Summary: Mrs X complained the Council gave her incorrect planning advice. We found fault because the Council said she needed planning permission when she did not. To remedy the injustice caused, the Council has agreed to make a payment to Mrs X.

The complaint

1. Mrs X complains the Council gave incorrect pre-application planning advice for a commercial unit she had signed a lease agreement on. She also complains the Council did not respond to her requests for further information relating to the advice given, for a significant amount of time.
2. Mrs X says this has caused her and her business severe financial hardship as she was paying for a unit she was unable to use. She says this has also affected her physical and mental health.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)

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What I have investigated

7. Paragraph 4 (above) applies to this complaint. I have exercised discretion to investigate Mrs X’s complaint back to October 2021 which is when she first made her pre-application planning enquiry with the Council.

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How I considered this complaint

8. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant policy and guidance

10. There is no duty for councils to provide pre-application advice and councils cannot insist developers seek such advice. However, it is accepted good practice for councils to offer and encourage pre-application discussions and most do so.
11. Government policy and practice also supports pre-application advice “to improve the efficiency and effectiveness of the planning application system.”

Council guidance

12. The Council offers a pre-application advice service for a nominal fee.
13. At the time of the application and complaint from Mrs X, the Council’s website had information on how to obtain more detailed advice and the fees and timescales applicable to this.

What happened

14. At the beginning of Autumn 2021, Mrs X signed a lease agreement (the lease) for a commercial unit. The lease was for 15 years with a break clause after 5 years of occupation.
15. At the beginning of October 2021, and after signing the lease, Mrs X made a pre-application planning advice enquiry (the enquiry) with the Council. She paid a £40 fee for the Council’s service. She wanted to know if she would need planning permission to carry out works on the unit before opening it for business. Mrs X was under the impression that planning permission would not be needed but wanted to formally check.
16. At the beginning of December 2021, the Council replied to advise that she would need planning permission for the proposed development. Its response explained how to apply for planning permission and gave some general information about the processes involved. The letter gave the officer’s contact details and invited Mrs X to get in touch if she wanted any further information.
17. Mrs X says that she emailed the officer straight away to ask for clarification. Mrs X says she never received a reply.
18. Mrs X says she emailed the officer again in February 2022. This time she received an out of office reply to say the officer had left the Council.
19. Mrs X says she contacted the Council again via email a couple of times between February 2022 and July 2022 but did not chase this more actively because she was busy dealing with unrelated repair works to the unit which had been ongoing since 2021. Repair works were finished in July 2022. Mrs X says she did not receive any response to these emails.
20. The Council has confirmed it received a call from Mrs X in March of 2022 regarding the issue, but it did not return the phone call.
21. Mrs X says from July 2022, she began to chase the Council more aggressively, making some phone calls and sending a large number of emails so she could find out what type of planning permission would be needed. She says she again received no response to these.
22. At the end of April 2023, Mrs X contacted her local councillor and asked for help. The councillor contacted the Council’s planning department.
23. The Council replied to advise that incorrect advice had been given in December 2021 and that no planning permission was needed. It said it would refund Mrs X’s £40 enquiry fee, send her a letter to confirm and also apologise.
24. Mrs X made a formal complaint to the Council early in May 2023. She explained the significant impact she felt the Council’s incorrect advice had had on her business and personal finances. She said that if she had received the correct advice she could have started trading much sooner. She was unhappy with receiving only an apology for the Council’s error.
25. The Council replied in mid-May 2023. In its stage one reply, the Council:
• apologised for the incorrect advice given to the enquiry;
• said it could not find copies of any emails from or to Mrs X and that it would be grateful if she could forward it the original emails;
• confirmed it could find one record of a call made to its customer service centre but that the record was passed through to the planning section blank, made invalid and was not passed to a planning officer for a call back; and
• apologised for this error and poor service.
26. Mrs X exercised her right to escalate her complaint to stage two of the Council’s process. She remained unhappy and explained:
• she had copies of numerous emails to the planning team; and
• she wished to be compensated for a quantifiable financial impact the error in advice had caused her.
27. The Council replied towards the end of May 2023. In its response, it
• committed to reviewing its pre-application planning advice service;
• again asked for copies of emails Mrs X had sent to it; and
• explained it was not liable for business decisions made outside of the planning process and could therefore not compensate her for the loss she said she had suffered.
28. Mrs X then brought her complaint to the Ombudsman.

Analysis

The planning enquiry

29. The Council has confirmed the decision in the initial response was incorrect as no planning permission was needed. Giving the wrong information to Mrs X was fault. This caused her frustration and uncertainty. The Council has apologised and refunded her the £40 enquiry fee. I am satisfied, that in the circumstances of this complaint, this is not an appropriate remedy. I have made a recommendation below to remedy the injustice caused.
30. The Council has confirmed that as of October 2023, it has introduced a new system whereby pre-application enquiry responses are checked by a line manager before being sent out. I welcome this service improvement.

Further contact with the Council

31. The Council has said it failed to call Mrs X back when she called in to speak to the planning department in March of 2022. This is fault. There is, however, no ongoing injustice to Mrs X as the Council has since apologised for its error. I am satisfied this is an appropriate remedy.
32. In response to my enquiries, the Council confirmed it had no other contact records from Mrs X, particularly emails, other than those mentioned in both its stage one and two responses to her.
33. Both the Council and the Ombudsman offered Mrs X the opportunity to send in evidence of emails sent to the Council. No evidence has been provided.
34. With a lack of any other written evidence to the contrary, and on the balance of probabilities, I am satisfied the Council did not fail to reply to Mrs X’s many emails. I therefore find no fault here.

Mrs X’s losses

35. Mrs X would like the Council to pay her £27,000. She says this is the amount of money she spent on rent when she was unable to open her unit for business. She says this was due to the Council’s initial error and the time taken to rectify this.
36. Although the Council gave the wrong advice, it was open to Mrs X to submit a planning application as the Council had indicated she needed to. I am satisfied this would have resolved the situation much more quickly.
37. While the Council’s original decision letter did not direct her to its website, the planning section of the website at the time had clear information on how to get more detailed advice about what type of permission would be needed and other planning-related queries. It was also open to Mrs X to use this further service.
38. I have seen no evidence to show Mrs X pursued the matter with urgency which may have mitigated some of the remaining time spent where she felt unable to open the unit for business.
39. The Council’s position was that it could not be held responsible for business decisions made outside of the planning process. I agree. The costs Mrs X incurred for renting the unit are not a direct result of flawed planning advice. I am not persuaded that Mrs X’s claimed injustice is justified. I find no fault in the Council’s actions in refusing to compensate Mrs X.

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Agreed action

40. To remedy the injustice caused by the fault I have identified, the Council has agreed to pay Mrs X £150 to recognise the distress caused by being given the incorrect advice.
41. This is in addition to the Council’s offer of £40 already made.
42. It should do this by 2 January 2024.
43. The Council should provide us with evidence it has complied with the above action.

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Final decision

44. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman