Summary: We will not investigate Mr X’s complaint about Council delay and other failings in the handling of his planning application. Mr X complains late and as a developer he had or has rights of appeal to the planning inspector which it was reasonable for him to use. There is no reason to investigate the complaint handling where we are not investigating the underlying issues.

The complaint

1. Ms Y complains for Mr X, of Company A, that the Council delayed dealing with a planning application for a housing development submitted in late 2017. Planning permission was not granted until 2021. Ms Y says the delays have caused the developer substantial financial loss. The Council should explain what went wrong and pay compensation including costs of £350,000.
2. Ms Y complains the Council’s planning permission of 2021 is flawed and includes invalid planning conditions. There have been disagreements about the discharge of planning conditions.
3. The planning permission is subject to a section 106 agreement (developer planning obligation) which was agreed around the same time as the planning permission. Ms Y says there is a history of the Council making unlawful financial demands regarding infrastructure spending relating to the development.
4. Ms Y complains the Council failed to reply or deal properly with complaints about its practice sent in January 2019 and September 2020.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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))
7. 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))
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

9. I considered Ms Y’s information and comments. I have considered case information on the Council’s planning website.

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My assessment

10. I will not investigate this complaint for the following reasons:
11. The planning complaint is outside the Ombudsman’s jurisdiction because the developer company/Mr X had a right of appeal to the planning inspector (see paragraphs 5 and 6).
12. 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
• and aspects of section 106 agreements.

13. I consider it reasonable for Mr X to have used his right of appeal and the information from Ms Y shows the company was aware of the right to do so.
14. This complaint was received in October 2021. Events before October 2020 are also outside the Ombudsman’s jurisdiction because the complaint is made late, outside the ‘permitted period’ of 12 months (see paragraph 8). I will not exercise discretion to investigate because Mr X could have complained sooner. We cannot achieve the outcome/financial remedy which Mr X apparently seeks.
15. Where the substantive matters are not being investigated we will not normally investigate communications and complaint handling. There is no good reason to do so here.

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Final decision

16. The Ombudsman will not investigate Mr X’s complaint about Council delay and other failings in the handling of his planning application. Mr X complains late and as a developer he had or has rights of appeal to the planning inspector which it was reasonable for him to use. There is no reason to investigate the complaint handling where we are not investigating the underlying issues.

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Investigator's decision on behalf of the Ombudsman