning permission for residential development. Mr X complains:
1. the Council’s planning committee was unqualified to make an informed decision on the application;
2. the Council’s planning officer became aggressive during the debate;
3. Council officers directed the committee it had no choice but to grant the permission and warned of legal costs if the applicant appealed a planning refusal.
2. Mr X wants the Council to:
• review the planning committee meeting and the conduct of officers;
• re-run the planning meeting with experienced councillors who fully understand the planning process and the impact of their decisions;
• during that new meeting, tell committee Members that information provided by the planning officer is informed advice and not instructions.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I considered information provided by Mr X, the recording of the planning committee meeting, relevant online planning documents, and the Ombudsman’s Assessment Code.

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My assessment

6. 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 it 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.
7. Mr X considers the Council’s planning committee was unqualified to make an informed decision on the application. It is not within the Ombudsman’s remit to investigate the individual expertise of planning committee members. It is for a council’s committee to determine the suitability of members which serve on it. As they are elected members of the public, councillors will have a variety of levels of planning knowledge and experience but would receive advice, guidance and training to help them in their role. The Council’s planning committee as a whole was the body making the decision on the application. If any Members were concerned they had insufficient information about any aspect of the application, it was within their powers to defer their decision. They could then have asked officers to provide the information, advice or clarification they felt they needed before the application came back for determination at a later meeting.
8. Mr X believes the Council’s planning officer was aggressive during the meeting. I have watched the planning committee’s discussion of and decision on the relevant application. Mr X’s interpretation of the officer’s demeanour may differ because of his opposition to the application the meeting was deciding. But the recording of the meeting provides no evidence that the Council’s officer behaved aggressively or said anything aggressive in either tone or content at any time. There is insufficient evidence on this issue to warrant us investigating.
9. Mr X considers the planning officer directed the committee to grant the permission and they had no choice to do so. As explained above, the committee was the decision-making body here, not officers. There is no point within the committee meeting recording when the officer directed Members to grant the permission. The officer responded to questions and advised Members on material planning issues, in line with the position his department had taken in its report to the committee, to recommend approval of the application. That was the officer’s role. It was for Members to assess all the information before them, not just the officer’s replies at the meeting, to reach their decision. As also previously explained, if they were unsure or unclear on a matter after the debate, they had the option to defer their decision.
10. Mr X also complains an officer warned of possible costs for the Council if the applicant appealed a planning refusal. The context of the legal officer’s comments was that a committee Member had proposed a motion to refuse the application. Officers asked the Member to set out what would be the material planning terms for the refusal. The Member did this, the legal officer summarised the proposed refusal reasons and the member agreed the summary. The officer then gave their professional view that the reasons given would not be sustainable at appeal and may be deemed an unreasonable decision which would expose the Council to a claim for costs from the planning applicant. That was the role of the legal officer: to provide professional advice to members on any course of action they propose. Exposure of the public purse to legal challenge is a consideration for officers and members making decisions on a council’s behalf. It was not fault for the officer to provide that advice.
11. We note Mr X considers the officer should have also warned Members that someone opposed to the grant of the permission may also challenge it. But the likelihood of a planning applicant appealing a refusal of a permission is greater than a legal challenge against a grant of permission by another party. This is because the Council’s planning decision triggers a formal appeal right to the Planning Inspectorate, a relatively inexpensive and straightforward route to challenge the decision. In comparison, any third party challenging a council decision would have to apply for Judicial Review to a court at significant cost and associated risk. Mr X is concerned the legal advice persuaded a member to abstain from the vote. But that was that member’s choice, once the committee had heard the professional advice of the legal officer
12. There is not enough evidence of fault in the actions of officers or Members during the planning process or at the committee meeting to justify an investigation. We recognise Mr X disagrees with the decision. But it is not fault for a council or Members to properly make a decision with which someone disagrees.
13. Mr X wants the Council to review the planning meeting and the actions of its officers. Any review of its planning process or the conduct of an officer would be internal and personnel matters for the Council to decide on. We cannot order councils to conduct such reviews or take disciplinary action against a staff member. Mr X also wants the Council to re-run the planning process. To do this, the Council would need to revoke the permission it has granted. We cannot order councils to overturn planning decisions. That we cannot achieve the outcomes Mr X seeks from his complaint is a further reason why we will not investigate.

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Final decision

14. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s planning process to warrant us investigating; and
• we cannot achieve the outcomes he wants from his complaint.

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Investigator's decision on behalf of the Ombudsman