Summary: There was no fault in how the Council reached its decision to grant planning permission for development near Mr X’s home.

What I have investigated

3. I have investigated Mr X’s complaint about the Council’s decision to grant planning permission but not his linked complaint about the conduct of a local councillor. Mr X has made a separate complaint to the Ombudsman about the Council’s handling of his councillor conduct complaint.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared, where possible, the Council’s comments and supporting papers with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background

Planning applications

7. Most development needs planning permission from the local council. The developer decides on the development and when to apply for planning permission and provides relevant supporting information. Once the Council has a complete application, it must consider it on its individual merits and decide whether to grant or refuse planning permission.
8. Usually, councils have eight weeks to decide an application. Within the eight weeks, councils must publicise applications to give people an opportunity to comment on the development. Most councils, if using letters to publicise an application, make clear they cannot correspond with objectors about an application. This is usually because of the number of applications council officers handle each year.
9. After eight weeks, the developer can assume the council has refused planning permission. The developer can then appeal to the independent Planning Inspectorate (PINs) and ask it to decide the application. However, developers can agree to extend the eight weeks and give the council more time to decide the application.
10. Councils should make planning decisions in line with relevant policies in their local plans unless material planning considerations indicate otherwise. Material considerations concern the use and development of land in the public interest and not private issues, for example, the developer’s conduct or house prices. Material considerations include, for example, overlooking, traffic generation and noise. Peoples’ planning and land use comments on development will be material planning considerations. Councils must take such comments into account in deciding applications, but they do not have to agree with those comments. The Government’s National Planning Policy Framework (NPPF) is also a material planning consideration.
11. Councils should review their local plans and keep them up to date. The law sets out steps councils must follow to prepare and, eventually, adopt a new local plan. A local plan may be out of date or have no policy relevant to a development proposal. In such cases, the NPPF says an application must be decided in line with a ‘presumption in favour of sustainable development’. The NPPF says this means granting planning permission unless its policies either indicate development should be restricted or any adverse impacts of the development significantly and demonstrably outweigh the benefits. The NPPF also says local plan housing policies should be considered out of date if a council cannot demonstrate it has a five-year supply of deliverable sites for housing development.
12. Planning policies and material planning considerations may pull in different directions. For example, they may support new housing and protect living conditions enjoyed by existing residents. While councils must take account of relevant policies and material planning issues, they may give competing considerations different weight. The NPPF says councils may give increasing weight to emerging policies as new local plans pass through each legal step. It is for the decision maker to decide the weight given to any material consideration in deciding an application. In practice, this means councils can grant planning permission for development that does not meet all relevant planning policies.
13. There is no legal requirement to visit an application site, but a planning case officer often will visit a site before writing a report on an application. The report will assess the development proposals, taking account of any competing or conflicting policies and material considerations. And, having weighed and balanced the key planning issues, the case officer usually ends the report recommending either the grant or refusal of planning permission.
14. Councils have rules about whether their officer(s) or councillors decide a planning application. In practice, a senior council officer(s) decides most applications using powers given to them by the council. Here, the Council’s rules give officers a wide discretion to decide applications subject to listed exceptions. For example, if either the Parish/Town Council or at least three people object, Council officers must contact the local councillor for the application site area. The councillor can either agree to officers deciding the application or, giving planning reasons, refuse, which means the Council’s planning committee make the decision.
15. Whether councillors or a senior officer(s) decide applications, they will have the case officer’s report and access to the application planning information. Councillors and senior officers may give different weight to relevant policies and other material considerations. So, they do not have to agree the case officer’s report recommendation.
16. Councils often place conditions on their planning permissions, which conditions aim to control the approved development. For example, a condition may say the developer has to landscape part of the site to screen the development and then look after the new planting for, say, five years.
17. Sometimes councils decide to grant planning permission subject to the site owner and developer completing a ‘planning obligation’ or ‘section 106 agreement’. These are legally enforceable documents setting out what developers must do to mitigate the impact of their development. They often provide for developers to pay towards added and or off-site community facilities needed because of their development. For example, large housing developments usually increase demand for local school places and, if schools are full, they may need extra classrooms.
18. Planning permission is granted when a council issues its formal written decision on an application to the planning applicant. Where councils approve an application subject to a section agreement, they issue their formal planning decision after completion of the agreement. Councils must tell objectors when they issue their formal decision, so objectors know if an application gets or is refused planning permission.

The Conservation of Habitats and Species Regulations 2017 (as amended) (‘the Rules’).

19. The law gives some land special protection because, for example, it contains rare plants and or endangered animals or nesting birds. Such protected land may be called, for example, a ‘special area of conservation’ (SAC) or ‘special protection area’ (SPA). Councils must consider the effect of development on such protected land when preparing local plans and deciding planning applications. If development policies or proposals (whether alone or in combination with others) are likely to have a significant effect on such protected land, the Rules say councils must carry out an ‘appropriate assessment’.
20. The Ashdown Forest is within the Council’s area. Large parts of Ashdown Forest have special protection, including as both a SAC and a SPA.
21. Natural England (NE) is the national body with responsibilities for advising on and promoting nature conservation and peoples’ access to the countryside.

A brief summary of what happened

22. The Council was preparing a new local plan that would replace older, adopted, policies including those in its 1998 local plan. The Council consulted NE. In reply, NE said the plan was likely to have a significant effect on the Ashdown Forest SAC. NE advised the Council to carry out an ‘appropriate assessment’ under the Rules (‘the Assessment’).
23. Meanwhile, the Council received a planning application (‘the Application’) for housing development (‘the Development’) near Mr X’s home. The Application site was close to the Ashdown Forest. The Council publicised the Application and received objections, including from Mr X. Mr X said the Development was unsuitable in size and scale for the site, its design was out of character with the local area, and it would badly affect existing residents’ living conditions. Mr X also pointed to inaccuracies in information sent with the Application and said there was a technical problem on the site that would impede building work.
24. A Council planning case officer made a site visit and prepared a report (‘the Report’) assessing the Application. The Report outlined local planning policy and referred to the emerging new plan, which currently had “limited” and “low” weight, and the NPPF. The Report also summarised third party comments on the Application, including Mr X’s objections, and said the responses were available to read in full on the Council’s website.
25. The Report assessed the Development against planning policies. The Report said the Development conflicted with policies in the adopted 1998 plan. The Report also said the Council did not have a five-year supply of housing land and this ‘weighed in favour’ of the Development. However, the NPPF presumption in favour of sustainable development did not apply because of the need to protect the Ashdown Forest SAC and SPA. The Report said proposals that would increase traffic pressures could not be allowed until mitigation measures were in place to protect the Ashdown Forest. The Report, referring to emerging planning policies, said the Development would need a section 106 agreement to fund measures to protect the Ashdown SAC and SPA.
26. The Report also assessed the Development against other key planning issues. In considering the impact of the Development on existing homes, the Report referred to peoples’ objections. The Report said, with conditions on any planning permission, there would be no adverse impact on neighbouring amenities and privacy. Other planning issues covered in the Report included the design and layout of the Development, access, and landscaping. The Report also referred to the technical issue Mr X raised in his objection. The Report described that issue as a ‘constraint’ to developing the site and resolving the problem was a matter for other legislation.
27. After balancing the planning issues, the Report found the adverse impacts of the Development did not significantly and demonstrably outweigh its benefits. The Report recommended the grant of conditional planning permission after completion of a section 106 agreement. A senior Council officer considered the Report and agreed the recommendation. However, objections to the Development meant the local councillor needed to agree, or refuse, to allow the officer’s decision (see paragraph 14 of this statement). The Council’s officers referred the case to the local councillor. The local councillor agreed the officers’ delegated decision to approve the Application. The Council did not place a copy of the Report on its website.
28. Meanwhile, the Council had issued updates about the emerging local plan, including its progress with the Assessment. The Council also wrote to housing developers, including the Application developer (‘the Developer’). In its first letter to the Developer, the Council said it would decide the Application once it carried out the Assessment and subject to any further NE advice.
29. The Council sent its second letter to the Developer soon after the local councillor agreed the officer delegated decision on the Application. The second letter said the Council had carried out the Assessment finding “there is an adverse effect on the integrity of the Ashdown Forest SAC”. The Council said it was therefore considering the mitigation measures needed to allow housing development to go ahead. The Council’s third letter said it was finalising ‘a tariff for an off-site mitigation package’ for publication and consultation, including with NE. The letter said the Council would also work with housing developers to complete any necessary section 106 agreement to secure payment of the tariff. The Council’s fourth letter said it was considering NE’s response to the Assessment and continuing work on section 106 agreements with developers. In a fifth letter, the Council said it was taking longer than expected to consider comments, including from NE, but it would soon complete the Assessment. In each letter the Council asked the Developer to agree an extension of time to decide the Application.
30. As several months had passed since Mr X objected to the Application, he asked the Council for an update. The Council told Mr X, officers, using delegated powers, approved the Application subject to mitigation measures for Ashdown Forest. The Council recognised the Development had “some” impact on nearby homes but not the “significant adverse” impact that would justify refusing planning permission. The Council said it would publish a report to explain its decision (and this happened when, over three months later, the Council placed the Report on its website).
31. The Council then published draft guidance about mitigation measures for Ashdown Forest (‘the Draft Guidance’). The Council also consulted NE on several planning applications, including the Application. NE’s response referred to ‘standard advice’ for applications near Ashdown Forest. NE said with mitigation measures secured by planning conditions and or section 106 agreements, it had no objection to the listed applications, including the Application.
32. The Council then started to prepare a section 106 agreement to secure mitigation measures for the Application. The section 106 agreement was completed about three months later. The Council then issued conditional planning permission for the Development. It was nearly 18 months since the Council had received, and almost a year since officers approved, the Application.
33. Meanwhile, Mr X had continued his correspondence with the Council about the Application and made a formal complaint. Mr X set out in detail why he believed the Council’s decision was wrong. In summary, Mr X raised three key areas of concern:

• existing and emerging local planning policies and the five-year supply of housing land;
• the consideration of material planning issues; and
• delegated decision making.

34. On planning policy, Mr X said the Development was clearly contrary to planning policy and so should be refused. However, the Council deliberately delayed the Application so it could assess the Development against the more favourable emerging policies. But, the minor benefit of the Application being for new housing was undermined as the Council was refusing planning permission for housing development because it had a five-year supply of housing land.
35. On planning issues, Mr X said he had told the Council about errors in the Application and technical problems on the site. Mr X also said his objections had provided many planning reasons to refuse permission. However, the Council had ignored his, and other residents’, comments and so not properly assessed the Application. And, when the Council published the Report, Mr X sent detailed comments challenging its contents.
36. On delegated decision making, Mr X said the Application was controversial and the many objections showed it was not suitable for an officer decision. If officers were confident their decision was correct, there could be no harm referring the Application to the planning committee, as councillors would have the same view.
37. In summary, the Council’s response on policy issues was to refer to the Report, which said the Development was contrary to 1998 adopted planning policies. The Council also accepted it had had the Application, and several other housing applications, for many months while preparing the Draft Guidance. Work on the Draft Guidance increased the time between delegated decisions and the issue of planning permissions. After publication of the Draft Guidance, it was issuing planning permissions, including for the Application, on completion of necessary section 106 agreements. Once it issued all these planning permissions, they should show the Council had a five-year supply of housing sites.
38. On planning issues, the Council recognised the ‘clear disagreement’ between it and Mr X about the interpretation and application of planning guidance. The Council denied ignoring Mr X’s and other peoples’ concerns. It said the Report identified and addressed material planning issues, including those raised by objectors. The Council pointed to the Report as saying the technical problem and its resolution was a matter for other legislation. And, failure to resolve the problem would stop the Development. The Council said it had correctly processed the Application and, while it recognised Mr X held a different view about the acceptability of the Development, it stood by its decision.
39. On delegated decision making, the Council said it had acted correctly in getting the local councillor’s agreement to a delegated decision. Council officers had made that delegated decision. Mr X’s correspondence did not raise new planning issues that officers had not considered in reaching that decision. So, there was no need or justification to refer the case to the planning committee before issuing planning permission for the Development.

Consideration

Introduction

40. For most people, they area in which they live and work is important. I therefore recognise the strength and depth of Mr X’s views about the Council’s handling of the Application. My role is to consider whether the Council acted with fault in reaching its decision to grant the Application planning permission. In doing so, I have taken account of all the information provided by Mr X and the Council. And yet, I have not addressed (and find no need to) each detailed point raised in their correspondence. The focus of my investigation has been how the Council processed the Application based on the four key issues in Mr X’s complaint (see bullet points at paragraph 1).

Delay and adopted and emerging planning policy

41. Mr X says he does not ‘simply disagree’ with the Council’s planning decision. Rather, he says the decision is unsound as it conflicts with planning policy. And, the Council deliberately delayed its decision as emerging policies gave more support to the Development than existing adopted policies.
42. There is no dispute it took the Council many months to issue a formal planning decision on the Application. And yet, the Report shows the Council, when officers made the delegated decision to approve the Application, considered the Development against both its adopted 1998 policies and the emerging policies. I do not therefore find the Council delayed so it could later consider emerging policies. The Report also shows the Council’s policy start point was its adopted local plan policies. And the Council found the Application inconsistent with those adopted policies, which meant refusing planning permission unless material planning considerations indicated otherwise. The Report shows the Council went on to consider other material planning considerations, including its emerging planning policies. The Report shows the officers gave emerging policies ‘limited’ and ‘low’ weight. On this evidence, I therefore find the Council correctly approached planning policy issues (see paragraphs 10 to 12). (See also paragraph 49.)
43. However, a link exists between emerging policy and the time the Council took to issue planning permission for the Development. The Report identified the need for a section 106 agreement to secure measures to mitigate the impact of the Development on Ashdown Forest. The officer delegated decision was subject to completion of that section 106 agreement. Section 106 agreements can take months to complete. And, here, the Council had not then published the Draft Guidance about the Ashdown Forest mitigation. Once published, the Draft Guidance would help the Council secure consistent mitigation measures for approved development near the Ashdown Forest. The wait for the Draft Guidance meant formal decision notices on several planning applications took much longer than eight weeks.
44. While preparing the Draft Guidance, the Council could ask developers for more time to decide planning applications (see paragraph 9). And, here, the Council regularly asked the Developer to extend the time it had to issue a formal decision. It was for the Developer to agree time extensions or, if not, to appeal to PINs. The Council did not have to update other interested parties about those time extensions. What the Council needed to do, and did, was tell Mr X when it issued planning permission for the Development, which was after completion of the section 106 agreement. So, while I recognise Mr X’s frustration at the lack of information, which eventually led him to contact the Council, I have no grounds to find fault here. However, I thank the Council for advising that it will, in future, place officer reports on its website following delegated approval of applications.
45. For completeness, I have also considered what Mr X says about the Council’s failure to explain its refusal of other planning applications before publication of the Draft Guidance. The Council must decide each planning application on its own merits (see paragraph 7). And material planning considerations (and how they are balanced and weighed) may vary from proposal to proposal and for different sites. This will affect the Council’s planning decisions. The Council has also explained the Draft Guidance would not apply to every development proposal. And, where mitigation was not achievable (and or other planning considerations weighed against a proposal), it did refuse planning permission. Indeed, this is shown in PINs appeal decisions referred to in correspondence between Mr X and the Council. I therefore find the evidence shows why the Council could and did refuse planning permission on some applications while preparing the Draft Guidance.
46. Overall, I do not find fault by the Council on this part of Mr X’s complaint.

Housing land supply

47. Mr X says the Council manipulated information to show it did not have a five-year supply of housing land so it could justify the grant of planning permission. In support of his view, Mr X refers to Council emails from 2015, copies of which he provided in responding to a draft of this statement. I have carefully considered these emails but do not share Mr X’s concerns about them. The emails suggest officers had differing views about the robustness of the ‘methodology’ used to calculate the Council’s housing land supply. The issue of ‘robustness’ being of particular importance to officers that might need to defend the Council’s housing supply figures at any appeal against the refusal of planning permission. However, housing supply figures are not ‘fixed’, and the 2015 emails predate Mr X’s complaint. I find no good reason to further investigate the 2015 correspondence. My focus is on what the Council said about housing supply when considering the Application.
48. The Report says the Council had a housing land supply of 2.61 years. Mr X’s correspondence refers to other applications for housing development considered by the Council alongside the Application. The applications include cases where developers appealed to PINs against the Council’s refusal of planning permission. PINs formal decisions on those cases say the Council had a housing land supply of 2.62 years. So, the evidence shows PINs, an independent appeal body, found the Council did not have a five-year supply when it was considering the Application. I do not therefore find the Council was at fault in saying it did not have a five-year supply of housing land when deciding the Application.
49. No five-year supply of housing land meant the Council’s adopted housing planning policies were out of date (see paragraph 11). And, given the early steps taken by the Council, emerging policies in its new local plan could carry little weight (see paragraph 12). The Report correctly reflects the position of the adopted and emerging plans. The Report also, in referring to the NPPF ‘presumption’, correctly recognised it did not apply automatically because of protections given to the Ashdown Forest as a SAC and SPA (see paragraph 25). I therefore find no fault in how the Council handled the housing supply issue in deciding the Application.

Application information and impacts on existing homes

50. Mr X also says the Council’s decision is unsound because the Development is wholly inappropriate for the site. And, when Mr X objected to the Development, he pointed to many errors in the information supporting the Application, including measurements. Mr X also strongly disputed what the Application (and, later, the Report) said about the Development not badly affecting existing homes. Again, Mr X says his concerns go beyond ‘simply disagreement’ with the Council’s planning decision.
51. Developers are responsible for preparing planning applications and the contents of supporting papers. In publicising applications, people, like Mr X in this case, may, when commenting, dispute anything said or shown in an application. A council planning officer will also usually visit the site and so may check the information shown on plans and in supporting documents. When assessing an application, councils will take all relevant planning information into account and not just the application.
52. I agree with Mr X the Application plans did not show dimensions for the new housing but, the law does not require this. What developers must do, and the Developer did, is provide scaled plans. This allowed the Council’s officers, using the relevant scale, to work out the size of new buildings. And, on balance, I am satisfied the Council has provided evidence that a site visit took place. The Development planning permission also includes information about the Party Walls Act 1996, which concerns building work on or close to a shared boundary. The reference to this Act shows the Council’s awareness the proposals included new buildings on or close to the site boundaries. Overall, I find the Council could properly understand, and assess, how the Development would ‘fit’ within the site.
53. Mr X says the Council ignored his objections to the Development and this led to an unsound planning decision. The Report provides the Council’s written planning assessment of the Development. The Report both summarised peoples’ comments, including Mr X’s objections, and confirmed those comments were available to read in full on the Council’s website. The Report identified, and addressed, the impact on existing homes as a key planning issue in deciding the Application. The Report also provides evidence the Council the understood, and considered, the size, layout, and design of the Development. The Report also shows the Council took account of the technical problem referred to in Mr X’s objection, which was, later, the subject of a ‘note’ on the planning permission. So, having carefully considered the Report, I do not find the Council ignored Mr X’s objections.
54. I recognise Mr X may have expected more detail in the Report of the Council’s consideration of objections. And yet, the Council’s consideration of the key planning issues, including the impact on existing homes, is proportionate to the Development. I am therefore unable to find the Council acted with fault in handling objections. Having correctly taken account of objections, the Council could reach a different view to Mr X, and other objectors, on the planning merits. In the Council’s view, the impact of the Development on existing homes was acceptable (with planning conditions) and the overall balance of the planning issues favoured the grant of planning permission. So, unfortunately for Mr X, the Council did reach a different view on the planning merits of the Development. As I find no evidence of fault in how the Council reached its view, I cannot question its planning decision (see paragraph 4).

Delegated decision making

55. Mr X says planning committee councillors, not officers, should have decided the Application. And, in his correspondence with the Council, Mr X repeatedly asked the Council to refer the Application to its planning committee while it was preparing to publish the Draft Guidance. The evidence shows the Council explained to Mr X how it reached its delegated decision, which later led it to issue planning permission for the Development. The Council also told Mr X why it would not refer the Application to the planning committee before, later, issuing planning permission. I recognise Mr X continues to find the failure to refer the Application to the Council’s planning committee unacceptable.
56. I have considered relevant information from the Council’s constitution. This shows the Application fell within exceptions listed to the general delegation given to the Council’s senior officer to decide applications (see paragraph 14). The exception says officers cannot approve an application to which it applies if the local councillor for the application site does not agree to a delegated decision. The evidence shows officers acted correctly in contacting the local member, who sat on the Council’s planning committee, about their intention to approve the Application. The local councillor agreed that a delegated decision could be made on the Application. On this evidence, I find no fault in the Council’s actions.
57. When the local councillor agreed to a delegated decision, that decision, to grant the Development planning permission, was made. I have already found that formal planning permission did not follow quickly because the decision was subject to completion of a section 106 agreement. And completion could not take place before publication of the Draft Guidance. Given the time between the officer delegated approval and issue of the planning permission, it was possible that planning issues relevant to the Application might change. If they did change, the Council might need to review its delegated decision. So, the question for me, is whether the evidence shows such change took place before the Council issued planning permission for the Development.
58. The Council told Mr X his correspondence did not raise new issues not considered in the Report, which led officers to approve the Application. Having carefully considered that correspondence, I recognise Mr X provides more details about his concerns. And yet, I agree with the Council that the correspondence does not raise new issues relevant to the planning merits and determination of the Application. I recognise the Council reconsulted NE about the Application (and other applications) after publishing the published Draft Guidance (see paragraph 31). And NE raised no objection to the Application when it replied. So, I see no evidence to suggest relevant planning issues changed, after the delegated approval, to need a review of that approval. I therefore have no grounds to question the Council’s refusal to both review its delegated decision and or refer the Application to the planning committee before issuing planning permission.

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Final decision

59. I completed my investigation finding no fault in how the Council reached it decision to grant the Development planning permission.

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Investigator's decision on behalf of the Ombudsman