Summary: Mr X complained the Council gave him incorrect planning advice and then breached an agreement when it refused his planning application. He said he incurred significant expenses based on the agreement with the Council. There is no fault with the way the Council provided advice and have closed Mr X’s complaint.

The complaint

1. Mr X complained the Council gave him incorrect planning advice and agreed that his proposal was acceptable. He said on the basis of this agreement, he submitted a planning application. Mr X said he incurred significant costs for planning fees, architect fees, tree reports, drainage reports and a planning consultant. When the Council refused his planning application, he said it had undermined their agreement. He said the Council should reimburse him for all the fees he incurred.

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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 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
4. 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)
5. 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.

6. 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

7. I have considered Mr X’s complaint and supporting information and have discussed it with him.
8. I have also considered the Council’s response to Mr X’s complaint and the planning application information available online.
9. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

Planning legislation

Planning advice

10. Planning guidance says 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.
11. The guidance goes on to say 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. The advice could, however, be a material consideration to be taken into account and given weight in the planning application process.

What happened

12. In December 2016, Mr X submitted an outline planning application for the erection of a house.
13. In January 2017, the Council’s conservation officer advised the trees within the site contributed to the character of the conservation area and should be retained. On the back of this, Mr X commissioned a tree survey.
14. Mr X said, in May the Council told him it required a full planning application as it could not determine an outline application in a conservation area.
15. From the evidence I have seen, the Council informed Mr X that a full application, rather than an outline was necessary to assess the merits of the scheme. This would allow the Council to assess the effect of the proposal on the conservation area, and nearby listed buildings. The Council said it required the planning details relating to the appearance, means of access, landscaping, layout and scale.
16. Mr X agreed to withdraw the outline application and to re-submit a full application. He asked the Council for written confirmation that progress on certain issues, including the removal of a tree, were agreed.
17. The Council agreed the proposal, including the removal of a tree was acceptable in principle. The Council stipulated the agreement was officer opinion and the scheme would be required to be assessed fully on its merits subject to a full planning application to be determined at development panel.
18. Mr X withdrew his outline application and submitted a full planning application in April 2018. The Council consulted on the planning application. The Council’s conservation officer objected to the removal of a tree.
19. In September, the Council commissioned an independent tree appraisal of the two trees on Mr X’s site. The report concluded the removal of the trees would be high impact and recommended the Council protect them under a Tree Preservation Order (TPO). The Council made a TPO on one of the trees.
20. Mr X complained the Council did not inform him it was carrying out a tree report, and it did not give him, or other consultees the opportunity to rebut it. He said the Council should have undertaken the tree report before it agreed that he could remove the tree. In its response to Mr X’s complaint, the Council accepted the tree report could have been sought earlier in the process. It said, when it was clearly identified as an issue that needed external expertise in addition to that of the officers, a brief was dispatched immediately.
21. Mr X said had the Council commissioned the tree report earlier, he would not have withdrawn the outline application and undergone the expense of a full planning application.
22. In October 2018, the Council refused Mr X’s application. This was on the grounds of the impact of the tree removal and construction of a house on the historic setting of the conversation area and nearby listed buildings. Mr X appealed the decision to the planning inspectorate. This was dismissed in May 2019.

My findings

23. I have focussed on Mr X’s complaint about the planning advice given by the Council, and the timing of the tree report and TPO. Mr X could have appealed to the planning inspectorate about the delays he encountered.
24. Sometimes councils will give planning advice. The person receiving the advice probably has not asked, or paid, for a pre application service but will often take account of the advice when progressing their application.
25. The Council did not tell Mr X that it could not determine an outline application as the site was in a conservation area. It informed him that it needed further information in order to assess the full impact of the proposal on the conservation area. This amounted to a full application. I have found no fault with this advice.
26. Before Mr X submitted a full application, the Council agreed that Mr X’s proposal was acceptable in principle but made it clear it was an officer’s opinion. Mr X took this as a formal agreement and progressed to a full application, incurring the associated costs along the way.
27. When the Council sought further clarification about the condition and value of the trees, it changed its mind and reached the decision it was unacceptable to remove the tree. This in turn, meant the proposal was unacceptable.
28. The Council accepted that the views expressed could be seen to be inconsistent. However, this pre-planning application advice was not binding and if Mr X believed that his planning application could be acceptable then the only way to test that belief was to proceed with the planning application and appeal to a Planning Inspector if unsuccessful.
29. Mr X complained about the timing of the tree report and TPO. He stated that he, nor any other consultees had the opportunity to comment on its findings.
30. Although the formal consultation period had ended, Mr X, and anyone else could have submitted late comments. The Council has discretion to take into account comments that are made after the closing date (but have no obligation to do so).
31. The Council accepted the tree report could have been sought earlier in the process, but said it commissioned it as soon as it realised external expertise was required. There is no fault here.

Conclusion

32. The Council was not at fault for the information it provided. It did not breach an agreement as Mr X claimed. It caveated the advice with a reminder that it was officer opinion and the scheme would be determined at development panel.
33. There was no fault with the consultation process, and more specifically the timing of the tree report. Both the Council and applicant were allowed to submit further information ahead of the planning application’s determination.

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Final decision

34. I have closed this complaint. There was no fault with the Council’s actions when handling Mr X’s planning applications.

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Investigator's decision on behalf of the Ombudsman