Summary: The Ombudsman does not have reason to investigate a man’s complaint about the way the Council dealt with his enquiries about the planning status of land he owns. This is mainly because there is no sign that any fault by the Council has caused the man an injustice to warrant our involvement. It is also unlikely we could achieve the planning outcome he is seeking.

The complaint

1. The complainant, who I shall call Mr X, complained about the inadequate and unprofessional way in which the Council had responded to his enquiries about the planning status of a plot of land he owns, and where he used to run a business. In particular Mr X complained that the Council:

• wrongly advised the site was Green Belt land, which conflicted with its previous advice that the land was a brownfield site within the Green Belt;
• wrongly referred to the site by the name of a different site;
• gave prospective purchasers the wrong site details and unreasonably deterred them from pursuing their interest in the site by saying it was Green Belt land; and
• obstructed his enquiries and unreasonably refused to engage in further discussions unless he made a pre-application advice enquiry.

Mr X said the Council’s actions had caused him considerable distress, embarrassment and financial loss. As a remedy Mr X wanted the Council to confirm that his land has always been a brownfield site within the Green Belt with a B8 planning use for storage and distribution, and to pay him compensation.

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The Ombudsman’s role and powers

2. 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’.
3. We provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered the information Mr X provided with his complaint. I also gave Mr X an opportunity to comment on a draft of this decision before I reached a final view in his case. In addition I took account of the Council’s correspondence with Mr X about his complaint.

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What I found

5. Many years ago Mr X bought a plot of land in a rural area, which had been used for commercial purposes in the past. Mr X ran his own business from the site until recently.
6. In 2014 Mr X made a pre-application advice enquiry to the Council proposing a change to B1 Business or residential use. In response the Council advised it was likely that only small-scale redevelopment, or a continuation of B8 use on a similar scale, would be acceptable. The Council also advised Mr X on an informal basis that the site was brownfield land located in the Green Belt.
7. In 2018 Mr X put the site on the market. But he said that when prospective purchasers contacted the Council to enquire about the site’s planning status it told them the land was Green Belt and not to bother pursuing their interest.
8. Mr X made his own enquiries to the Council. He said a planning officer referred to his land by a different name to the one he recognised and which belonged to another site 200 metres away. Mr X said the Council had been giving the wrong site details to enquirers about his land.
9. Mr X said some months later the planning officer acknowledged making a mistake over the site name. But he said in the meantime he had suffered embarrassment in the business community and had lost opportunities to sell his land.
10. In 2019 Mr X’s agent put in another pre-application advice enquiry about a proposal to build several houses on the site. The Council’s advice was it would be unlikely to support a planning application on that basis as it would be inappropriate development in the Green Belt.
11. In late 2019 and early 2020 Mr X made further contacts with the Council about the name and status of his land, and communicated with several different officers in different parts of the Planning service. In the course of these contacts the planning officer Mr X had spoken to previously apologised for their mistake over the site name.
12. Another officer also advised Mr X informally that his site was likely to be considered as ‘previously developed land’ (PDL) within the Green Belt. Under current national planning policy development on PDL may be seen as an exception to the normal rules on inappropriate development in the Green Belt, as long as that development does not cause substantial harm to the Green Belt and contributes to a local need for affordable housing.
13. But the Council also advised Mr X it could not go any further in responding to his enquiries unless he made another pre-application advice enquiry.
14. Mr X subsequently made a formal complaint to the Council about these matters Dissatisfied with its response, he then brought his complaint to the Ombudsman.

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Analysis

15. However I consider that we do not have grounds to start an investigation of Mr X’s complaint.
16. First, it seems there was some fault by the Council by referring to Mr X’s land by the wrong name. But I note the Council has apologised for this mistake. It also explained that different names have been used for the site over the years and this had caused some of the confusion. However I do not see there is evidence to show that Mr X suffered a significant injustice from this which warrants a further remedy.
17. In particular, I have seen no evidence about what enquiries prospective buyers may have made to the Council, who they spoke to, or what information was given in response. In the circumstances I am not convinced we are likely to be able to justify a finding of fault against the Council on the basis it gave out incorrect or misleading information about Mr X’s land. In addition, Mr X has not explained how he was caused the serious embarrassment he claims to have suffered because of the Council using the wrong name for the site.
18. I am also not convinced that the Council’s advice about the status of Mr X’s land in the Green Belt so far has been significantly inconsistent or inaccurate, or that it has been unhelpful in this respect.
19. In particular the maps I have seen which are included in the Council’s Local Plan documents appear to show Mr X’s site as in the Green Belt. So I am not sure we could fault it for giving this advice about the site’s status, especially if the advice was sought on an informal basis, or for informing Mr X that Green Belt policies would apply to his land.
20. I also consider that in its more detailed responses to Mr X’s pre-application enquiries and complaints the Council has recognised the existing B8 use development on the site and given appropriate advice that that this would be taken into account in dealing with any formal planning applications, in addition to Green Belt considerations.
21. I also suggest we are unlikely to be in a position to fault the Council for the level of advice it has given Mr X so far on an informal basis as there are limits on what advice it could be expected to give in response to casual enquiries.
22. In addition I note national planning policy encourages councils to offer pre-application advice services. So having set up its own pre-application advice service it seems to me appropriate for the Council to expect Mr X to use that process again to obtain a more informed view about any planning proposals he has, even though he has used the service before.
23. Mr X evidently considers his land is a brownfield site with B8 use within the Green Belt and he wants a declaration from the Council to that effect. But I do not see the Council should necessarily be expected to make a definitive decision about the planning status of Mr X’s land in the absence of a formal planning application.
24. If Mr X thinks a different use of his land which might enhance its value would be acceptable, it seems to me he could test this by submitting his own planning application for a development in that use class, or by applying for a Lawful Development Certificate for a proposed change in use. If the Council refuses these applications Mr X would then have a right of appeal to the independent Planning Inspectorate if he felt the decisions were wrong on planning grounds.
25. I should add that the Ombudsman is not a planning authority and we do not have a remit to make rulings on the merits of the Council’s planning decisions. We can only consider if there is fault in the way the Council handles planning matters, and we only pursue complaints where fault has caused a significant personal injustice.
26. But I consider there is insufficient sign of fault by the Council which has caused Mr X an injustice to warrant us pursuing his case or seeking a further remedy. In the circumstances I also consider we could not achieve the outcome he is seeking from his complaint.

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Final decision

27. The Ombudsman does not have reason to investigate Mr X’s complaint about the way the Council dealt with his planning enquiries. This is because there is no sign of fault by the Council in this respect which has caused Mr X an injustice to warrant our further involvement in his case. In addition, we could not achieve the outcome he wants from his complaint.

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Investigator's decision on behalf of the Ombudsman