Summary: We will not investigate Ms X’s complaint about how the Council decided her first planning application. Ms X was aware of her Planning Inspectorate appeal and could have used it to obtain the permission she sought. We cannot investigate Ms X’s complaint about the Council’s planning process when deciding her second application for the same property. Ms X has used her Planning Inspectorate appeal right, which takes the matter outside our jurisdiction.

The complaint

1. Ms X sought planning permission twice in 2020, to extend her property. She complained the Council:
1. failed to visit the planning site for both applications;
2. charged her the full fee when only delivering part of the planning service to her.
2. Ms X believes that if the planning officer had visited they would not have refused her planning applications. She considers she paid for a full planning service but only received a partial one. Ms X says not receiving the permission has caused inconvenience and disruption to her family life.
3. Ms X wants the Council to offer her free advice on what they will accept regarding her house extension, a discounted third planning application, and for that application to be dealt with by a different planning officer.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector (PINS) acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
6. The PINS considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission;
• a planning enforcement notice.

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How I considered this complaint

7. As part of my assessment I have:
• considered the complaint and the documents provided by Ms X;
• viewed relevant online planning documents and maps;
• issued a draft decision, inviting Ms X to reply.

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What I found

8. Ms X made her first planning application to extend her house in mid-2020. The Council refused permission, advising Ms X and her agent of her right to appeal the decision to the PINS. Ms X did not appeal. Ms X and her agent amended the application and resubmitted it to the Council in the summer of 2020, which refused that second application. Ms X appealed to the PINS against the second refusal decision in late 2020.
9. Where someone had a formal appeal against a council’s planning decision to the PINS, we would only investigate a complaint if it would be unreasonable for us to expect them to have used that appeal right. It would not have been unreasonable for Ms X to have appealed to the PINS against the Council’s decision on her first application. The Council’s decision notice included details of how she could appeal, and Ms X was represented by a professional agent.
10. There is not enough evidence that Ms X could not have appealed to the PINS against the Council’s first planning decision. There are no grounds for us to investigate this decision because Ms X had a right of appeal it would have been reasonable for her to have used to pursue the permission she wanted.
11. When the Council refused her second application, this gave Ms X a further right of appeal to the PINS against that decision. Ms X used that PINS appeal in late 2020.
12. Where someone has used their formal PINS appeal right, we have no jurisdiction to investigate any aspect of the planning process. This includes any actions or inactions of the local planning authority which made the appealed decision.
13. This is in line with caselaw. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. The relevant case is R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916. The principle set down in this judgement applies to situations where a complainant has used a formal right of appeal other than through court proceedings, including a PINS appeal. This limitation on our jurisdiction applies even if the appeal did not or could not provide a complete remedy for all the injustice claimed.
14. We cannot investigate any aspect of Ms X’s second planning application because she has used her PINS appeal right. The appeal takes the entire second planning matter, including the Council’s administration, outside our jurisdiction.
15. I realise Ms X says her complaint is about the planning service the Council provided. Her key contention is she paid for that service to include a site visit, and believes if the planning officer had visited, this would have resulted in different decisions. But the matters at the core of the complaint are those Council planning decisions. Ms X’s status as a planning applicant, and the rights of appeal that position gave her, affect what we can investigate, as explained above.
16. In any event, even if we decided we have jurisdiction to investigate Ms X’s complaint about the Council’s planning service, I do not consider we would have found fault by the Council. I say this because planning applicants pay their fee to get a decision on their application. They are not paying the local planning authority or its staff to take any particular action during that assessment process. There is no duty on a planning officer to visit an application site. The officer is required to gather sufficient evidence for them to form their professional judgement and make their decision. If the officer considers they can do that without a site visit, they may decide not to visit. If a planning applicant then believes the officer’s decision is flawed because of the way they determined the application, the way to challenge that decision is provided by the formal PINS appeal.

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Final decision

17. My decision is:
• we will not investigate Ms X’s complaint about the Council’s handling of her first 2020 planning application because she had a formal right of appeal to the PINS which it was reasonable for her to have used;
• we cannot investigate Ms X’s complaint about the Council’s handling of her second 2020 planning application because she has appealed the decision to the PINS, which takes the matter out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman