Summary: Mr X complained there were faults in the Council’s consideration of a reserved matters planning application. He said the approved development will increase flood risk to his home, has reduced its value and the process caused him and his wife considerable stress. There was fault by the Council but it did not cause significant injustice to Mr X.

The complaint

1. I call the complainant Mr X. He complained there were faults in the Council’s consideration of a reserved matters planning application. He said the approved development will increase flood risk to his home, has reduced its value and the process has caused him and his wife considerable stress.

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The Ombudsman’s role and powers

2. 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)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I considered the complaint and documents provided by Mr X and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr X and the Council and considered their comments.

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What I found

Relevant information

6. Outline planning permission establishes the acceptability of development, subject to later agreement to details of ‘reserved matters’.
7. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.

What happened

8. In late 2017 the Council granted outline planning permission for dwellings on a plot of land near Mr X’s home. All matters were reserved for later approval apart from access. In January 2020 the Council approved the reserved matters. The applicant for the reserved matters was a company which is owned by the Council.
9. Mr X complained to the Council about its consideration of the reserved matters. The Council considered his complaint at stage one and stage two of the complaint process. He then complained further about how that complaint, and other complaints he had made about how enforcement issues, had been handled. The Council responded. It accepted some aspect of the wording of the complaint procedure was not clear and would be changed. But it said it would not correspond further about these matters.
10. Mr X complained about various elements of the Council’s consideration of the planning application as well as how the Council handled his complaints. I will refer to each of them below.

Flooding and drainage

The Council’s position

11. A flood risk assessment and drainage strategy was submitted at outline. That established the principles for the drainage for the site including the provision of a sustainable urban drainage (SuDs) basin and discharge to a nearby watercourse.
12. The Council commented that it did not require a further flood risk assessment with the reserved matters application because the strategy for draining the site had been agreed in principle on the outline application. The reserved matters application was to agree the layout, scale, appearance and landscaping of the development, not the fundamentals of how the development would drain. The drainage strategy for the site remained unchanged.
13. The Council is the Lead Local Flood Authority (LLFA) and as part of the consideration of the reserved matters requested further information. That included an overland flow assessment, micro drainage calculations, design and specification of the proposed drainage basin and drainage route. And a CCTV investigation report of the culvert to which surface water would discharge was also submitted. From this information the Council as LLFA was satisfied that the objections it had at outline stage were overcome. The SuDs basin on site had been designed to manage the run-off from the development which included the identified patch of surface water flooding in part of the site. The levels on site allowed for the scheme to drain towards the basin.

Analysis

14. Our role is to consider whether there has been any administrative fault in how the Council has assessed the reserved matters – we do not carry out our own technical assessment of the proposal. It was for the Council to use its professional expertise to decide whether the scheme was acceptable.
15. Mr X, and others, raised various concerns about the Council’s consideration of potential flooding and drainage issues when they complained to the Council after the Council had approved the application. The Council responded but it did not address in detail all the specific points that had been raised. However, I consider the information the Council has now provided, and which I refer to above, does address the concerns raised.
16. Objectors complained the CCTV survey of the culvert had to be abandoned so could not be relied on. The Council commented that the proposal restricts water to greenfield run-off at the natural existing rate and discharges via a basin into the watercourse mimicking natural flow rates. The development would not increase the rate of run-off downstream so there was no increase in flow or flood risk.
17. The Council also imposed a condition on the approval that required the development would not be occupied until works had been undertaken to ensure the culvert was free-flowing. The Council said this was because the applicant wanted to work with the owner of the culvert to ensure it was clear of obstruction.
18. The Council should be able to take action to ensure compliance with any planning condition. As the culvert is not owned by the applicant/developer then they are not able to ensure this is done. The Council said the applicant/developer would need to show they had sought to work with the owner of the culvert. If the owner was not amenable then the applicant would need to apply formally to remove the condition.
19. There is some inconsistency in the Council’s position on this point. On the one hand it is saying the development will not increase run-off to the culvert but then it imposed a condition relating to run-off to the culvert. A condition the applicant/developer cannot meet without third party agreement.
20. Although I am not entirely satisfied with the Council’s response on this point I am not going to take it further as it does not alter the decision on the application in any material way. The Council explained why it considered the drainage on the site to be acceptable and there is no basis on which I can question its assessment. The condition does not alter that assessment by the Council.

Public sector equality duty

21. The Council did not include any reference to how it considered its public sector equality duty in the report on the reserved matters. In responding to the complaint the Council said it was an error that the standard paragraph was not included in the report.
22. It said that consideration of planning applications always took equality into account. There were not always specific records or notes to reflect this where no specific issue was raised during the consideration of the application. In this case no issues were raised that would indicate the development would have a material impact on individuals or identifiable groups with protected characteristics as identified by the Equality Act.
23. Objections made to the scheme referred to the types of houses proposed on the development. The point made was that locally it was an aging population and that bungalows should be included. Also that the site was on a steep hill and there were no properties suitable for the aged and infirm.
24. Under section 149 of the Equality Act 2010, a public authority must in the exercise of its functions have due regard to the interests and needs of those sharing the protected characteristics under the Act, such as age, gender, disability and race.
25. The equality duty does not set out a particular process for assessing impact on equality that public authorities are expected to follow. Having due regard to the aims of the general equality duty is about informed decision-making, not about carrying out particular processes or producing particular documents.
26. Issues were raised here that should have prompted specific consideration by the Council under its equality duties. The consideration should be active and not an administrative formality. The Council’s response that it was an administrative error not to include the paragraph suggests it is included by rote and did not demonstrate that it was actively considered. This is fault.

Ecological impact assessment

The Council’s position

27. The Council commented there was a requirement for developers to supply information to ensure that ecological matters can be fully considered. But government guidance is also clear that information is only really needed when there was a reasonable likelihood of a protected species both being present on the site and affected by the development.
28. The Council did not require a further assessment at reserved matters because the information submitted concerning appearance, landscaping, layout and scale did not raise the potential for significant ecological impacts that had not already been addressed in the assessment work done in connection with the outline planning application. And that had been secured through planning conditions and an associated legal agreement.

Analysis

29. There is not fault by the Council on this point. It explained how it considered the ecological assessment and why it did not consider a further assessment was necessary.

Location of affordable housing on the site

30. The housing mix on the site included some affordable properties. Mr X complained they were not spread throughout the site as the Council’s policy said they should. In responding to his complaint the Council said the policy in the draft local plan could only be given some weight and it was not a requirement for the affordable housing to be spread across the site. And the layout was considered acceptable. This point was also raised at the planning committee and the same response given.
31. The committee had all the relevant information before them to make a properly informed decision. It was not an absolute requirement that the affordable units be spread across the site and they were able to consider whether, in this case, they considered the layout to be acceptable. There is no fault in their consideration of this point.

Purchase of the affordable housing units

32. Mr X said in his request for a stage 2 review that there was already an agreement that the Council will buy all the affordable properties to add to its rental housing stock. The Council did not respond to this point.
33. In responding to me the Council said that the purchase of the affordable housing units was not relevant to the determination of the reserved matters application. And the Officers involved in the consideration of the application were not aware of any agreement between the Council and the applicant.
34. Land and property ownership are not material planning considerations. There are no grounds to say that any plans for the properties on the site affected the consideration of the application.

Housing mix on the site

35. The properties on the site are family properties with no provision of bungalows which Mr X argues are needed by the older local residents. There was a housing needs survey in February 2019 which indicated that both family housing and older persons housing were required. The Council was considering another site for the provision of older person housing so, it considered, family housing on this site was reasonable.
36. Again all the relevant information was before the Members of the committee on this point and there was no fault in the consideration.

Dates on the Council’s website

37. The Council identified there was an anomaly on its website under ‘important dates’. It appeared that a period of consultation started on the same day as the decision was issued. That was not the case. It was due to user error in the generating of a letter to the parish council notifying them of the Council's decision on the application. The letter was generated under the consultations system by mistake. No additional consultations were carried out after the determination of the planning application.
38. This is a minor point and did not alter the consideration of the application.
39. Mr X believed that dates had been changed on the website but I have no evidence of this. And, in any event, it is unlikely to be significant in terms of the determination of the application.

Consultation

40. The Council provided photographic evidence of a site notice of the planning application in place. Mr X believed no notice had been erected but I am satisfied by the information supplied by the Council.

The Council’s constitution

41. During my consideration of the complaint Mr X raised a point about whether the application should have been considered by the strategic planning committee of the Council rather than at a local area committee.
42. The section of the constitution is not clear and a literal interpretation would be that this type of application (and others) would need to be considered by the strategic planning committee. The Council accepted it is unclear and will seek to ensure that it is appropriately amended. But I accept the Council’s position that its intention was always that such applications would be considered by local area committees. So while the unclear drafting is fault it has not affected the consideration of the application.

Summary

43. There were faults by the Council as I detail above. But they do not call into question the decision reached on the application. There is not, therefore, significant injustice to Mr X that warrants any action or remedy by the Council.

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Agreed action

44. The Council will correct the unclear wording in the constitution. It should do so within three months of the final decision.

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Final decision

45. There was fault by the Council but it did not cause significant injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman