Kirklees Metropolitan Borough Council (21 004 337)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 28 Mar 2022

The Ombudsman's final decision:

Summary: Mrs D complains about planning advice provided by the Council. The Ombudsman has discontinued the investigation because there is not enough evidence of fault to warrant further investigation.

The complaint

  1. The complainant (whom I refer to as Mrs D) is represented by her husband (Mr D). They state the Council provided incorrect planning advice in 2020 which meant they submitted an unnecessary planning application. They also refer to the Council’s refusal of a subsequent Lawful Development application.

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What I have investigated

  1. I have considered the complaint about incorrect advice in 2020. I explain below why the rest of the complaint falls outside our jurisdiction.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • we could not add to any previous investigation by the organisation, or
  • further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

  1. We cannot investigate a complaint if someone has appealed to a tribunal (such as the Planning Inspectorate) or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)

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How I considered this complaint

  1. I considered the information provided by Mrs D. I shared my draft decision with both parties.
  2. Mrs D says the Council provided incorrect advice about whether a planning application was required to carry out works to her home in 2020. The Council advised Mrs D that:

Whilst Council Officers can give informal advice it is not their role to act as professional consultants to individuals or give formal binding legal or Planning advice other than the decision itself. The correspondence from the Officer is not in the form of instruction but expressed as opinion. The opinion was expressed in good faith on the basis of her understanding of relevant case law which would have been given without undertaking a thorough analysis and I would have expected your consultant to know this as part of his greater responsibilities to you and to satisfy himself of the accuracy of the advice before instructing you on the appropriate action to take. In particular with regard to the initial application for planning permission you could have taken the first option identified by the Officer to proceed with the opportunity to appeal to the Planning Inspectorate against any refusal. The planning application and the CLD [Lawful Development] processes carry the right of appeal against non-determination which was a valid option for you to address any concerns about delay.

  1. The Council is correct that any pre-application advice is considered informal and not binding. In view of this I do not see that further investigation is warranted. It would not add to what is already known in the case. I appreciate Mrs D disagrees about the status of the Council’s advice, but I find no basis to justify additional consideration of this matter given the Council’s advice was not binding. I intend to discontinue (end) the investigation.

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Final decision

  1. I have discontinued the investigation.

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Parts of the complaint that I did not investigate

  1. Mrs D has appealed to the Planning Inspectorate about the Council’s refusal of the Lawful Development application. As such the Ombudsman cannot consider this part of the complaint, we will not duplicate the role of a Tribunal.

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Investigator's decision on behalf of the Ombudsman

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