Summary: We cannot investigate this complaint about costs the complainant incurred as a result of the Council’s handling of her certificate of lawfulness applications. The complainant has already used her right of appeal to the Planning Inspector.

The complaint

1. Ms X complains about costs she incurred as a result of the Council’s alleged unreasonable conduct in handling her two certificate of lawfulness applications. In particular, Ms X says:
• she had to pay rent on the property whilst awaiting the outcome of her appeal against the Councils refusal of her first application.
• she was also forced to delay arrangements with her builders, which meant she incurred penalties for breach of contract.
• the Council’s unreasonable refusal of her first application compelled her to submit a second application, with associated application and professional fees.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has already appealed to a government minister. The Planning Inspector acts on behalf of a government minister and can consider appeals about decisions on certificate of lawfulness applications. (Local Government Act 1974, section 26(6)(b), as amended)
4. This restriction applies even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. Furthermore, in R v The Commission for Local Administration ex parte Colin Field (1999) EWHC Admin 754 Mr Justice Keene said:

“I take the point that the statutory appeal to the Secretary of State against a refusal of planning permission provides no compensation for the delay which inevitably occurs. However, the fact is that wherever there is a right of appeal to a minister of the Crown ... there will inevitably be some delay if the right is exercised, as it often will be, and where there is such delay, loss may very well result as it has in the present case. Yet Parliament has chosen expressly to exclude jurisdiction on the part of the Local Government Ombudsman in such cases. It seems to me that in those circumstances Parliament must have contemplated that there would be situations where loss has been suffered and where no remedy for that loss would be provided and yet the Local Government Ombudsman would have no jurisdiction to intervene. I therefore do not find the argument based upon the lack of remedy through the statutory appeal to the Secretary of State persuasive on this particular issue.”

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How I considered this complaint

6. I considered:
• information provided by Ms X.
• information about Ms X’s applications and appeals, available on the Council’s and Planning Inspectorate’s website.
• the Ombudsman’s Assessment Code.

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My assessment

7. Ms X’s appeals did not provide a remedy for all the injustice she says she has suffered. But, with reference to paragraphs 3 to 5 above, the courts have decided that where an appeal has been used we have no jurisdiction to investigate even if some of the injustice suffered has not been put right by the appeal.
8. The Ombudsman cannot therefore investigate Ms X’s complaint.

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Final decision

9. We cannot investigate Ms X’s complaint because she has already appealed to the Planning Inspector.

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Investigator's decision on behalf of the Ombudsman