Summary: We will not investigate this complaint about the way the Council dealt with a planning application. We have not seen enough evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. Mr X complains the Council failed to follow the correct process when it approved a section 73 planning application.
2. He says the Council failed to carry out risk assessments on the impact of the proposal on the health and safety of the community.

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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.

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

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How I considered this complaint

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

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My assessment

6. Section 73 of the Town and Country Planning Act 1990 (s73 of the TCPA) allows a person to apply for planning permission to develop land without complying with, or by changing, conditions previously attached to an existing planning permission. Granting this request creates a separate, new planning permission alongside the original one.
7. Ther Council received an application under s73 of the TCPA to change the order of extraction phases at a quarry near Mr X’s home. The original permission allowing the extraction of mineral was approved in 2016. It is too late to complain about this decision.
8. The new s73 application requests permission to change the order of the extraction phases only. It does not seek to:
• increase the amount of mineral to be extracted
• extends the site boundaries; or
• extend the time allowed for mineral extraction to take place.
9. There is no requirement for the Council to carry out community safety risk assessments for a Section 73 application.
10. The Council consulted multiple relevant statutory consultees. It did not receive any objections subject to the imposition of certain conditions.
11. Because of the objections received from residents, the application was referred to the Council’s Development and Regulation Committee. Mr X could not attend the committee meeting, so he prepared a statement which was read out on his behalf. This noted his concerns about the impact of the proposal on the community.
12. The meeting minutes show the councillors heard from those objecting to the proposal and the applicant in support. Following the presentation and the public speakers, the committee members debated the application before voting to approve it.
13. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation 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 you disagree with the decision the organisation made.
14. I have considered the steps the organisation took to consider the issue, and the information it took account of when deciding to approve the application. There is not enough evidence of fault in how it took the decision and therefore we will not start an investigation.

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Final decision

15. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council considered the s73 planning application to justify an investigation.

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Investigator's decision on behalf of the Ombudsman