Summary: We will not investigate this complaint about the Council granting planning permission for a development next to the complainant’s home. There is insufficient evidence of fault in the way the application was determined. Additionally, it would be reasonable to allow the Council an opportunity to consider a complaint about its handling of the complainant’s asbestos concerns.

The complaint

1. Ms X complains about the Council granting planning permission for a development at a neighbouring property. In particular, she says:
• insufficient information was provided to enable objectors to request the decision be made by the Planning Committee.
• the case officer’s private business interests amount to a conflict of interest, and the Council failed to adequately address this point in the subsequent complaint responses.
• the Council failed to take action or responsibility with regard to a breach of covenant and illegal asbestos handling and removal.
• the Council failed to seriously consider all the material planning issues put forward in the seventeen objections to the application, in breach of the Human Rights Act (HRA).
• there was an unethical delivery of the planning decision, with underhand tactics around supporting documents being publicly available.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• 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))

5. With regard to the first bullet point, we can 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)
6. The Ombudsman also cannot decide if an organisation has breached the HRA, as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of a person’s rights in its treatment of them. Organisations will often be able to show they have properly taken account of the HRA if they have considered the impact their decision will have on the individuals affected.
7. Finally, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered:
• information provided by Ms X.
• information about the planning application, as available on the Council’s website.
• the Council’s scheme of delegation in its Constitution.
• the Ombudsman’s Assessment Code.

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My assessment

9. I appreciate Ms X is unhappy about the Council’s decision to approve her neighbour’s planning application.
10. But 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, and our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
11. I consider there to be insufficient evidence of fault in the way the Council reached its decision on the planning application, so we will not start an investigation. In reaching this view, I am mindful that:
• information about the Council’s scheme of delegation is available online in the Council’s Constitution. It was open to the Parish Council or a Member to ‘call‑in’ the application, but they did not do so. The application therefore did not meet the criteria for being determined by the Planning Committee.
• the Highway Authority did not raise an objection to the application.
• objections to the application are summarised in the officer report. The volume/strength of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission.
• the officer’s recommendation report demonstrates the relevant material planning considerations have been taken into account. The Council was entitled to reach its own professional judgement on each of these factors, even if Ms X disagrees with the conclusions reached. And with particular reference to paragraph 6 above and the HRA , I am satisfied the Council has properly considered the impact the development has on Ms X’s amenity.
• covenants, boundary disputes and damage to private property are not matters which could be taken into account when determining the planning application.
• I have seen no evidence to suggest the case officer’s private business interests affected his recommendation on this application, which was also reviewed by a senior planning officer before permission was granted.
12. As we are not investigating the substantive issue being complained about (the handling of the planning application) it would not be a good use of our resources to pursue any associated concerns about the Council’s complaint process in isolation.
13. And with reference to paragraph 3 above, if Ms X is unhappy about the way the relevant department considered her concerns regarding the removal of asbestos, then it seems reasonable to expect her to pursue that through the Council’s complaint process first. We can consider a complaint once she receives the Council’s final reply on that issue.

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Final decision

14. We will not investigate Ms X’s complaint because there is insufficient evidence of fault in the way the Council determined the planning application, and part of the complaint appears to be premature.

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Investigator's decision on behalf of the Ombudsman