Summary: We will not investigate Mr X’s complaint that the Council wrongly advised his buyers that he had not built a new house in accordance with the approved plans. This is because it would have been reasonable for Mr X to make an application to challenge the Council’s view and to appeal against any refusal.

The complaint

1. The complainant, Mr X, complains the Council wrongly told his buyers that he had failed to comply with the approved plans for construction of a new dwelling. He says that as a result the sale fell through and he has had to accept an offer £10,000 lower than originally agreed.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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))
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector 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

5. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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Background

6. Mr X believes he has completed the development in accordance with the approved plans. The Council does not agree. It set out its position to Mr X in 2020 and told him he would need to apply for planning permission to retain the development as-built. Mr X did not do this and instead put the dwellings up for sale. The issue in this case arose in 2021 when Mr X’s buyers queried his compliance with the plans and the Council advised that Mr X had not completed the development as approved; it did not therefore consider all conditions had been complied with. It did however advise that what had been built appeared acceptable and it was therefore unlikely it would take formal enforcement action.

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My assessment

7. Mr X is a property developer and has known since 2020 that the Council considers there has been a material change from the approved plans. The Council advised Mr X to submit a new planning application but he did not do so. I can understand Mr X’s reasons for this but if he felt the Council was wrong, and to avoid any issues in selling the properties down the line, it would have been reasonable for him to apply to discharge the condition or for a certificate of lawfulness for what he had built. This would then have provided him with a right of appeal if the Council refused to accept that he had completed the development as approved. By not using the options available to him Mr X left the issue unresolved and the Council was bound to advise his buyer of its concerns. It was then for the buyer to decide how to proceed and it was their choice to pull out of the sale. Mr X confirms he has managed to find a new buyer and while he has accepted a lower offer from them this is not the result of any fault by the Council.

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Final decision

8. We will not investigate this complaint. This is because Mr X has known about the Council’s view since 2020 and if he disagreed with it, it would have been reasonable for him to challenge it through a formal application and appeal.

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Investigator's decision on behalf of the Ombudsman