Summary: We will not investigate Mrs X’s complaint about the Council’s handling of a planning matter. This is because the complaint is late and the Council’s actions did not cause the injustice Mrs X claims. We could not therefore achieve the outcome Mrs X wants, which includes paying her compensation of nearly £35,000.

The complaint

1. The complainant, Mrs X, complains the Council refused her application for planning permission in 2020 due to concerns about land use and ownership. The developer then wrote to Mrs X ordering her to remove her fence, as this had apparently incorporated land designated as public open space into her garden.
2. Mrs X says the developer has now confirmed she owns the land but the Council has not recognised this.

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The Ombudsman’s role and powers

3. 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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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), as amended)
7. 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

8. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

9. The Council considered Mrs X’s original planning application in 2020, more than three years before she complained to the Ombudsman. Her complaint about its actions at that time is therefore late. Further, its records show that it did not refuse Mrs X's application. Rather, Mrs X withdrew it. I have no doubt this was based on advice from the Council that it could not determine the application due to the uncertainty regarding the status and ownership of the land but it is an important distinction as refusal of Mrs X’s application would have carried a right of appeal to the Planning Inspector, as set out at Paragraph 7.
10. It is also important to note that the injustice Mrs X claims is not the direct result of the Council’s actions; Mrs X applied for planning permission and paid the Council’s fee because she wanted to develop her property. She incurred this cost at risk the application would be refused and that the fee would therefore be wasted.
11. Mrs X’s other costs stem from her dispute with the developer about land ownership and we would not therefore recommend the Council reimburses her or pays her compensation for the time she has spent to try to resolve the matter. We would also not recommend it pays Mrs X £15,000 for moving in and out of the property, and for a possible future house sale that has not yet happened. Mrs X may wish to seek legal advice about a claim for these costs, whether this is against the developer, the Council, her solicitors or the previous owner.
12. Mrs X says the ownership issue is now resolved and she wants the Council to recognise she owns the land in question. But it is not for the Council to determine who owns the land and it has explained to Mrs X that the issue in this case is that the land, regardless of who owns it, is designated as public open space rather than residential curtilage. It has therefore explained she would need to apply for planning permission for change of use or, if she believes planning permission is not required, a certificate of lawful development. If Mrs X wishes to resolve the issue she should consider how to proceed and if she decides not to follow the Council’s advice she should be prepared for the Council to take enforcement action for unauthorised development.

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Final decision

13. We will not investigate this complaint. This is because the complaint is late and the injustice Mrs X claims is not the result of the Council’s actions.

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Investigator's decision on behalf of the Ombudsman