Mid Devon District Council (18 016 678)

Category : Planning > Other

Decision : Upheld

Decision date : 15 Aug 2019

The Ombudsman's final decision:

Summary: There was avoidable delay by the Council in dealing with correspondence about Mr X’s development, for which it has apologised. The Council’s responses were satisfactory and its delays were not the cause of the time, trouble and costs incurred by Mr X in making a new planning application.

The complaint

  1. Mr R makes this complaint for and with the consent of Mr X. Mr R says the Council delayed and then wrongly advised Mr X to make a planning application and then imposed an inappropriate condition when granting planning permission. The Council has now provided correct information about Mr X’s development. So, Mr X seeks an apology and compensation for his anxiety, time and trouble caused by the Council’s delay and uncertainty about status of his development. Mr X also seeks repayment of his application costs. (In responding to a draft of this statement Mr R and Mr X said they were not complaining that the Council had given wrong advice.)

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. 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), 26A(1) and 34(3), as amended)
  2. 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)

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How I considered this complaint

  1. I have:
  • considered the written complaint and supporting information provided by Mr R;
  • talked to Mr R about the complaint;
  • considered planning information about Mr X’s development available on the Council’s website;
  • asked for and considered the Council’s comments on the complaint;
  • shared the Council’s comments with Mr R; and
  • given Mr R and the Council an opportunity to comment on a draft of this statement and considered their responses.

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What I found

Background

  1. Most development needs planning permission from the local council. The two main planning applications and permissions are ‘outline’ and ‘full’ (detailed). An outline application allows people to find out if development is acceptable in principle before they prepare detailed proposals for a site. An outline application form will show which details, called ‘reserved matters’, will the subject of further applications should the council grant outline planning permission. The details that may be ‘reserved’ are access; appearance; landscaping; layout; and scale of the development. An outline planning permission will include a time limit for applying for approval of reserved matters. People must get approval to all reserved matters before they may start their development.
  2. There is also a time limit for starting development. Examples of works that may ‘start’ a development include, laying foundations for a building or constructing a new access to a site. Once started, there is no general rule about completing a development. But, if development does not start before the time limit expires, the planning permission will lapse (end) and the development can no longer lawfully take place.
  3. If there is doubt about whether proposed or existing development will be or is lawful for planning purposes, people may apply to the council for a lawful development certificate. If the council finds the development meets the relevant legal rules, it will grant the certificate. The grant of the certificate for existing development means that development is lawful for planning purposes.

What happened

  1. Several years ago, Mr X’s then agent sent the Council an application for outline planning permission for development on Mr X’s land. The application form showed no reserved matters left for later approval. After considering the application, the Council granted “outline planning permission” for the development (‘the Permission’). The Council attached conditions to the Permission. As the application had not ‘reserved’ any matters for later approval, the Permission did not include a condition about approval of any reserved matters. The time limit for starting the development was three years from the Council’s decision.
  2. Within three years of granting the Permission, the Council wrote to Mr X (‘the Start Letter’). The Start Letter confirmed, among other points, the new access for the development had been constructed in line with the Permission.
  3. Years passed. Mr R became Mr X’s agent. Mr R understood from Mr X the Council considered the Permission had lapsed. Mr R wrote to the Council (‘the Position Letter’). Mr R said, despite using an outline application form and the Permission stating it was an ‘outline’ approval, the Council had clearly granted a full planning permission. Mr R also said the Start Letter showed the development had started and so the Permission could not have lapsed. Mr R asked the Council to confirm the Permission was for detailed development that had started within three years and was therefore valid.
  4. Two months later, Mr R chased the Council for a response and a telephone conversation took place between Mr R and a Council officer (‘the Officer’). Mr R says the Officer told him the only way forward was for Mr X to make a new planning application to regularise matters. Mr R says he asked the Officer to put his views in writing. The Officer then emailed (‘the Email’) Mr R and said:
  • the Council could not change its official records, which showed the Permission as ‘outline’; and
  • referred Mr R to the Start Letter, which dealt with conditions on the Permission; and
  • confirmed the Council’s records showed compliance with Permission conditions, including about access for the development.
  1. A few months later, Mr R sent the Council a full planning application (‘the Application’), with a supporting statement. In the statement, Mr R set out why he considered the Permission was wrongly recorded as ‘outline’. He explained why the Permission, with its conditions, gave full planning permission despite its heading as ‘outline’ approval. Mr R also said the Council’s records showed the Permission had started on time and so was valid. The statement ended saying the Application was made, on the Council’s advice, to regularise the planning position despite the facts showing the existence of a valid full planning permission. Mr R also asked the Council to take into account the Permission development had been started.
  2. After considering the Application, the Council granted planning permission (‘the Second Permission’). The Second Permission included a condition setting a time of limit of three years for development to start.
  3. Mr R contacted the Council. Mr R said the Second Permission had not regularised the planning position because the time limit condition failed to recognise the development had started. Mr R also said that Council planning officers had spoken to him and said they agreed with him the Permission was valid. Mr R asked the Council to clarify its position.
  4. Mr R chased the Council for a response and, about five months later, the Council replied (‘the Confirmation Letter’), apologising for its delay. The Council said the Permission had been a ‘full’ planning permission and the Start Letter confirmed development had properly started within the three-year time limit. The Permission therefore remained valid.
  5. Mr R complained to the Council. Mr R said the Council had now confirmed his position was correct (see paragraph 10 of this statement) and the Council had wrongly advised him to apply for the Second Permission. Mr R said the Council had then wrongly applied a time limit to the Second Permission. Mr R said securing the Second Permission had been a waste of time and money. Mr R asked the Council to refund the Application fee and pay his costs. (In responding to a draft of this statement, Mr R says the complaint was not about the Council giving wrong advice.)
  6. The Council replied two months later and apologised for its delay. The Council said Mr R should have applied for a lawful development certificate if he wanted a formal decision on the status of the Permission. Deciding such an application was the only way the Council could formally determine the legal status of the Permission. The Council said it was unreasonable to consider any telephone comments by the Officer, which did not appear in the Email, were binding on the Council. And, relying on any such comments, rather than applying for a formal determination, had been at Mr X’s own risk and, therefore, at his own expense.
  7. The Council later issued a third planning permission for Mr X’s development for reasons not related to this complaint. This third permission includes the start date for the development that appears in the Start Letter.
  8. In coming to the Ombudsman, Mr R explained why Mr X had approached him about his development. Mr R said Mr X was considering selling the development site and concerned uncertainty about the status of the Permission might affect that sale.
  9. In responding to the Ombudsman, the Council:
  • confirmed it could not change its formal planning records that showed the Permission as an outline planning permission;
  • said a ‘formal determination’ of the status of the Permission needed a lawful development certificate and, as professional planner, Mr R could advise Mr X about this;
  • confirmed it held no records of the telephone conversation between Mr R and the Officer but, the Email did not tell Mr R to make a planning application and referred him to the Start Letter;
  • said Mr X’s concerns about the start date condition in the Second Permission could have been resolved easily and without significant costs by an exchange of letters; and
  • said it had apologised for its delay in responding to Mr R’s letters but it had no financial liability for Mr X’s costs.
  1. Both Mr R and the Council admit that roughly the same planning fee applied to making the Application and for seeking a lawful development certificate about the status of the Permission. Mr R says other costs would have been incurred in seeking a lawful development certificate.

Consideration

  1. The contact between Mr R and the Council that led to this complaint essentially concerns the planning status of the Permission. My role is to consider whether the Council acted with fault during that correspondence. The Council has admitted it was at fault in delaying its responses to letters written by Mr R and has apologised for this. My focus, therefore, is whether there is evidence of further fault, linked to the Application, and, if so, how this affected Mr X.
  2. Mr R says the Council gave Mr X no choice but to make the Application. But, Mr R says making the Application was a waste of Mr X’s time and money as it did not ‘regularise’ the planning position of his development. I have no reason to doubt that Mr R understood, from his telephone conversation with the Officer, the Council wanted a new planning application. And yet, neither party can produce contemporaneous and objective evidence about the contents of this telephone conversation. It is therefore possible the two parties misunderstood each other. I also have the Email, sent by the Council shortly after that telephone conversation, which does not suggest and or ask for a new planning application.
  3. I recognise Mr R may have found the Council’s, delayed, response in the Email unhelpful. And yet, the Email does provide a response to the Position Letter. The Email effectively confirms the recorded status of the Permission, as ‘outline’, and refers to the Start Letter for the Council’s position. I read the Start Letter as showing the Council’s stated position is the Permission development had started for planning purposes.
  4. I therefore find the balance of the evidence, which includes the Email:
  • shows the Council did provide an acceptable, but delayed, written response to the Position Letter; and
  • does not show the Council asked for a new planning application.
  1. While the evidence I have seen does not lead me to find the Council did suggest and or ask for the Application, I have, for completeness, considered events after the grant of the Second Permission.
  2. I recognise Mr X’s dissatisfaction with the Second Permission because it included a condition about starting the development within three years. The Council does not admit it was at fault in using that condition. But, the Council now accepts it could have omitted that condition, as worded, from the Second Permission: I agree. I also agree with the Council that an exchange of letters could have resolved any concerns about that condition. So, while no doubt annoying to Mr X, even if I were to find fault by the Council in its handling of the Application, I do not find the Second Permission’s wording caused him significant injustice. (There is now no need for the Council to issue a letter about the Second Permission condition. This is because Mr X now has a third planning permission with a condition that gives an historic start date for the development.)
  3. I also considered the Confirmation Letter, which triggered Mr X’s complaint to the Ombudsman. Essentially, the Confirmation Letter gave a direct response to the Position Letter. Mr R sent the Position Letter about a year before the Council’s Confirmation Letter and before submission of the Application. I recognise that receiving the Confirmation Letter would have been frustrating for Mr X. And yet, the Confirmation Letter does not say the Council can change the recorded status of the Permission. And, the Confirmation Letter, again, refers to the Start Letter. So, the Council’s position, in the Confirmation Letter, remains in line with the Email. The added, written, comment made by the Council in the Confirmation Letter is the Permission development did lawfully start and so the Permission was valid.
  4. However, the Confirmation Letter is not a formal determination of the status of the Permission. As the Council says, a lawful development certificate is the means to provide such a formal determination. The Council might have included, in the earlier Email, the direct comment made in the Confirmation Letter. And, it is regrettable it did not do so given it appears that comment would have reassured Mr X. (I cannot know whether any prospective buyers of the development site would have found the Confirmation Letter satisfactory.) And yet, I do not find the absence of that comment from the Email means the Council falls below acceptable administrative standards: The Email provided a satisfactory response to the Position Letter. I do not find fault by the Council caused the injustice felt by Mr X, in making the Application, after he received the Confirmation Letter.
  5. The Council has apologised for its delays in responding to Mr R’s letters. I find the Council’s apologies suitably and proportionately put right injustice to Mr X arising from the Council fault identified at paragraph 22 of this statement.

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Final decision

  1. I completed my investigation finding the Council’s apology has proportionately and suitably put right injustice to Mr X arising from its avoidable delays.

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Investigator's decision on behalf of the Ombudsman

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