Summary: Mrs X complains about the way the Council handled planning matters that affect her home. Mrs X says she has been unable to progress renovations to her home, has incurred application fees that may have been unnecessary, and has spent time and trouble chasing the Council for responses. She says this has all caused her stress. The Ombudsman finds the Council at fault for wrongly issuing a Certificate of Lawfulness and for the way it handled her complaint. We find this fault caused Mrs X injustice. The Ombudsman is satisfied that the Council’s refund of the Certificate of Lawfulness application fee is a suitable remedy for that fault. The Council will apologise to Mrs X and make a payment to recognise the injustice caused by the fault in its complaint handling.

The complaint

1. The complainant, who I refer to here as Mrs X, complains that the Council has mishandled planning matters that affect her home. She complains that the Council:
1. wrongly approved a Certificate of Lawfulness;
2. rejected a planning application because of an element that a Council officer advised her to include;
3. has given her inconsistent advice; and,
4. has handled her complaint poorly.
2. Mrs X says she has been unable to progress renovations to her home, has incurred application fees that may have been unnecessary, and has spent time and trouble chasing the Council for responses. She says this has all caused her stress.

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What I have investigated

3. I have investigated each part of Mrs X’s complaint. However, I cannot fully investigate part b of Mrs X’s complaint, about the Council’s refusal to grant planning permission.
4. As I have said in paragraphs nine and 18, the Ombudsman cannot look at decisions to refuse planning permission. This is because Mrs X had the right to appeal this decision with the Planning Inspectorate. However, the Ombudsman can look at how a council administers the process.

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The Ombudsman’s role and powers

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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with a council’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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)

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How I considered this complaint

10. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
11. I have seen the relevant planning documents, available on the Council’s planning website.
12. I have considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

What should have happened

Planning law

13. The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise. Planning considerations include things like the impact on amenities, such as increased noise or decreased light and privacy.
14. Councils’ planning powers are set out in Part VII of the Town and Country Planning Act 1990. Planning powers are discretionary. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
15. Councils must be able to show they have considered the material planning considerations. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
16. Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission. A senior planning officer will then decide most applications, but some go to the council’s planning committee for councillors to decide the application.
17. Policies and the supplementary planning document must be taken into account.
18. If a council refuses a planning application, the applicant has the right to appeal to the Planning Inspectorate. 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
19. There are two types of planning permission: deemed planning permission (known as permitted developments), and express planning permission which is granted by the local planning authority (council), or the Planning Inspector or Secretary of State, on planning applications or appeals.
20. Section 191 of the Town and Country Planning Act 1990 enables a person to apply for a Certificate of Lawfulness (CoL). This means that existing use of a building or other land can be certified as lawful. It is generally used to regularise previously unauthorised development. A CoL means that a council cannot take enforcement action about a breach of planning policy or conditions for that building or land, even if it was unlawful at the time. A successful application will lead to the issue of a CoL.
21. As with planning applications, CoL applications and related documents should be publicly available. These are usually published on a council’s website.

Complaints procedure

22. The Council has a three-stage corporate complaints procedure. Once a person has made a complaint, an officer from the relevant department will contact the complainant within three working days of receiving the complaint. They will discuss the complaint with the complainant and try to resolve it.
23. If the complaint cannot be resolved by this informal stage, the relevant department will investigate the complaint at stage one. The Council will contact the complainant within 15 working days.
24. If the complainant is not satisfied with the stage one response, they can ask for their complaint to be independently investigated at stage two. The Council aims to respond within 20 working days. If the complaint is complicated and the Council needs more time to investigate, it will contact the complainant and explain this.
25. If the complainant remains dissatisfied, they will be signposted to the Ombudsman.

What happened

26. Mrs X wanted to build an extension to her home and put up a shed in her garden.
27. In November 2016, Mrs X submitted an application to the Council for a Certificate of Lawfulness (CoL) for a single storey rear extension to her house. This application said Mrs X believed a single storey rear extension was allowed under permitted development rights.
28. In January 2017, the Council approved this application and granted a CoL. The Council said planning permission was allowed under permitted development rights.
29. Mrs X began building the extension in May 2017.
30. In June, the Council received a complaint about the building works.
31. An enforcement officer from the Council visited Mrs X in July. Mrs X’s extension was bigger than the approved plans. The officer told Mrs X she needed to submit a full planning application, with updated dimensions, to regularise the breach.
32. Mrs X told the enforcement officer that she also wanted to build a shed. The officer advised Mrs X that the shed could be a maximum length of seven metres.
33. In August, Mrs X submitted a full planning application. This included the extension, which had already been built, and plans for a shed. The architect’s drawing showed the length of the proposed shed to be eight metres.
34. In October, the Council refused Mrs X’s application. The case officer’s report said the extension was acceptable and not considered to have an overlooking or overbearing impact.
35. However, the case officer said the proposed shed was out of scale, would be built with different materials to the house, and would have an overbearing impact on neighbours. The Council said the proposed shed was not in line with national or local policies.
36. Mrs X contacted the Council and asked for advice. She was told she could remove the shed from the plans and reapply.
37. Later in October, Mrs X submitted a second full planning application without the proposed shed.
38. In an email exchange between Mrs X and the enforcement officer, the officer told Mrs X that if something is not built in accordance with an approved CoL plan, the CoL is considered void. He said that if the Council approved her second application, she could then build her shed under her permitted development rights.
39. In December, the Council approved Mrs X’s second planning application.
40. In January 2018, Mrs X applied for a CoL for the proposed shed.
41. The next day, Mrs X asked the Council if she needed a CoL or full planning permission for the shed. The Council suggested that she submit an application for a CoL to formally confirm if she needed full planning permission. It said she might also choose to submit a CoL application if she believed that her proposal for a shed was allowed under permitted development but wanted to receive formal confirmation that it is lawful.
42. The Council advised Mrs X to check and see if there were any conditions on previous planning permissions for her property that could limit or remove her permitted development rights. It said she should do this before submitting a CoL application. It said she could do this check by asking the Council’s planning department.
43. Mrs X did this by emailing the Council’s planning department.
44. The next day, Mrs X visited the Council offices. She says the officer she spoke to could not find any indication of restrictions or conditions.
45. The following day, the Council contacted Mrs X and said there were restricted conditions on her property regarding her permitted development rights. In light of this, Mrs X withdrew her second CoL application. She says the Council refunded the fee for that application.
46. Mrs X spoke to the Planning Inspectorate in February. She says she did not formally appeal. She says the Planning Inspectorate was not able to help her, and she should speak to the Council.
47. Later in February, Mrs X complained to the Council. She questioned why she needed to apply for full planning permission when the shed and extension were covered by her permitted development rights. She said the enforcement officer had given advice on dimensions and limits for the shed.
48. Mrs X said she could not understand why her application for planning permission had been refused. She disagreed that the extension that was built was in breach of the CoL. She said she still did not understand if she needed full planning permission for the shed, but believed it could be built under her permitted development rights.
49. Mrs X complained that the Council told her about restrictions to her permitted development rights, and said she could not build a shed without prior written consent from the Council. She felt the first CoL was wrongly issued.
50. In March, the Council emailed Mrs X apologising for the delay in responding to her complaint. It asked her to re-send her complaint, which it would review and respond to.
51. Mrs X re-sent her complaint two days later.
52. In April, Mrs X chased the Council three times for a response to her complaint.
53. The Council replied at the end of April saying it was waiting for information from some officers which it needed before it could respond in full. It said it would contact her the following week.
54. The Council sent its stage one response to Mrs X’s complaint at the end of June.
55. The Council apologised for the delay in responding. It said the reason for the delay was “competing workload”.
56. The Council listed the planning history for Mrs X’s house. It showed that in 1988, when the development was built, planning permission had been granted with a condition that “there shall be no alteration to any elevation of the development … and no additional window or extension shall be constructed without the prior written permission of the District Planning Authority”.
57. The Council said that because of this, it made a mistake when it granted the CoL in January 2017, because “procedurally, that could not be granted”. The Council accepted it made an incorrect decision and refunded the fee Mrs X had paid for the CoL application.
58. The Council outlined two other conditions on her property that restrict her permitted development rights. These are to do with fences, gates and walls, and fencing, screen walls or any means of enclosure.
59. The Council said that because of these, “planning permission would be required for any development within [Mrs X’s] curtilage”. It said that for people whose permitted development rights had been removed, certain planning applications had once been free. However, since January 2018, Mrs X would need to pay a fee for any application she submitted, in line with new Regulations.
60. The Council said it could not provide free advice on Mrs X’s proposal to develop her property. It suggested she use an architect and get pre-application advice through the Council’s formal procedures.
61. Two days later, Mrs X asked for her complaint to be dealt with at stage two of the Council’s complaints procedure.
62. In July, Mrs X chased the Council for a response.
63. In August, the Council acknowledged Mrs X’s request for a stage two response. It apologised for not responding and committed to responding the next day.
64. Mrs X complained to the Ombudsman. The Ombudsman contacted the Council about its stage two response. The Council acknowledged there had been a delay in responding. It said it would write to Mrs X by the following day at the latest.
65. At the end of August, Mrs X chased the Council for a stage two response.
66. Mrs X had not received a response by the end of December, so she chased the Council again. She did not receive a stage two response.

Analysis

Incorrect approval of a Certificate of Lawfulness

67. Mrs X complains that the Council wrongly approved a Certificate of Lawfulness (CoL) (part a of the complaint).
68. In its stage one response to Mrs X’s complaint, the Council accepted that it made a mistake when it granted the CoL.
69. I find the Council at fault for granting this CoL when it should not have. This caused Mrs X injustice because of the additional time and trouble in having to reapply for the correct permission to make sure her extension was lawful.
70. The Council refunded Mrs X the CoL fee she paid. I am satisfied that this is a suitable remedy for the injustice caused by this fault.

Council’s advice led to rejection of a planning application

71. Mrs X complains that the Council rejected her first planning application because of an element that a Council officer advised her to include (part b of the complaint). She says that the enforcement officer who visited her gave her advice on the dimensions of the proposed shed, which she took on board, but the application was rejected because of the proposed shed.
72. The Council says when the officer gave her advice, Mrs X did not say that she planned the shed to be nearly eight metres long. It says the officer assumed Mrs X intended to build a “normal sized” shed. It says that because Mrs X had to submit a full planning application anyway, inclusion of a shed would be considered under its normal procedure.
73. The Council says that because of the “extensive size” of the shed, it was right to refuse the application.
74. Mrs X says the enforcement officer advised her that her proposed shed should be no more than seven metres long. The architect’s drawings show a plan for a shed that is eight metres long. This is bigger than the advice Mrs X says she was given. For this reason, I do not find the Council at fault.
75. Also, the case officer’s report says there were two other reasons that the planning application was refused. These were the proposed materials the shed was to be built with, and the overbearing impact the shed would have on neighbours.
76. I find that the planning application would likely have been refused in any event, because of these two other factors.
77. Mrs X complains that the case officer’s report was not shared with her or put on the planning website for some time after the decision was made.
78. The case officer reports for both planning applications are on the Council’s planning website. The website shows the date that the case officer’s reports were uploaded.
79. For the first planning application, the decision was made on 18 October and the case officer’s report was uploaded on 19 October.
80. For the second planning application, the decision was made on 21 December and the case officer’s report was uploaded on 3 January. This is six working days after the decision was made.
81. I do not find the Council at fault for the time taken to upload the case officer’s report.
82. The Council says it does not normally send case officer reports directly to applicants. I do not find the Council at fault for not sending Mrs X either of the case officer’s reports. This is because councils are under no obligation to do this.

Inconsistent advice

83. Mrs X complains the Council has given her inconsistent advice (part c of the complaint).
84. Initially, the Council granted Mrs X a Certificate of Lawfulness (CoL) for a single storey rear extension to her house. It was wrong to do this, and I have found the Council at fault for this (see paragraph 69).
85. The enforcement officer’s advice to Mrs X in November was that she could resubmit a full planning application and if that was granted, she could build a shed under her permitted development rights.
86. I do not find the Council at fault for saying this. The Council has since confirmed that the restrictions on Mrs X’s permitted development rights do not restrict her from building a shed under those rights.
87. The Council’s stage one response says that “planning permission would be required for any development within [Mrs X’s] curtilage”.
88. Permitted development rights are a national grant of planning permission which allow certain developments to be carried out without making a planning application to the Council.
89. I find the Council’s complaint response is confusing. It looks like the Council is saying Mrs X needs to make a planning application in order to get planning permission. The Council did not explain that permitted development rights are a form of planning permission.
90. I find that it would have been best practice to have explained this to Mrs X in layman’s terms, particularly given that she repeatedly voiced her confusion over the planning process and what was required of her. However, I do not find that this is significant enough to constitute fault. This is because, ultimately, she was given the correct advice.
91. Mrs X complains that the Council said there was no guarantee that pre-planning approval would guarantee the approval of plans.
92. I do not find the Council at fault for saying this. There are many reasons why a planning application might be refused. Those reasons cannot be fully explored or considered until a council is making its decision, weighing up all the relevant information.
93. Mrs X complains that the case officer called her in September and said everything looked fine with her application, and that she saw no reason why it would be refused.
94. The fact that Mrs X’s planning application was later refused is not fault. A council’s verbal communication or informal comments to an applicant should not be taken as the council’s final or formal decision.
95. As I have said above, there are many factors that are considered by a case officer when determining a planning application, not just the application itself.

Fees

96. Mrs X paid for the first CoL application. This fee was refunded when the Council accepted it made a mistake when it granted the CoL.
97. Mrs X paid for the first planning application, which was refused. The second application, which was approved, was free.
98. Mrs X applied for a second CoL. The Council refunded this fee when she withdrew her application.
99. I find that Mrs X has paid the correct amount for the applications.

Poor complaint handling

100. Mrs X complains that the Council has handled her complaint poorly (part d of the complaint).
101. Mrs X complained in February 2018. After seven working days, the Council emailed Mrs X apologising for the delay in responding, and asked her to resubmit her complaint, which she did.
102. Mrs X then chased the Council for a response three times in April. The Council replied to Mrs X at the end of April, 31 working days after its previous email (in March). The Council said it was waiting for comments from staff before it could respond in full. It said it would be in touch the following week. There is no evidence that this happened.
103. The Council sent its stage one response to Mrs X at the end of June, 45 working days after its previous email (end of April).
104. In August, the Council told Mrs X it would respond to her request for a stage two response the next day. It failed to do this.
105. The Council failed to deal with Mrs X’s complaint in line with its complaints procedure, which sets out time frames for certain actions to have been completed within.
106. The Council accepts that it failed to respond to Mrs X’s complaint at stage two of its complaint procedure, as she requested in June 2018.
107. After Mrs X complained to the Ombudsman, the Council told the Ombudsman it became apparent that considering Mrs X’s complaint at stage two would “likely not assist in providing an alternative explanation or help Mrs [X] achieve the resolution she was seeking”.
108. The Council accepts that it did not contact Mrs X directly about this decision not to address her complaint at stage two. It accepts that in hindsight, this would have been a “sensible action to take”.
109. The Council has said it would like to apologise to Mrs X for this.
110. I find the Council at fault for failing to deal with Mrs X’s complaint in line with its procedure, and for delays and decisions which it failed to tell her about or explain.
111. I find that this fault caused Mrs X injustice because it caused uncertainty and cost her time and trouble in chasing the Council, and then waiting for a response.

Agreed action

112. Within four weeks of this decision, the Council has agreed to write to Mrs X and apologise for the faults identified (paragraphs 105, 106, 108 and 110) and the injustice caused (paragraph 111).
113. Also within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £200. This is to reflect the injustice caused by those faults (paragraph 111).
114. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

115. I have completed my investigation and uphold parts a and d of Mrs X’s complaint. This is because I have found fault in the Council’s actions.
116. I do not uphold parts b and c of Mrs X’s complaint. This is because I have not found the Council at fault.

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Parts of the complaint that I did not investigate

117. As I have said in paragraphs four, nine and 18, the Ombudsman cannot look at decisions to refuse planning permission. This is because Mrs X had the right to appeal this decision with the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman