Summary: Mr X complained about the Council’s handling of an application and decision to grant planning permission for development near his and other residents’ homes. Mr X said the development increased noise and disturbance and adversely affected residents’ health and wellbeing. We found no fault in the Council’s planning decision making.

The complaint

1. The complaint concerned the Council’s decisions to grant planning permission for development proposed in three planning applications. In this statement, I refer to these applications collectively as, ‘the three applications’. And, where necessary, I also refer to them individually as ‘Application One’, ‘Application Two’ and ‘Application Three’. Mr X, for himself and others, complained about the Council’s handling of the three applications, which proposed development near their homes, because:

• A councillor reneged on their offer to meet with residents about the developments.
• It wrongly classified Application Three as minor development when it proposed major development.
• It failed to properly consult another public body about Application Three.
• Its officers misled councillors in

• how they summarised third party representations in their reports assessing the three applications; and
• wrongly describing the development proposals as ‘sustainable’ in their reports assessing the three applications.

• Its officers misled councillors in how they referred to another planning permission for development on the site in dealing with Application Two.

2. Mr X said dealing with the Council about the three applications had put him to much time and trouble. And what happened also had a negative effect on his and other residents’ mental health. Mr X also said the developments would increase noise and disturbance and badly affect residents’ health and wellbeing.
3. Mr X wanted an inquiry into the Council’s actions to expose what had happened and to prevent it happening again. Mr X also wanted to prevent the developments being implemented.

Back to top

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 consider whether there was fault in the way a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. We provide a free service but must use public money carefully. We do not start or continue an investigation if, for example, we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the council, 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))

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We may investigate complaints made on behalf of someone else if they have given their consent. Here, Mr X provided written consent forms from other residents in support of his complaint. (Local Government Act 1974, section 26A(1), as amended)
8. If we are satisfied with an organisation’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)

Back to top

What I have and have not investigated

9. Mr X had previously complained to us about the three applications. We decided not to investigate the earlier complaint finding insufficient injustice to Mr X and that we were unlikely to find evidence of fault.
10. Here, it might be that Mr X now sought to raise new concerns about how the Council processed the three applications. However, our earlier decision, that found fault unlikely, would not be affected by Mr X now raising any new points about the Council’s handling of the three applications. And we do not normally reinvestigate or further consider complaints about matters where we have already investigated and then issued our final decision statement. I saw no good reason or grounds on which generally to exercise my discretion to do so here. Accordingly, I have not investigated those parts of Mr X’s complaint summarised in the second, third and fifth bullet points to paragraph 1 of this statement. (See generally paragraph 5.)
11. However, Mr X said there was fault at the Council’s Development Management Committee (‘DMC’) when councillors considered Application Three. The relevant DMC meeting had not taken place when Mr X first complained to us. And, in post decision correspondence with Mr X, we recognised the Council had not formally decided Application Three when we issued our final decision on his earlier complaint. So, I exercised discretion to investigate what happened at the DMC meeting when councillors considered Application Three. In doing so, I considered the officer report assessing Application Three (‘the Report’), which was before councillors at the relevant DMC meeting. Accordingly, for Application Three, I considered those parts of Mr X’s complaint summarised in the fourth bullet point to paragraph 1. But I found no good reason to investigate that part of Mr X’s complaint summarised in the fourth bullet point in relation to Application One or Application Two.
12. The Council had also granted Application One planning permission about 17 months before Mr X brought this complaint to us. So, a complaint now about Application One would be a ‘late complaint’ too (see paragraph 6). Given the passage of time, I saw no good reason, even if we had not previously considered a complaint about it, to investigate now how the Council processed Application One.
13. Mr X also complained about a councillor’s conduct (see first bullet point to paragraph 1). Councils must adopt a ‘code of conduct’ setting out the standards of behaviour or conduct expected of people when acting as councillors. Councils must also have arrangements for investigating written allegations about a councillor not complying with that code of conduct. We would not normally consider a complaint about a councillor’s conduct before their council had completed its investigation into the allegation. And, we are not an appeal body for council decisions about a councillor’s conduct. Rather, we may consider if a council has investigated the allegation in line with its arrangements.
14. In bringing this complaint to us, Mr X had not made a ‘councillor conduct’ complaint to the Council, although it had signposted him to do so. And Mr X said the conduct he complained about took place around spring/summer 2023. So, any complaint now to us would likely be a ‘late complaint’ (see paragraph 6). I found no good reason to exercise discretion to consider the part of Mr X’s complaint summarised at the first bullet point to paragraph 1.
15. In summary, I did not investigate those parts of Mr X’s complaint concerning a councillor’s conduct; Application One; Application Two; and Application Three other than the DMC’s consideration of the Report on that application.

Back to top

How I considered this complaint

16. I have:

• Considered Mr Xs’ written complaint and supporting papers.
• Talked to Mr X about the complaint.
• Considered information on the Council’s website about Application Three.
• Listened to the Council’s recording of the DMC’s consideration of Application Three.
• Given Mr X and the Council an opportunity to comment on a draft of this statement and considered any comments received before making a final decision.

Back to top

What I found

Background

17. Most development needs planning permission from the local council. Councils must consider each planning application on its own merits. They must also decide applications in line with relevant policies in their development plans unless material planning considerations indicate they should not. Material considerations concern the use and development of land in the public interest but not private matters. Examples of material considerations are traffic generation and overlooking. The developer’s behaviour, the view from peoples’ homes and potential changes to house prices are not material planning considerations.
18. Councils must publicise planning applications, so people may comment on development proposals.
19. A planning case officer may visit the development site. The case officer may also write a report assessing the proposed development against relevant policies and other material planning considerations. Any such report usually ends with a recommendation to approve or refuse the application. The courts have made 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.

20. Planning policies may pull in different directions, for example, promoting new housing and protecting existing residents’ living conditions. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application. A senior council officer, acting for their council, will decide most of their council’s planning applications. But each council has rules about when planning committee councillors should decide an application. As decision maker, the senior officer or councillors at committee may, in weighting the material planning considerations, either agree or disagree with the case officer’s report recommendation.
21. Council’s may place conditions on a planning permission to control and regulate the approved development. Council’s may take planning enforcement action if people fail to comply with a planning condition.

Application Three: A summary of relevant events

22. After publicising Application Three and consulting with other public bodies, Council planning officers prepared the Report assessing the application. The Report identified relevant national and local planning policies and key issues to consider in deciding Application Three. The issues included consideration of ‘sustainable development’ as set out in the Government’s National Planning Policy Framework. The Report also summarised representations received in response to publicity and the Council consulting with other bodies on Application Three. The summary of representations included statements that ‘no objections are raised’ from some bodies consulted.
23. The Report set out the officers’ assessment of identified key planning issues, including sustainability and the development’s impact on people living near the site. The impacts on nearby residents included noise and the health impact of the development. The Report found the development was sustainable. The Report also recognised the development would both cause some planning harm and provide planning benefits. The Report found the planning harm could be mitigated through use of planning conditions. And, on balance, the Report concluded the development was acceptable. The Report recommended the grant of planning permission.
24. Councillors at the DMC considered the Report. Mr X attended the DMC meeting. And, after an officer presented the Report to the DMC, Mr X was among those that addressed councillors. Mr X spoke against Application Three. In speaking at the DMC, the points raised by Mr X included his disagreement with the Report finding the development ‘sustainable’. Mr X also questioned the Council’s consultation with public bodies, finding it inadequate to secure all necessary advice. And Mr X said the development had only one benefit but many adverse effects.
25. Councillors at the DMC both asked questions of officers and others addressing the meeting. Councillors also commented on Application Three. The issues addressed by councillors at the DMC included noise, sustainability, local impacts, and representations. On putting Application Three to a vote, most councillors present agreed to grant planning permission for the Application Three development. The Council then issued its formal decision notice granting conditional planning permission.
26. About 11 months later, Mr X complained to the Council raising the points set out at paragraph 1 of this statement. In response, the Council said the Ombudsman’s final decision statement on Mr X’s earlier complaint had dealt with the three applications. It would not therefore respond through its complaints procedure but ask its planning officers to reply to his points. The Council then wrote to Mr X, recognising there was a difference of opinion on the points raised, and briefly setting out why it disagreed with his views. The Council also signposted Mr X to its councillor code of conduct procedure should he wish to complain about its councillor.

Consideration

27. We are not an appeal body. And our role is neither to ask whether a council could have done things better and or differently nor to agree or disagree with its decision. Instead, we look at whether there was fault in how a council made its decision. If we find no fault, we cannot question a council’s resulting decision regardless of how strongly a complainant or complainants may disagree with it.
28. As a publicly funded body we must also be careful how we use our resources and so cannot always respond to complaints in the detail people might want. Rather, we conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision.
29. Here, I found the Report on Application Three reflected common practice in both its layout and contents. Briefly, the Report set out the development proposals and included a planning history for the application site. It summarised representations, which representations were available for councillors to read in full should they wish. The Report also identified main planning policies and key planning issues for deciding Application Three. The Report then set out the officers’ assessment of the issues, ending with a recommendation to grant planning permission.
30. In summarising representations, Mr X was concerned that references in the Report to ‘no objections are raised’, while technically correct, could be misleading. However, the Council cannot control how any person or body responds to consultation about a planning application. It is open to a consultee to say it ‘has no comments to make’ or similar. Here, I found that, where the Report said, ‘no objections are raised’, a summary of what the body consulted had said followed. I found no evidence of fault in how the Report summarised representations about Application Three.
31. Mr X was also concerned the Report had wrongly identified the Application Three development as ‘sustainable’. The Council identified sustainability as a key issue in deciding Application Three. The Report then set out the officers’ assessment of that issue for the development. There was no fault in the Council identifying and then assessing ‘sustainability’ in deciding Application Three. And, having done so, the Council was entitled to reach its own conclusion on the issue. Equally, Mr X may reach and hold a differing view. And that counter view was before the DMC because Mr X raised it when addressing councillors at the meeting. However, it was not for me to arbitrate on such differing views, which go to the merits of the proposed development.
32. I recognised the consent forms provided by Mr X pointed to a general concern about the development in the wider community. However, overall, I found no evidence of fault in the Report or at the DMC meeting. I therefore could not question the Council’s decision to grant Application Three planning permission.

Back to top

Final decision

33. I completed my investigation finding no fault in how the Council reached its planning decision.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman