Summary: Mr X complains the Council gave positive pre application advice on the principle of planning and then changed its position in response to Mr Y’s planning application. The Ombudsman will not investigate Mr X’s complaint at this stage as we could not identify what, if any, injustice the Council’s actions have caused Mr Y until the outcome of the appeal to the Planning Inspector is known.

The complaint

1. Mr X complains on behalf of Mr Y that the Council gave positive pre application advice on the principle of planning and then changed its position in response to Mr Y’s planning application. Mr X states Mr Y relied on this pre application advice and incurred significant expenses in pursuing the planning application.
2. Mr X also complains about failings and a lack of transparency in the way the Council dealt with the planning application.

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The Ombudsman’s role and powers

3. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if 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
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• discussed the issues with Mr X;
• sent a statement setting out my draft decision to Mr X and the Council and invited their comments. I have considered Mr X and the Council’s responses.

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What I found

5. Mr Y applied for pre-application advice on whether the principle of a proposal to build ten dwellings was acceptable. An officer considered the proposal and advised the principle of development would be acceptable subject to site specific issues being addressed.
6. The Council did not caveat its advice or explain that the officer’s pre application advice would not bind the Council in relation to any future applications.
7. Based on the pre-application advice, Mr Y submitted an outline planning application to build 11 dwellings. Shortly after submitting the application Mr Y’s agent asked the Council to confirm it still supported the principle of development at this site. The planning officer confirmed the principle was acceptable.
8. However, a few months later the case officer advised Mr Y the Council had amended its approach to new development and the Council would no longer support the application. The case officer prepared a report for the planning committee recommending refusal and the planning committee refused to grant planning permission.
9. Mr Y has appealed to the Planning Inspectorate against the decision to refuse planning permission, but his appeal has yet to be heard.
10. Mr X complained to the Council about the change from its favourable position in the pre application advice to the recommendation for refusal of the planning application. He does not accept the Council’s explanation for the change in position and has asked the Ombudsman to investigate. Mr X states Mr Y has incurred cost of in excess of £28,000 in obtaining and submitting the application and supporting documents.

Analysis

11. The Ombudsman has no jurisdiction in relation to anything in connection with or having a bearing on the consideration of the planning application once an appeal is lodged. We would not therefore be able to investigate Mr X’s concerns about the case officer; a lack of transparency; the change in the Council’s position; or the information presented to the planning committee. These concerns are all outside the Ombudsman’s jurisdiction. Any investigation would therefore be limited to the pre-application advice.
12. However, I do not consider it appropriate to investigate the complaint about the pre-application advice at his stage. If an investigation were to find fault on the part of the Council, it would not be possible to identify what, if any, injustice the Council’s actions have caused Mr Y until the outcome of the appeal to the Planning inspectorate is known.

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Final decision

13. The Ombudsman will not investigate Mr X’s complaint at this stage as we could not identify what, if any, injustice the Council’s actions have caused Mr Y until the outcome of the appeal to the Planning Inspector is known.

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Investigator's decision on behalf of the Ombudsman