The Ombudsman's final decision:
Summary: The Ombudsman has found evidence of fault by the Council in its handling of a reserved matters application submitted by Mr and Mrs Y. The Council has proposed to reimburse Mr and Mrs Y for the application fee and some of the costs associated with applications submitted by them during 2010 and 2011. The Ombudsman considers this proposed remedy suitably addresses the injustice caused to Mr and Mrs X as a result of the fault she has identified. For this reason he has ended her investigation of this complaint.
- Mr X, who is complaining on behalf of Mr and Mrs Y, says the Council’s planning officers gave them inaccurate and misleading advice resulting in them losing their previous planning consent and incurring financial loss.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
How I considered this complaint
- As part of my investigation I have sought clarification from Mr X about the complaint and considered information he provided in response. I made enquiries of the Council and considered the information it provided. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mr X’s comments in response. I made additional enquiries of the Council and provided Mr X with the Council’s response and considered his comments about what the Council had said.
What I found
- Mr and Mrs Y own a site which includes a hotel. They have sought to redevelop the site since 2004 and they have instructed various advisers throughout this process.
- In 2004 Mr and Mrs Y submitted an outlining planning application for an extension of the hotel to form 19 bedrooms and the construction of four houses with parking. The application was approved by the Council.
- Mr and Mrs Y did not proceed with the 2004 approval but submitted a new application in March 2006. This sought permission to extend the hotel to form 23 bedrooms and to construct four detached houses/garages. This application was approved by the Council in June subject to a condition requiring Mr and Mrs Y to enter into a Section 106 agreement. The Section 106 agreement was agreed in principle in July 2006.
- Mr and Mrs Y were not able to proceed with developing the site due to restrictive covenants that prevented them from constructing the houses in accordance with the approved planning permission. For this reason Mr and Mrs Y submitted a new outlining planning application in September 2006. The application sought permission to extend the hotel to form 20 bedrooms and the construction of four houses with a village shop. This application will hereafter be referred to as ‘app2/OUT’.
- The Council approved app2/OUT in December 2006. The approval was subject to a condition requiring Mr and Mrs Y to submit a reserved matters application for approval no later than three years from the decision date. The reserved matters requiring further considerations included scale, appearance, access and landscaping.
- In November 2007 Mr and Mrs Y submitted a reserved matters application relating to the construction of the four houses. However the Council did not consider the matter was appropriate to be considered as a reserved matters application as layout was not a matter for this type of application. The Council with approval of Mr and Mrs Y’s agent changed this application to a full application which was approved by the Council in May 2008. Mr X says Mr and Mrs Y were unaware of this matter.
- On 24 November 2009 Mr and Mrs Y submitted a reserved matters application for appearance and scale as required by the conditions of approval for app2/OUT. The Council approved the application in February 2010. Mr and Mrs Y now had a further two years to implement the development agreed under app2/OUT.
- Mr and Mrs Y submitted a number of planning applications throughout 2010 and 2011. The applications were related to the discharging of conditions for app2/OUT and were accepted and registered by the Council.
- In January 2012 Mr and Mrs Y sought clarification from the Council that digging foundations would represent a material start on site. The Council confirmed that it did.
- However in September 2012 Mr and Mrs X were informed by the Council that the planning permission for app2/OUT had expired in December 2009 as applications for all the reserved matters had not been received in time. This was because no application for access and landscaping were submitted. For this reason the Council returned the application fees for applications submitted by Mr and Mrs Y since 2009.
- Mr and Mrs Y are unhappy with the Council’s actions and say they have incurred costs and lost their planning permission as a result. For this reason they complained to the Council.
- In its reply, the Council accepted it should not have approved the reserve matters application submitted in 2009 and therefore it should not have accepted subsequent applications related to app2/OUT as it had expired. It acknowledged that Mr and Mrs Y have incurred costs as a result of submitting subsequent applications. It offered to make contributions to the costs incurred by them including costs for a Section 106 agreement for an application submitted in 2010. However it also said Mr and Mrs Y’s various representatives should bear some of the responsibility.
- Mr and Mrs Y remain unhappy and have complained to the Ombudsman.
- The Ombudsman will not normally investigate a matter when the person who complained to her has been aware of matters for longer than 12 months. This restriction applies this complaint as Mr and Mrs Y have been aware of the substantive matters complained about since 2012. However I decided to exercise discretion and investigate these matters now because Mr and Mrs Y have been trying to find a way forward with the Council since 2012 and this process has only recently concluded.
- The planning application approved by the Council in December 2006 was subject to a condition requiring Mr and Mrs Y to have a reserved matters application approved within three years of the decision date. Therefore all the reserved matters application needed to be approved by December 2009.
- For this reason I consider the Council to be at fault for approving a reserved matters application to discharge this condition in February 2010. As a result of the fault identified Mr and Mrs Y thought the planning permission granted to them in 2006 was still valid. They submitted further applications for the site on this basis until the Council realised its mistake in 2012. I therefore consider that Mr and Mrs Y have been caused an injustice as a result of the fault I have identified.
- I cannot however ignore that Mr and Mrs Y were being assisted by planning advisers during this period. While this does not excuse the Council’s failings I would have expected the advisers to have ensured that all the reserved matters application were submitted in proper time and to have realised the Council may have wrongly issued approval for reserved matters application. For these reasons I agree with the Council that they must bear some responsibility for what has occurred.
- The Council accepts that it was wrong to approve the reserved matters application and that as a result Mr and Mrs Y have been put to the unnecessary expense of submitting further planning applications in 2010 and 2011. For this reason the Council has refunded the fees for these applications. The Council has also offered to refund part of the costs of Mr and Mrs Y’s advisers who submitted the reserved matters applications and those made 2010 and 2011. The Council also says it will refund the fees of advisers employed by Mr and Mrs X between December 2009 and September 2012 for work done on matters relating to the planning permission granted in December 2006.
- I consider the Council’s proposal adequately addresses the injustice caused by the fault that I have identified. By refunding the application fees and some of the costs associated with applications submitted in 2010 and 2011 the Council has remedied the financial costs incurred by Mr and Mrs Y as a result of it wrongly approving the reserved matters application. For the reasons set out in paragraph 21 I consider the advisers hired by Mr and Mrs Y during this period must accept some responsibility for matters and therefore I do not think the Council’s proposal to only repay some of the fees associated with hiring them is unreasonable.
- Mr X contends that Mr and Mrs Y have lost the planning permission granted to them in 2006 as a result of the fault I have identified. I do not agree. The planning permission expired because the reserved matters application was not submitted in time and I do not see the Council was responsible for this.
- I also note that Mr X contends the reserved matters application submitted in 2009 was not required because Mr and Mrs Y had submitted a reserved matters application in 2007. It is my understanding this application was changed to a full planning application. For this reason it is my view that all parties were aware that at this time that a reserved matters application had not been determined and therefore remained outstanding, hence the submission of such an application by Mr and Mrs Y in November 2009.
- Concerns have also been raised about advice given by the Council that digging foundations at the application site represented a material start on site. I do not consider that Mr and Mrs Y have been caused an injustice as a result of any potential fault by the Council in the advice it gave. This is because the planning permission for the site had already expired as a result of the reserved matters application not being submitted in time. Therefore, even if the Council had wrongly advised Mr and Mrs X about what constituted a material start on site, it would not have had any bearing on planning permission for the site expiring as this had already happened.
- I recommended the Council write to Mr and Mrs Y reiterating its offer and setting out what information they require from them for it to consider reimbursement of the fees incurred for the application and advice in 2010 and 2011. The Council agreed.
- I have found evidence of fault by the Council. I consider the remedy proposed by the Council suitably addresses the injustice caused to Mr and Mrs Y as result of the identified fault. For this reason I have ended my investigation of this complaint.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman