The Ombudsman's final decision:
Summary: The Council was not at fault in not immediately updating planning guidance on its website following a change in the interpretation of a section of planning legislation. The website made it clear that the Council’s website guidance should be seen as non-binding advice and not definitive procedure.
- The complainant, whom I shall refer to as Mr B, complained that the Council published planning guidance on its website which was out of date as it had revised its interpretation of legislation relating to certain applications for changes of use.
- Mr B said he suffered financial loss for time he spent pursuing applications based on the incorrect guidance.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- I examined the details of Mr B’s complaint to the Ombudsman together with his formal complaint to the Council. I then considered the Council’s responses at stage one and stage two of its investigation process. I spoke by telephone with Mr B to clarify some details of his complaint and I then sent written enquiries to the Council. I sent copies of a draft decision statement to Mr B and to the Council and I invited both parties to comment before I reached my final decision.
What I found
- If a person wishes to change the use of a building it is usually necessary to apply to the local planning authority for permission to do so. In 2014 the Government introduced new legislation making it easier to convert unused agricultural buildings into homes. It did this by allowing such changes to be classed as permitted developments, not requiring planning permission. Once the Council receives such an application it now has eight weeks in which to check it meets the relevant criteria and, if so, to issue what is called prior approval.
Mr B’s case
- Mr B is a planning agent. He was approached by two clients who wished to convert farm buildings into dwellings. He consulted the Council’s planning section on its website to ensure he followed the correct process to apply for prior approval for both clients. One client paid various fees for his application including Mr B’s fees as the agent. In all the total was over £1000. A second client paid for an ecology survey and owed Mr B £1000 in fees.
- The Council contacted Mr B on 7 March 2016 to tell him the guidance on the web site did not reflect the Council’s current approach to applications for these changes of use. It said the applications required full design drawings and structural appraisals. Neither was said to be necessary in the guidance on the web site. The process of acquiring those documents was considerably more expensive than the previous procedure and both clients withdrew their applications as a result. The Council removed its guidance on 10 March 2016 and replaced with the updated guidance on 13 July 2016. Mr B complained because the outdated advice on the website caused him to misinform clients, resulting in the loss of those jobs and also some financial loss.
The Council’s explanation
- The Council explained that when the new legislation came into force in 2014 the Government failed to provide any planning guidance on how the legislation should be implemented. As a result, planning authorities had to try and interpret the legislation themselves and to rely on the outcome of planning appeals to gain more clarity about what the law expected them to do. Authorities also obtained advice from legal sources and from other planning authorities and this meant the Council’s guidance changed over time. The Council said it had made it clear that its approach to such applications was liable to change. It received the latest legal guidance from a neighbouring authority in January 2016 and this caused it to review its interpretation of the law.
- The Council also said that its online planning guidance was not binding on the Council and the web site contains the following disclaimer:
“All liability of the Council for any loss, damage or inconvenience caused as a result of reliance on such information is expressly excluded to the fullest extent of the law....This limitation of liability applies to all damages of any kind including direct, indirect or consequential damages, loss of data, income or profit and claims of any third parties.”
- The Council told Mr B that, as an experienced planning agent, he should have been aware that there was uncertainty about the lack of clear guidance over such applications. As a result, there was an onus on him to be completely clear about the process to be followed before he advised his clients.
- The Council offers applicants the opportunity to meet with officers in order to obtain pre-application advice before they submit an application. It told Mr B it would have been prudent in this case to have sought such advice before he submitted the original applications (which were based on the earlier guidance.) Pre-application advice is similar to the website guidance in that it is non-binding but the Council argued that if he had sought advice he would have been party to the most recent legal interpretation of the law.
- The Council also suggested that, as a planning agent, Mr B could have checked on recent appeal decisions himself, knowing this was a difficult area of planning law to interpret for everyone.
- Mr B said he did not see a need to seek pre-application advice because the Council’s position was clearly set out on its web site. He understood the guidance clearly and so he had no reason to ask for any further advice. The Council said it endeavours to share advice with agents and to update its website as soon as possible. In this case it received its latest legal interpretation of the law in January 2016 and removed the guidance. Unfortunately it did not update the website until July 2016, over six months later. I cannot say that was fault as the Council had no duty to include guidance of this legislation on its web site.
- I do not uphold Mr B’s complaint. The Ombudsman has traditionally taken the view that a planning authority’s pre-application guidance is non-binding as long as the Council has included a disclaimer to that effect. That means that she is unlikely to find fault if a formal decision on a planning application differs from the advice that was given.
- It would be reasonable to think that someone seeking planning advice should be able to rely on the Council’s online guidance as being accurate. However, the Council has included a disclaimer on its web site to the effect that it would not be liable for any loss if anyone relied on the guidance. I would expect anyone, whether an agent or not, to then seek further guidance to ensure he or she had as much information as possible before submitting an application.
- I recognise that the Council took six months to update its web site with details of its latest interpretation of the law. This was not fault, as I explained in paragraph 13. The main necessity was to take down the outdated advice. However, I would expect a planning authority to replace any existing guidance more quickly than this if it intended to do so.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman