Summary: Mr Y complains that inaccurate pre-application planning advice provided by the Council in 2018 contributed to substantial losses when he pursued a planning application which the Council later refused. We have discontinued our investigation into Mr Y’s complaint for the reasons explained in this statement.

The complaint

1. Mr Y submitted planning applications to the Council in 2018 and 2020 to build a house on land within the curtilage of a listed building. Mr Y obtained pre-application advice before putting in his first application.
2. Mr Y complains the inaccurate pre-application advice provided by the Council in 2018 contributed to substantial losses when he pursued a planning application which the Council later refused.

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The Ombudsman’s role and powers

3. 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)

4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended) The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:
• delay 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.

5. 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

6. I discussed the complaint with Mr Y and made enquiries of the Council to get the relevant planning documents, including the planning appeal decision.
7. I put my provisional findings in a draft decision statement and invited comments from the Council and Mr Y, which I considered before making a final decision.

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What I found

Pre-application planning advice

8. It is accepted good practice for councils to offer and encourage pre-application discussions about proposed planning applications. Government practice guidance ‘Before submitting an application’ supports pre-application advice “to improve the efficient and effectiveness of the planning application system” but also makes clear that, “pre-application advice provided by the local authority cannot pre-empt the democratic decision making process or a particular outcome, in the event that a formal planning application is made.”
9. This is because pre-application advice does not bind the Council; any planning application submitted must be considered on its own merits, taking account of representations from statutory consultees and people responding to the publicised application.

What happened

10. Mr Y used the Council’s pre-application advice service in November 2017 regarding his proposal to build a detached house within the curtilage of a listed building. The Council provided a written response to Mr Y’s advice request in January 2018. I will not repeat the advice in full here, but in summary the Council said:
• The site seems capable of sub-division and there is room for a new house. However, the new house must be sensitive to the existing listed building. The principle is acceptable subject to the Conservation Officer’s (CO) view and addressing other design considerations.
• The design of the new house needs to be appropriate, and this will be informed by the CO’s response, which at the time of the meeting was not available.
• The location of the proposed partial wall demolition is the most appropriate location and “the principle is considered acceptable but details on the demolition and protection of the wall would need to be provided”
• The principle of building a single house is considered acceptable as long as the design and scale of the house is appropriate.
• The CO suggested the proposal to be scaled back and reduced in size to create “a more subservient and visually appropriate house”.
11. The Council also included the following statement:

“The advice set out below and given during the meeting is based on the information submitted, but without the benefit of publicity, and so is made without prejudice to the consideration of any application. Although the advice might indicate the likely outcome of a formal planning application, it is only informal advice and no guarantees can or will be given about the decision that will be made on any such application”

12. Mr Y put in a planning application in September 2018. The Council sought comments from statutory consultees and neighbouring residents before deciding the application in March 2019. The CO said: “At present, we have a very conflicting and contrasting design which as its only outcome in terms of visual impact takes from and detracts from the setting of the listed building. This scenario would not meet the test of 'preserve' or 'enhance' required as a test for acceptable development within such contexts…. I believe a more considered and better articulated design scheme is essential if development of the nature required is to be supported here, on heritage grounds”.
13. The planning case officer refused the application and concluded, “The proposed development would cause harm to the setting of a Listed Building and erode a section of curtilage listed wall (further detailed within the concurrent LBC [Listed Building Consent] application), would harm visual amenity and character of the area, generate material harm to neighbouring amenity and would fail to meet the mitigation requirements of the [location removed] Special Protection Area”
14. The application for LBC explained the reasons for refusal: “Sub-division of the historic plot and the erection of large property together with additional vehicular access through a historic wall would cause less than substantial harm to the setting of [property name removed]. This is by virtue of the scale and cumulative impact upon the character and setting and would be without clear and convincing justification. Great weight (as required by Paragraph 193 of the NPPF [National Planning Policy Framework] 2019) and considerable importance is afforded to the preservation and conservation of the setting of Listed Buildings”
15. Mr Y appealed to the Planning Inspectorate (PI) in June 2019. The appeal was refused. Among other points, the PI noted the following key reasons in their decision dated 27 November 2019:

“The proposal would harm the setting of the listed house and would harm the fabric of the wall through removal of a section, and that each of these shortcomings would be visually prominent, causing harm to the character and appearance of the street scene”

“The proposal is contrary to local and national policies, as well as statute on designated heritage assets, as it would cause harm to the setting of the listed building as well as the fabric and significance of the curtilage listed wall, and there are insufficient public benefits to outweigh that harm. That effect would also be detrimental to the character and appearance of the area.”

16. Mr Y put in a second application to the Council in March 2020 for a new scheme proposing a smaller house. However, the new plans still included a break in the wall. The Council refused the application in October 2020 and Mr Y appealed. The PI refused the appeal.
17. Mr Y complained to the Council. Officers met with Mr Y virtually to discuss his concerns. During that meeting, Mr Y says the Council apologised and said the proposed break in the curtilage wall would not be permitted in any circumstances, and that he should not have been advised otherwise. The Council accepts the wording in its pre-application advice should have been clearer.
18. The Council says it has improved its practices since 2018, and it now ensures greater manager oversight with pre-application advice. The Council says it also makes sure that incorrect advice is corrected as soon the Council becomes aware of any errors.
19. Mr Y remains dissatisfied and complained to the LGSCO for an impartial review of his case. Mr Y is seeking a refund of the fees paid on the basis the Council provided wrong advice about the wall. If Mr Y had been aware of the Council’s position in 2018, he says he would not have submitted the two planning applications and would not have incurred the associated costs.

My analysis

20. The Local Government Act is clear that a person affected should complain to the LGSCO within 12 months of being aware of the matters complained about. The law allows us to exercise discretion in certain circumstances. For example, if it is clear the person affected only recently became aware of something which happened more than a year ago. In such cases, we could not expect the person to have complained sooner.
21. When I discussed the complaint with Mr Y, he explained that he first had cause to complain from October 2020 because this is the first time the Council told Mr Y it would not grant permission for any plans which proposed a break in the listed curtilage wall. Mr Y has explained the break in the wall is necessary to provide access to the new house; if the wall cannot be broken it therefore follows that a house cannot be built. If the Council had made this clear to Mr Y in 2018, Mr Y says he would not have gone to the time and expense in pursuing his plans.
22. Since discussing the complaint with Mr Y, I have had the opportunity to read the planning documents in full, including the PI’s decision. The LBC refusal was clear that the proposed alteration of the wall would cause harm contrary to the requirements of the NPPF. The first PI decision, dated 27 November 2019, also reiterates the impact of the wall break and it is cited as a reason for refusal. In my view, Mr Y had cause to complain about the accuracy of the pre-application advice as soon as he received the LBC and PI refusals. We would therefore expect Mr Y to have approached the LGSCO within 12 months and by November 2020. Mr Y’s eventual complaint to the LGSCO arrived in August 2021.
23. I have considered whether the LGSCO should exercise discretion because Mr Y has experienced an ongoing injustice. Although Mr Y put in a second planning application in early 2020, it is my view that this is separate to the core of Mr Y’s complaint. In my view, the starting point for Mr Y’s complaint was the PI appeal decision in November 2019. I consider Mr Y could and should have complained about errors in the pre-application advice in isolation and concurrently to the Council’s consideration of the second application.
24. I have also considered whether Mr Y was prevented from complaining sooner due to delay by the Council. Mr Y points out the Council delayed in determining his applications. We have not considered this because Mr Y had a right of appeal against any delay. However, we would not expect Mr Y to have complained to us before he received the result of his application and subsequent appeal. This is because he did not have cause to complain until he knew the proposed break in the wall was contrary to the NPPF and unacceptable. Therefore, any delay in determining that application had no bearing on Mr Y’s ability to complain to us within 12 months of having cause to complain.
25. For the reasons explained above, I have discontinued our investigation into Mr Y’s complaint because there is no good reason for the LGSCO to investigate matters which he has been aware of for more than a year.

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Final decision

26. We have discontinued our investigation for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman