Summary: The Council was at fault, because its supplementary planning document on affordable housing does not make clear under which circumstances it is intended to apply. This did not cause an injustice to the complainant, but the Council has agreed to add a note to its website to clarify its policy. There is no evidence of fault in any other aspect of the complaint.

The complaint

1. I will refer to the complainant as Mrs W.
2. Mrs W complains the Council has approved a planning application for a large-scale new development near her home. She alleges various faults in the way the Council considered and decided the application, including that it has not applied its own policy on affordable housing.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

4. I reviewed the relevant planning documents and the recording of the Council’s Planning Committee meeting, Mrs W’s correspondence with the Council, and comments the Council sent me in response to my enquiries.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Since the events of this complaint, Scarborough Borough Council has been amalgamated with several others to form North Yorkshire Council, which is a unitary authority (meaning it is responsible for all council services in its area).
7. Mrs W lives on a small estate in a semi-rural area. There is open space adjacent to the estate.
8. In 2017 the Council published its Local Plan, which earmarked this site for potential development, with an ‘indicative yield’ of 90 new homes. The Plan also set out that any new residential development in the area would need to include a minimum of 15% affordable housing.
9. In March 2021 a developer submitted an application to build a new residential development on the site. It proposed to build 126 homes, made up entirely of affordable housing.
10. The application was referred to the Council’s Planning Committee. In March 2022, the planning case officer submitted a report to the Committee, recommending the application be approved with conditions. The Committee debated the application at a meeting in April 2022, and then after further consideration, approved it in February 2023.
11. Before the Council’s decision to approve the application, Mrs W made a complaint at both stages of the Council’s procedure. Her complaint included the following points:

• the Council had allowed an increase in the number of houses and proportion of affordable housing with minimal consultation, and against its own and government guidance;
• the Council had invited public questions to be included on the Committee meeting agenda, but then had rejected these questions when they were submitted;
• the Council had denied a resident a place to speak at the meeting, after originally saying they could speak;
• the Council had ignored residents’ written objections to the application;
• a Committee member had said they had voted in favour of the application because of the proposed quantity of affordable housing, which was not a material planning consideration;
• the Council had redacted a consultation response from the local children’s services authority, meaning it was unclear whether the authority had agreed or disagreed with the proposal;
• the Council had failed to address a public question, which raised the fact research had shown large clusters of affordable housing can create social exclusion for its residents;
• several members of the Committee had not read the public objections to the application;
• the houses on the development did not meet national recommended specifications;
• the consultation response from the lead local flood authority (LLFA) did not consider the cumulative effects of the three new local developments;
• the Council had not considered the cumulative effects on traffic of the three new local developments.

12. In response, the Council said:

• the Local Plan is not prescriptive and does not stop developers proposing more houses than set out for a particular site, and the Council had met legal requirements for consultation on the plan. The developer may have changed its proposal after an initial consultation with local residents, but this was not unusual;
• the purpose of the public question element of Committee meetings is to raise “broader issues” and not provide an opportunity for interested parties to support or object to a particular development proposal. The Council had rejected questions which did not comply with this rule;
• it had, in error, assigned a speaking slot reserved for the Parish Council to a local resident, but it had quickly corrected this;
• objections to the application had been properly summarised and presented to the Committee by the case officer. It was for Committee members to decide what weight to put on these objections;
• it could not comment on a comment by an unidentified Committee member, but it was for members to give weight to the relevant issues as they saw fit;
• it had redacted elements from the consultation responses to remove officers’ contact details and other irrelevant detail, but the substantive content remained;
• it could require developers only to meet the minimum requirement for affordable housing set out in the Local Plan. Any proposal beyond this requirement was for the developer alone to consider and was not a planning matter;
• its report for Committee members summarised all objections, and the objections were available in full on the Council’s website;
• the proposed houses meet the national standards for space, which in any case are not mandatory;
• it was satisfied the local flood and highways authorities’ consultation responses addressed the relevant issues, but if Mrs W wished to pursue this further she would need to approach North Yorkshire County Council, which was responsible for both matters.

13. Following this exchange, Mrs W referred her complaint to the Ombudsman in September. As the planning application remained outstanding, we declined to investigate the matter at that point, in line with our normal procedure. Mrs W then referred the complaint to the Ombudsman again in March 2023, after the application’s approval.

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Legislative background

14. Planning permission is required for the development of land (including its material change of use).
15. Planning permission may be granted subject to conditions relating to the development and use of land.

Decision making and material considerations

16. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
17. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
18. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
19. General planning policies may pull in different directions (for example, in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Case officer reports

20. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
21. However, the courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

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Analysis

22. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
23. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
24. In a case such as this, therefore, it is not for us to pass judgement on the merits of the planning application itself, but just to ensure the council has considered the matter properly.
25. With the exception of one point Mrs W has raised – relating to the proportion of affordable housing on the development – I do not consider there is any evidence of fault here. I will return to the affordable housing issue presently, but first will briefly give my own comments on the other points in Mrs W’s complaint:

• the Council is correct to say the Local Plan is only a guide, and that it does not mean developers cannot propose more houses than suggested for a particular site. I have seen no evidence the Council did not follow the proper consultation process for the application;
• it is for the Council to decide the purpose of the public questions element of the Committee meeting. Objectors have the opportunity to submit their views during the consultation process;
• I do not consider the Council’s error, in wrongly giving a Parish Council slot to a resident initially, to be significant;
• where there is a large number of objections to an application it is normal for councils to summarise them. It would not be practical to expect the Council to address individually each of nearly 200 objections, as there were here, in the report or Committee meeting. I have seen no evidence any key issues raised by objectors were omitted, except for the affordable housing issue which I will address separately;
• the Council is not responsible for the views or comments of councillors, who are elected members rather than council employees. There is a separate process for complaints against councillors;
• the Council has properly directed Mrs W to its freedom of information process if she wishes to see an unredacted copy of the children’s services consultation response. Any complaint she then has about this process is a matter for the Information Commissioner’s Office (ICO), rather than the Ombudsman;
• any problems with the standards of the houses proposed by the developer do not represent an injustice to Mrs W and so I will not consider this point further;
• it was for the Council to consider the flood and highways authorities’ responses. It properly directed Mrs W to the county council if she wished to complain about these (although the county council no longer exists, and its functions are now the responsibility of North Yorkshire Council).

26. Turning to the point about affordable housing, the Council has also explained the 15% requirement in the Local Plan simply represents a legal minimum the developer must meet. Any decision to hand over additional properties to an affordable housing provider, up to and including 100%, is entirely for the developer to make and is not a planning matter, and therefore not something the Council could refuse an application on.
27. However, the Council has a supplementary planning document (SPD) specifically on the subject of affordable housing. At paragraph 4.61, the SPD says:

“In order to ensure sustainable communities, affordable housing should be distributed throughout a development in small groups or clusters, typically of 4 to 8 units. In larger schemes where more than 100 dwellings are proposed slightly larger clusters, of up to 12 units, may be appropriate, dependent on design and location factors and an appropriate housing mix within the clusters. The Council will not support the principle of grouping affordable units in significant numbers together as this can reinforce feelings of social exclusion and can have a negative impact on the establishment of sustainable communities.”

28. As I have noted, planning policies normally act only as guidelines, and not absolute rules, and so it is not fault simply for a council to make a decision which appears to go against a stated policy. But, if so, it should clearly record and articulate its reasons for doing so.
29. In this case, while the ‘100% affordable housing’ question is discussed in the case officer’s report, and was debated at some length during the committee meeting, the fact the Council has a policy which appears to guide against such a proposal was not mentioned at any point. I therefore asked the Council for its comments on this. In response, it said the policy did not apply in this case, and explained:

“The Council does have an affordable housing supplementary planning document which does advocate the ‘pepper potting’ of affordable housing in mixed tenure schemes. This is very deliberately aimed at schemes in which affordable housing forms a (generally small scale) element of the housing mix – in terms of policy, the requirement in different parts of the area’s geography ranges from 10-30%. However, as articulated in the report and previous responses to this complaint, in this instance the applicant/developer was overtly looking to deliver above the policy requirement, of their own volition. Again, as noted, there was no policy basis or requirement in the decision itself for delivery above the policy target. In this regard the aspect of dispersal and/or concentration of affordable housing was not material.”

30. It is difficult to understand why the Council’s concerns about social exclusion would apply in a mixed estate, with an isolated cluster of affordable housing, but not to an estate made up entirely of affordable housing, directly adjacent and connected to an existing ‘non-affordable’ estate. It appears the same dynamics would apply in either case.
31. But it is, ultimately, for the Council to decide its own policy, and if this was its intent then it is not for me to question that; although I would still expect the policy to be mentioned in the report and/or meeting, even if just to explain why it was not relevant.
32. Either way though, if this is the purpose of the SPD then I consider it is misleading in its current format. I find fault for this reason.
33. I am not persuaded this fault represents a significant injustice to Mrs W. While she may also have found the wording of the SPD to be misleading about the Council’s intent, the only consequence of this for her was that she unnecessarily included it as an additional point in her complaint.
34. However, to avoid future confusion, I consider the Council should amend the SPD to ensure its intent is clear.
35. I made a recommendation to this effect in my draft decision on a linked complaint (although I did not do so in this complaint to avoid duplication). In response, the Council explained that changing the SPD itself involved a complicated process, including a statutory consultation period. The Council explained it was also planning to embark on a new policy development exercise in the future anyway. It therefore suggested it would be more proportionate to simply add a note to its website at the relevant point, to explain the policy more clearly.
36. I accept the Council’s point about proportionality and agree its suggestion is a reasonable compromise. I have therefore amended the wording of my recommendation in the linked complaint.

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Final decision

37. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman