Complaint 4

Council’s Response

Local Government Ombudsman’s Response

1 June 2004


1. On 17th October 2003, Mr Webb submitted a planning application for the erection of one house and integral garage on land adjacent to his home at The Barns, Walk Lane, Irby upon Humber, Planning Application (DC1316/03/WOL).

1.1 Since neighbours at Hilltop House had raised material planning objections, the planning application was referred to the Planning Committee for determination on 16th January 2004.

1.2 Having received a copy of the Case Officer's report to the Planning Committee with regards to Planning Application (DC/1316/03/WOL) from the Law and Democratic Services department, Mr Webb noted comments made by the Case Officer "H" ( Appendix 1). Her comments stated, "Members may be aware that the applicant has lodged an appeal against the Council's failure to discharge another S.106 Agreement attached to the permission for his own dwelling at The Barns. A hearing is to take place on 21st January 2003."

1.3 During the Planning Committee meeting on 16th January 2004, "E" of the Law and Democratic Services department stated to the meeting that Mr Webb was at an Appeal the following week and could not understand the reasons why.

1.4 A letter of complaint was sent to then Chief Executive of the Council, James Leivers. In his complaint, Mr Webb complained of several aspects of "H"'s Case Report to the Planning Committee (Appendix 2).

1.5 On 7th February 2004, Mr Webb sent a letter to "H" asking her for a copy of her full report and background papers as to how she arrived at her comments in her Case Report and requested those documents under the provisions of The Local Government Act 1972, as amended by The Local Government (Access to Information) Act 1985.

1.6 On 12th February 2004, Mr Webb also sent a letter to "E" asking him to supply a copy of all his background papers as to how he arrived at his comments within the Planning Committee meeting on 16th January 2004 and requested such documents.

1.7 When considering a planning application, the Council has a duty to consider all material planning considerations relevant only to that planning application. Any matter, which is raised and is not relevant material planning considerations, must be disregarded in its entirety. The Governments 'Planning Policy Guidance 1' (PPG1) document states;

"In principle, any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances" (Stringer v MHLG 1971). Material considerations must be genuine planning considerations, i.e. they must be related to the purpose of planning legislation, which is to regulate the development and use of land in the public interest. The considerations must also fairly and reasonably relate to the application concerned (R v Westminster CC ex parte Monahan 1989). Much will depend on the nature of the application under consideration, the relevant policies in the development plan and the surrounding circumstances."

1.8 The Council further embraces advice given in PPG1, in Section 13.3 of their own 'Probity in Planning' document by stating, "Members and Officers should only address their minds to planning considerations and shall disregard non-planning considerations when considering applications and other planning matters."

1.9 The Section 106 Agreement "H" purports to in her Case Report has no relevance whatsoever to Planning Application (DC/1316/03/WOL) and is not therefore, a material planning consideration. This agreement was made in connection with the planning permission approval for Mr Webb's home and none other. The land subject to the Planning Application at question is binded by another separate Section 106 Agreement, which is a relevant material planning consideration in Planning Application (DC/1316/03/WOL).

1.10 The Council's 'Probity in Planning' document also asserts that clear recording is essential to the proper administration of planning. Anyone reading the file should be able to understand the reason for the ultimate decision without a detailed knowledge of the background. Reports prepared for the Committee form the basis on which Members' decisions are made. They may be subject to close scrutiny by The Planning Inspectorate, the Local Ombudsman or the High Court and will need to be explained and justified by the preparing Officer. The report should be clear and accurate and include an exposition of the Development Plan, Site and Relevant History, the substance of objections and the views of consultees and all material considerations. The report should contain a technical appraisal, which justifies the recommendation. The decision maker should be able to reach a proper conclusion from the report.

1.11 Under the Council's Constitution, Part 4(8) states that the proper Officer will set out in every report a list of background papers relating to the subject matter which is in his or her opinion disclose any facts or matters on which the report is based and which have been relied upon to a material extent in preparing that report. North East Lincolnshire Council will make available for inspection for four years after the date of the meeting, one copy of each of the background papers listed in that report.

1.12 The Section 106 Agreement to which "H" refers to was a subject of an Appeal hearing by the Secretary of State later that month. She was not personally involved in this Appeal. Mr Webb cannot understand why "H" had stated this particular Section 106 Agreement in her Case Report, other than to cloud the perception of and pervert the outcome of the planning application.

1.13 Despite his requests of the background papers to support her statement, "H" has refused to supply them to Mr Webb. This contrary to the Council's 'Probity in Planning' document, Articles 3 & 13 and Part 4 (8) of the Council's Constitution. It is also evident that there is no list of background papers, to which she must have relied upon, within her Case Report to the Planning Committee, which has led to the ineffective documenting of the planning application.

1.14 During the Planning Committee meeting on 16th January 2004, "E" was present. It was after Mr Webb had spoken in his allocated time of 5 minutes to the Planning Committee, "E" addressed the meeting on several matters. Again the issue of the Section 106 Agreement pertaining to Mr Webb's own home arose. "E" stated to the meeting that, "Mr Webb was at an appeal hearing the following week and I do not understand the reasons why Mr Webb is at appeal." Again, Mr Webb believes "E"'s comments were made to pervert the outcome of the planning application.

1.15 It was also during this meeting, that "E" also stated that he and Councillor "V" (Chairman of the Planning Committee) had offered to meet with Mr Webb to discuss the matters of the Section 106 Agreement pertaining to Planning Application (DC/1316/03/WOL) ( Appendix 5). This is total and utter nonsense. Mr Webb had never been offered any meeting with "E" or Councillor "V".

1.16 Again, despite his requests of the background papers to support his comments, "E" has refused to supply them to Mr Webb or acknowledge his letter. This contrary to the Council's 'Probity in Planning' document, Articles 3 &13 and Part 4 (8) of the Council's Constitution.

1.17 It is Mr Webb's belief that the issue of the Section 106 Agreement Appeal hearing later that month was exempt information, until the Secretary of State's decision was known after that Appeal hearing. The Council and the public were afforded the opportunity of discussing and raising material matters as to the nature of the Appeal months earlier in the Appeal process. To raise and discuss the issue of the Appeal at this Planning Committee meeting at a time not far from the Appeal hearing was inappropriate, unethical and prejudicial to Mr Webb's rights to a fair hearing.

1.18 "G" and "H" are responsible for the preparation of written reports and for advising Members at Committee meetings will be qualified to an appropriate level in Town Planning. Whether or not they are Members of the Royal Town Planning Institute (R.T.P.I) they will be required to undertake continued professional development to a level required by the R.T.P.I. Both "G"'s and "H"'s perverse dealings in these matters, have also brought the Council into disrepute with The Royal Town Planning Institute Code of Professional Conduct as described in the Council's document 'Probity in Planning'. Within this document, The Chartered Object of the Royal Town Planning Institute purpose is to advance the science and art of town planning for the benefit of the public. It is the purpose of this Code, that is embraced by the Council, set out in the document, to ensure that in all their professional activities members of the Royal Town Planning Institute:

1.19 As per North East Lincolnshire Council's Constitution, "H", "G" and "E" have brought the Council into disrepute in this matter. As a result, they have not afforded Mr Webb the fairness and consistency in the treatment as an individual and were unjustified in their handling of and their colluded perverse reporting to the Planning Committee and acted in a manner which was contrary to the Council's legitimate interest, as per the Council's Constitution. They have not assisted in the effective operation of the Council and inappropriately used Council resources in what can only be described as a personal vendetta against Mr Webb. They were also negligent in carrying out duties in accordance with other relevant procedures and policies and displayed personal conducts of unacceptable standards.

Addendum

After Section 1.8 please insert Section 1.81:

1.81 Below is an extract from the Council’s document "Having Your Say at Planning Committee" (Appendix 6). This particular part of the document outlines the methodology in determination of a planning application brought before the planning Committee:

It is quite evident that throughout the meeting, "P" was the representative of the Director of Environmental Services. In no way does this document connote that any other Officer of the Council can use such a meeting as an opportunity to voice any matter, whether a material planning consideration or not. The sequence of events at the meeting also suggests that issues raised by third parties are only questionable by the representative of the Director of Environmental Services in the terms of the third party presentation only. Therefore, "E" was not afforded the right of addressing the public meeting with irrelevant remarks that were not material planning considerations. It is Mr Webb's contention that "P" abused his power, as the representative of the Director of Environmental Services by allowing "E" to speak, contrary to this Council documents policy and procedures in this matter, as outlined above. If the Director of Environmental Services was minded to raise such issues then it was the representative who should voiced such issues and not another Officer of the Council. For the Director of Environmental Services to allow another Officer to raise issues that were not in response to the applicants or objectors comments is maladministration, that ultimately prejudiced Mr Webb's rights to a fair hearing.

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Investigating Officer's Findings and Conclusion

Complaint section Findings Action/Outcome
Sections 1.9 and 1.19
"H"'s misrepresented and misleading report to the Planning Committee contrary to the Council's Probity in Planning document, the Government's Planning Policy Guidance 1 document and Part 5 of the Council’s Constitution.		 “Clearly, the application was a distinct and separate matter from those other issues which either ongoing or had previously occurred on or around this site, to some degree, in that it could be separately identified as a distinct proposal unrelated directly to those which were ongoing or had gone before. "H" would have had access to that history file and if doing her job correctly would have, in my opinion, familiarized herself with the history files for the site.” No action.
Section 1.15
"H"'s disregard for information requests contrary to the Council's Development Control Charter, the Council’s Probity in Planning document and Part 5 of the Council’s Constitution.		 Not investigated.
Section 1.17
"E"'s factual inaccuracies to a public meeting and the Planning Committee, contrary to Part 5 of the Council’s Constitution.		 “I cannot, however, see any such relevance in the comments by "E" if this is correctly reported. It is my understanding that the role of the Legal Officer is to advise Members on points of law and procedure and to provide relevant legal advice and interpretation on such matters, but not to provide opinion on the planning merits of any proposal which should be rightly be the province of the Planning Officer.” No action.
Section 1.18
"E"'s disregard for information requests contrary to the Council's Development Control Charter, the Council's Probity in Planning document and Part 5 of the Council’s Constitution.		 Not investigated.
Investigating Officer's Conclusion “I consider Mr Webb is correct in his complaint that some of the information given at Committee was not entirely correct and comments made were possibly inappropriate.” “It is, however, important the Council check its constitution to ensure it allows for the proper functioning of the Planning Committee.”

No response.

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Local Government Ombudsman's Findings and Conclusion

Complaint section Findings Action/Outcome
Sections 1.9 and 1.19
"H"'s misrepresented and misleading report to the Planning Committee contrary to the Council's Probity in Planning document, the Government's Planning Policy Guidance 1 document and Part 5 of the Council’s Constitution.		 Refused to investigate.
Section 1.15
"H"'s disregard for information requests contrary to the Council's Development Control Charter, the Council’s Probity in Planning document and Part 5 of the Council’s Constitution.		 Refused to investigate.
Section 1.17
"E"'s factual inaccuracies to a public meeting and the Planning Committee, contrary to Part 5 of the Council’s Constitution.		 Refused to investigate.
Section 1.18
"E"'s disregard for information requests contrary to the Council's Development Control Charter, the Council's Probity in Planning document and Part 5 of the Council’s Constitution.		 Refused to investigate.
Local Government Ombudsman's Conclusion “Again, there was a right of appeal against the decision of the Planning Committee to refuse your application. Any argument about the way the Council considered the application could have been made to the Planning Inspector. For this reason, I do not consider that it would be appropriate for the Local Government Ombudsman to exercise her discretion to investigate this complaint.” No action.

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