Summary: The Ombudsman will not investigate Mr B’s complaint the Council missed the deadline to lodge an application to judicially review a decision made by the Planning Inspector. The complaint is late and there are no good reasons for the Ombudsman to exercise his discretion and now investigate.

The complaint

1. The complainant, whom I shall call Mr B, complains that by missing the deadline the Council has allowed a development for 30 houses on woodland near his home. Mr B complains about the loss of woodland and the impact the development will have on his amenity.
2. Mr B also complains the Council failed to notify him the developer made an appeal against its decision to refuse the planning application. Mr B says the Council deliberately excluded him because he was most likely to send comments to the Planning Inspector considering the appeal.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered Mr B’s complaint, the complaint correspondence between Mr B and the Council and the planning documents available on the Council’s website. I sent a draft decision to Mr B and considered the comments he made in reply before I made my final decision.

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What I found

7. In February 2016, the Council refused an outline planning application for residential development on land adjoining Mr B’s property. The applicant exercised their right of appeal against the decision and the Planning Inspector allowed the appeal and granted planning permission in January 2017.
8. The Council intended to make a claim to the High Court for judicial review of the Planning Inspector’s decision. There is a strict six-week time limit for filing a claim with the High Court. The Council instructed a barrister but acknowledges it was a day late submitting the required papers. The claim for judicial review could not proceed and the planning decision was not challenged in the High Court.
9. The Council approved the applicant’s reserved matters planning application showing the detail of the development in May 2018.
10. The Council’s failure to submit the papers in time took place more than 12 months ago and the restriction in paragraph 3 applies. I do not consider there are good reasons for the Ombudsman to exercise his discretion and now investigate this late complaint. This is because Mr B could have complained sooner if he wished to pursue the matter. The Ombudsman also could not say there is identifiable injustice to Mr B arising from the Council’s failure. The Ombudsman cannot say whether a judge would have allowed the claim to proceed or predict the outcome of any hearing. While Mr B considers a judicial review would have led to the planning permission being quashed, this is not a conclusion the Ombudsman can reach.
11. Mr B also complains the Council failed to notify him when the applicant made their appeal to the Planning Inspector. Mr B did not live in the property when the original planning application was made. Local planning authorities are required to notify parties who commented on the original planning application of an appeal. As Mr B did not comment on the original application, it was not fault for the Council not to notify him of appeal. And even if the Ombudsman could say there was a failure by the Council, there is no identifiable injustice arising from this. The Ombudsman could not say any representations made by Mr B would have been so significantly different from other comments received they would have changed the decision made by the Planning Inspector.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because the complaint is late and there are no good reasons for the Ombudsman to exercise his discretion and now investigate.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman