The Ombudsman's final decision:
Summary: Mrs B says the Council failed to properly consider the highways impact of a development before giving highways advice on two outline planning applications. The first consultation response was inadequate as it did not explain the highway officer’s reasoning although that did not cause an injustice because the District Council refused the application. There is no fault in the Council’s consideration of the second outline application.
- The complainant, whom I shall refer to as Mrs B, complained about the highways consultation responses given for a proposed development close to her property. Mrs B complained the highways response did not properly consider the highways impact of the proposed development and did not challenge the information provided by the applicant.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mrs B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Mrs B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided;
- considered Mrs B’s comments on my draft decision; and
- gave the Council an opportunity to comment on my draft decision.
What I found
- The complaint concerns the proposed development of a site to provide leisure facilities. The District Council is responsible for processing planning applications. However, the Council is a statutory consultee on highways issues. The Council therefore gave a consultation response to the 2014 outline planning application. The Council raised no highways objections to the application. However, the District Council refused the application, partly on highways grounds. The applicant later appealed that decision, although I understand the appeal has not gone forward because the applicant secured outline planning permission for a revised scheme in 2016. The Council again raised no highways objections to that application. At some point in the future the District Council will ask the Council to comment on any reserved matters application.
- Mrs B says the Council, in providing highways advice on two planning applications, failed to properly consider the highways impact. I have some concerns about the highways advice given to the District Council on the first outline planning application. That is because although the development is one which had attracted significant local opposition on highways grounds the highways officer, in offering no objections, did not explain the reasons for the recommendation. While I would not expect a highways consultation response to cover each and every issue raised I would expect the response to explain the overall reason for the recommendation. Failure to do that is fault.
- I do not, however, consider that failure to give reasoning for the recommendation resulted in any significant injustice to Mrs B. That is because the District Council, which is the Council responsible for determining the planning application, refused the application partly on highways grounds as it was not satisfied with the information provided by the developer. So, although I recognise Mrs B believes district councils give significant weight to highways advice it is clear the lack of content in the highways officer’s consultation response did not prevent the District Council taking a different view. I therefore do not intend to pursue the issue of the advice on the first application further.
- The situation is different in relation to the 2016 application. For that application the highways officer again raised no objection to the proposal. However, unlike with the 2015 advice, the highways officer explained the basis of his decision. In particular, the highways officer referred to the transport assessment and travel plan framework provided by the applicant. The response recorded the officer’s view the transport assessment dealt in detail with access. The response recorded his view the transport assessment considered all the relevant details such as highway safety and the impact on the surrounding highway network and sustainability. The highways officer also referred to the travel plan framework outlining proposals for traffic impact mitigation through sustainable transport measures. The consultation response went on to refer to the updated traffic flow and forecast figures from the transport assessment submitted for the previous application. The response also referred to the additional measures proposed with the revised application which included improvements to the existing site access. It recorded the officer’s view he was satisfied the modelling in the transport assessment of the access junctions and surrounding network showed they would cope within their practical capacity. It recorded the officer’s took into account the proposal to upgrade the existing access and proposed transport mitigation measures secured. In light of that, I am satisfied the consultation response provided on the 2016 application was a significant improvement on the 2015 advice and properly recorded the highways officer’s view. I therefore have no grounds to criticise the Council in relation to the 2016 advice. Mrs B may have wanted more and may disagree with the assessment but as I am satisfied the highways officer reached his decision properly I have no grounds to criticise it.
- In reaching that view I am aware Mrs B says the highways response failed to consider the impact of the volume of traffic on the local network. I do not agree. The highways response refers to the details in the transport assessment covering highway safety and the impact on the surrounding network. The response refers to the implementation of sustainable transport measures to mitigate the impact of traffic. The response also refers to the updated traffic flow and forecast figures provided by the applicant and the improvements to the existing arrangements. I recognise Mrs B is concerned about the Council relying on the information provided by the applicant, which she considers inaccurate and misleading. It is clear from the highways response though that the highways officer has taken account of the information in the transport assessment and travel plan framework provided by the applicant. The fact the highways officer does not raise concerns about the modelling used by the applicant satisfies me the officer did not share Mrs B’s concern. Clearly Mrs B takes a different view. However, it is not the role of the Ombudsman to comment on the merits of the highways officer’s judgement, unless there is evidence of fault in how he reached that judgement. I have found no evidence of fault here. Clearly there is a difference of opinion about the content of the information provided by the applicant but holding a different opinion is not fault.
- The same applies to comments made by the Planning Inspector when considering an appeal against the refusal of planning permission by the District Council. The Planning Inspector raised concerns about the traffic estimates relied on by the applicant and made clear he would need some more information to satisfy himself those estimates were realistic. Mrs B puts that forward as evidence the Council did not properly consider the information submitted by the applicant when providing the consultation response. As I said in the previous paragraph though, holding a different opinion or reaching a different judgement to another qualified officer is not fault. Nor is it the Ombudsman’s role to adjudicate on a difference in opinion. In this case I am satisfied the highways officer took into account the information provided by the applicant and explained in his consultation response why he did not have concerns about the application on highways grounds. That is a matter of judgement and as that judgement has been reached without fault there are no grounds for the Ombudsman to comment on it.
- Mrs B says her organisation provided an independent traffic expert’s report and accident data which gave a different view of the nature of the surrounding roads. While it would have been helpful for the consultation response to address the issues raised I do not consider that warrants a finding of fault. That is because, as I said earlier, I am satisfied the highways officer considered the report provided by the applicant and the modelling used given it is referred to in the consultation response. As I also said, if the Council had concerns about the information relied on by the applicant I would have expected that to have been mentioned in the consultation response. The fact it was not satisfies me the Council did not share Mrs B’s concerns about the content of the various reports provided by the applicant. In those circumstances there was no reason for the Council to require further testing.
- Mrs B says highways failed to consider the impact on the conservation area which had recently been designated. As far as I am aware though, the designation of that area as a conservation area does not prevent development. It seems to me the highways implications remain the same. In any event, I would expect the District Council’s planning committee to consider the impact on a conservation area. I am not convinced the highways response should have dealt with that. I therefore do not criticise the Council.
- Mrs B says the Council gave the same reply for the 2016 application as it gave for the 2014 application even though residents had questioned the information in the first application. I have already said I have seen no evidence to suggest the Council shared Mrs B’s concerns about the information provided by the applicant. I am, however, satisfied the highways response for the 2016 application was far more detailed than the one provided for the 2014 application. I therefore could not say the Council had simply produced a pro forma response and not considered the various issues. It is not, in any event, surprising the Council raised no objection to the 2016 application given it had also not raised any objection to the earlier application. That is not fault. I am satisfied the Council considered the new information submitted by the applicant given it is referred to in the highways response.
- I do not agree with Mrs B’s allegation the Council gave no reasoning for not having any objection on highways grounds for the 2016 application. As I said earlier, I am satisfied the highways response referred to the information the highways officer relied on. I therefore have no grounds to criticise it.
- Mrs B says the Council provided its consultation response on the 2016 application before it received new survey data. As I understand it, the Council did not receive the updated data until August 2016 but provided the consultation response in July 2016. It seems to me though the only additional information the applicant provided in August 2016 related to whether the weighting of 1.5 the applicant had given to considering future transport implications was sufficient. I am satisfied the weighting of 1.5 was included in the transport assessment considered by the highways officer. As I said earlier, the highways response referred specifically to that transport assessment and the modelling used. Again, if the Council had concerns about the modelling used by the applicant I would have expected that to have been recorded in the consultation response. The fact it was not satisfies me the highways officer did not have concerns about the weighting being applied by the applicant. I therefore do not consider it likely further information about why the weighting was appropriate, which I understand was provided in August 2016, would have influenced the Council’s response. I have therefore not pursued that point further.
- Mrs B says the Council unreasonably failed to object to the application on highways grounds when the District Council planning officer had said in 2013 the roads were not suitable for the development. While I understand Mrs B’s concern about different views being put forward, highways officers have expertise in highway matters and use their professional judgement to reach a decision. Highways officers are not bound by the views of a District Council planning officer. Had the Council provided a similar type of response on the 2016 application as it did for the 2014 application I would have concerns. That is because the original response did not explain the highways officer’s view. However, I am satisfied the highways officer’s view is clear from the 2016 response. Clearly the highways officer takes a different view than Mrs B does about the various issues but, as I have made clear, reaching a different view is not fault. As I am satisfied the highways officer reached his view after considering the information provided by the applicant I have no grounds to criticise it.
- Mrs B’s main concern is when the applicant puts in a reserved matters application the Council will not provide a detailed highways response unless it is criticised for the responses it gave on the other two planning applications. As I have said, there is fault in the advice given on the first application because the highways officer provided no detail behind his reasoning for recommending approval. However, reasoning was provided with the 2016 application, albeit Mrs B does not agree with that reasoning. It is, in any event, for the District Council to consider any reserved matters planning application and it will need to satisfy itself on the relevant matters which will include highways. I recognise the views of a highways officer carry weight with planning committees. However, it is clear the District Council’s planning committee is prepared to go against highways recommendation if it is not satisfied with the information provided. That is what happened in 2014. I am encouraged though the response provided in 2016 is more detailed than the response provided for the first application. I see no reason why the Council will not properly consider highways issues when any reserved matters application is put forward.
- I have completed my investigation and find fault in part of the complaint which I do not consider caused an injustice to Mrs B.
Investigator's decision on behalf of the Ombudsman