Summary: We will not investigate this complaint about advice given to a Planning Committee about national rail works. There is not enough evidence of fault by the Council, and our involvement could not achieve a different outcome.

The complaint

1. Mr X spoke at a Planning Committee that considered an application to build a bridge over a new high speed train line (HS2). He says the Council did not consider what he said, and gave contrary advice to members of the committee. Mr X says his professional reputation is damaged and he wants the Council to retract the advice it gave to members of the Planning Committee and give it the correct advice.

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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:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The HS2 Act grants overall permission for the project subject to separate approval from the relevant local council for some design and construction matters. This is to ensure there is some local planning control over construction works and that local authorities have a say in works that might have an environmental impact or affect local amenity.
6. The government’s contractor amended the design of a bridge it included in an application. This meant the proposed works were no longer considered an ‘alignment’ but as an ‘upgrading’ of the bridge. As it was possible changes to the design could have an environmental impact on the local area, certain criteria needed to be met for the proposed works to still fall within the S17 process. One of these criteria is that an Environmental Assessment (EA) must have been carried out to cover the works. The Council takes the view the amendment to the bridge design has been covered by an EA.
7. Mr X takes a different view and does not agree the works have been covered by an EA. He wrote to the Council to say this. The Council then sought legal advice on the matter and consulted its legal and planning teams. Following this advice, the Council took the view that the works could be considered under the S17 process and advised the Planning Committee as such when it determined the application. The Council included Mr X’s concerns in the committee report and included the relevant legal framework.
8. This matter centres on a disagreement about whether the proposed works for the bridge fall within the S17 process. This disagreement arises from a difference in interpreting the HS2 legislation. Mr X has interpreted the legislation in one way and the Council, its legal team, and an independent barrister take a different view. The Council does not have to disclose legal advice to members of the public as Mr X wants.
9. The Council does not say Mr X’s interpretation is wrong and does not agree his professional reputation has been damaged; it accepts that it would be reasonable for an alternative view to be held on this point. If Mr X believes the Council has damaged his reputation in some way it would be reasonable for him to make a claim for defamation in court. The Ombudsman has no power to consider the legal tests for defamation; only the courts can do that.
10. There is not enough evidence of fault by the Council to warrant an investigation; it is entitled to interpret the legislation differently to Mr X and considered his representations. We could not tell the Council it must interpret the legislation in the same way as Mr X, nor could we tell it to retract its advice to the Planning Committee. Interpretation of the relevant law is properly a matter for the courts, not the Ombudsman.

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Final decision

11. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council, and investigation would not achieve the outcome Mr X wants because we have no power to decide between differing interpretations of the law or defamation claims.

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Investigator's decision on behalf of the Ombudsman