Summary: Mrs X complained the Council failed to advise her at an early stage that her outbuilding was in breach of planning control. We found no fault with the Council’s actions.

The complaint

1. Mrs X complained the Council failed to advise her at an early stage that her outbuilding was in breach of planning control. She says had she known this earlier, she would have altered the building before it was complete and it would have cost less to bring the structure within the guidance for permitted development rights.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals, including those about a decision to refuse planning permission. (Local Government Act 1974, section 26(6)(b), as amended)
4. 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(1), as amended)

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What I have and have not investigated

5. I have investigated the period from March 2024, when Mrs X first had contact with the Council about her outbuilding, to June 2024 when she made a planning application to the Council.
6. I am not able to investigate any matters after this relating to Mrs X’s planning application or subsequent appeal. This is because Mrs X appealed the Council’s decision to refuse planning permission and the law says we cannot investigate complaints where someone has appealed to a government minister.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Planning Permission

9. Rules governing outbuildings apply to sheds, playhouses, greenhouses and garages as well as other ancillary garden buildings such as swimming pools, ponds, sauna cabins, kennels, enclosures (including tennis courts) and many other kinds of structures for a purpose incidental to the enjoyment of the dwellinghouse. It does not cover any other change of use of the land or outbuilding, or use as separate self-contained living accommodation.

Permitted development

10. Not all development needs planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
11. Outbuildings are considered to be permitted development, not needing planning permission, subject to certain limits and conditions including:
• Outbuildings and garages to be single storey with maximum eaves height of 2.5 metres and maximum overall height of four metres with a dual pitched roof or three metres for any other roof.
• Maximum height of 2.5 metres in the case of a building, enclosure or container within two metres of a boundary of the curtilage of the dwellinghouse.

Pre-application advice

12. There is no duty to provide pre-application advice and councils cannot insist developers seek such advice. But, it is accepted good practice for councils to offer and encourage pre application discussions and most do so. Government policy and practice also supports pre-application advice “to improve the efficiency and effectiveness of the planning application system”.
13. Pre-application advice provided by the local planning authority cannot pre-empt the democratic decision-making process or a particular outcome, in the event that a formal planning application is made.

What happened

14. The Council contacted Mrs X about her outbuilding, which was under construction, in March 2024. A Council officer completed a site visit a few days later. They recorded the dimensions of the structure, including its planned height of over 2.5 metres and that it was being built within two metres of the property boundary.
15. In early April 2024 the Council wrote to Mrs X to advise the outbuilding would require retrospective planning permission. The letter did not state the specific reason for this but did signpost Mrs X to the Council’s webpage called ‘Make a planning application’. This in turn links to its ‘Planning Portal’ which contains information about permitted developments.
16. Mrs X contacted the Council about its letter. Records show Mrs X was told that planning permission would be needed because the outbuilding was over the maximum height as it is within two metres of the property boundary. This was within a week of the letter being sent by the Council.
17. In June 2024 Mrs X made a retrospective planning application. This was refused and Mrs X appealed the outcome to the Planning Inspectorate, but this was also refused. Following further communication with the Council, Mrs X agreed to reduce the height of the outbuilding so that it would fall within the conditions for a permitted development.

Analysis

18. The Council contacted Mrs X in a timely manner following its site visit. It also provided clarity to Mrs X when she telephoned to ask about the reason she was asked to complete a retrospective planning application.
19. The responsibility is on the applicant to ensure a proposed development meets the requirements of planning law. The information is readily available online and the applicant could also have asked the Council for advice prior to starting the work. There is no duty for councils to provide pre-application advice. The Council’s letter of April 2024 signposted Mrs X to online information about planning applications, which includes details of permitted developments. The Council was not at fault.
20. Mrs X said that she would have arranged for the height of the outbuilding to be reduced if the Council advised when she spoke to them in March and April 2024 that it was likely her planning application would be refused. She says this would have reduced the cost, as it could have been done before the initial construction was finished. She also would have avoided the uncertainty and expense of the planning application process.
21. Whilst I understand Mrs X’s frustration, it would not have been appropriate for the Council to give such advice to Mrs X as any pre-application advice cannot pre-empt the outcome of a formal planning application. It was also her responsibility to ensure her building complied with planning laws before and during construction. I therefore do not find any fault by the Council.

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Decision

22. I have completed my investigation and find no fault by the Council.

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Investigator's decision on behalf of the Ombudsman